i

May 2017

TABLE OF CONTENTS

COMMISSION DECISIONS

05-11-17 JOHN RICHARDS CONSTRUCTION WEST 2014-440-M Page 959

05-31-17 BUSSEN QUARRIES, INC. CENT 2015-385 Page 970

COMMISSION ORDERS

05-05-17 PROSPERITY COAL, LLC SE 2016-187 Page 989

05-11-17 CONTINENTAL CEMENT

COMPANY, LLC 

CENT 2016-458-M Page 995

05-11-17 NYRSTAR GORDONSVILLE, LLC SE 2016-255-M Page 998

05-11-17 PETE LIEN AND SONS, INC. WEST 2016-570-M Page 1001

05-17-17 FERRAIOLO CONSTRUCTION YORK 2016-47-M Page 1004

05-18-17 SUSQUEHANNA COAL COMPANY PENN 2016-278 Page 1008

ADMINISTRATIVE LAW JUDGE DECISIONS

05-05-17 M-CLASS MINING, LLC LAKE 2015-587 Page 1013

05-05-17 SEC. OF LABOR O/B/O JERRY 

RAMSEY v. VULCAN 

CONSTRUCTION MATERIALS

SE 2016-0145-DM Page 1033
ii

05-09-17 MICHAEL WILSON, JUSTIN 

GREENWELL & BRANDON 

SHEMWELL v. ARMSTRONG 

COAL COMPANY, INC.

KENT 2015-673-D Page 1072

05-09-17 TEICHERT AGGREGATES WEST 2017-0028 Page 1098

05-11-17 FREEPORT-MCMORAN SIERRITA,

INC.

WEST 2015-0873-M Page 1105

05-23-17 WEBSTER COUNTY COAL, LLC KENT 2016-233 Page 1131

05-23-17 MAGORIAN MINE SERVICES WEST 2016-270-M Page 1148

05-25-17 BUNDY AUGER MINING, INC. WEVA 2015-1036 Page 1165

ADMINISTRATIVE LAW JUDGE ORDERS

05-02-17 THE AMERICAN COAL COMPANY LAKE 2011-0013 Page 1173

05-18-17 SUNBELT RENTALS, INC. VA 2013-0291 Page 1183

05-19-17 THE AMERICAN COAL COMPANY LAKE 2011-0013 Page 1187
iii

Review was granted in the following cases during the month of May 2017:

Jeffrey Pappas v. Calportland Company and Riverside Cement Company, Docket No. WEST 

2016-264-DM (Judge Paez, March 31, 2017)

Secretary of Labor v. M-Class Mining, LLC, Docket No. LAKE 2012-519 (Judge Rae, April 7, 

2017)

Review was denied in the following cases during the month of May 2017:

Daniel B. Lowe v. Veris Gold USA, Inc., et al. and Matthew A. Varady v. Veris Gold USA, Inc., 

et al., Docket Nos. WEST 2014-614 DM, et al (Judge Simonton, March 27, 2017)

Secretary of Labor v. Arnold Stone, Inc., Docket No. CENT 2016-540-M (Judge Miller, April 

11, 2017)

COMMISSION DECISIONS
39 FMSHRC Page 958
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 11, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket Nos. WEST 2014-440-M 

 v. WEST 2015-101-M 

 

JOHN RICHARDS CONSTRUCTION 

 

Before: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

DECISION

BY THE COMMISSION: 

These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2012) (“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) issued a citation to John Richards Construction (“JRC”) for its refusal 

to permit an MSHA inspector entry to its mine in violation of section 103(a) of the Act, 30 

U.S.C. § 813(a).1

 Another citation was issued pursuant to 30 U.S.C. § 814(a) after a different 

MSHA inspector determined that JRC’s fire extinguishers had not been timely inspected as 

required by 30 C.F.R. § 56.4201(a)(2).2 At issue in these cases is whether the Commission 

Administrative Law Judge erred in granting the Secretary’s motions for summary decision. 

For the reasons discussed below, we affirm the Judge’s decision regarding the refusal of 

entry violation. We also vacate the Judge’s grant of summary decision regarding the fire 

extinguisher citation and remand for further proceedings. 

 1

 30 U.S.C. § 813(a) provides: 

Authorized representatives of the Secretary . . . shall make frequent 

inspections and investigations in . . . mines each year for the purpose of . 

. . determining whether there is compliance with the mandatory health or 

safety standards. . . . In carrying out the requirements of this subsection, 

no advance notice of an inspection shall be provided to any person. . . . 

For the purpose of making any inspection or investigation under this 

chapter, the Secretary . . . shall have a right of entry to, upon, or through 

any coal or other mine. 

2

 30 C.F.R. § 56.4201(a)(2) states that : “Firefighting equipment shall be inspected . . . 

[a]t least once every twelve months. . . .” 

39 FMSHRC Page 959
I. 

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) [t]hat there is no genuine issue as to any material fact; and 

(2) [t]hat the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 

2700.67(b). Material facts are those that may affect the outcome of the case under the governing 

law. The mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247–48 (1986). 

The Commission has long analogized summary decision to summary judgment under 

Rule 56 of the Federal Rules of Civil Procedure, Fed R. Civ. P. 56. See, e.g., Kenamerican Res., 

Inc., 38 FMSHRC 1943, 1946 (Aug. 2016); Energy West Mining Co., 16 FMSHRC 1414, 1419 

(July 1994). As with summary judgment under Rule 56, appellate review of summary decisions 

is de novo, in that the reviewing court applies the same standard as the trial court. See, e.g., 

Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). When the Commission 

reviews a summary decision and determines that the record before the Judge contained disputed 

material facts, the proper course is to vacate the grant of summary decision and remand the 

matter for an evidentiary hearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316-19 

(Aug. 1995); Missouri Gravel Co., 3 FMSHRC 2470, 2473 (Nov. 1981). 

II. 

Discussion 

A. Citation No. 8762607 - Refusal of Entry 

1. Factual and Procedural Background 

The Richards Pit is a sand and gravel mine in Seeley Lake, Montana, owned and operated 

by JRC, which is owned by John Richards. On Friday, July 19, 2013, at 11:40 a.m., MSHA 

Inspector Peter Crites arrived at the Richards Pit to conduct a regular inspection. Upon arrival, 

Crites proceeded to the office building in front of the mine, where he notified JRC office 

personnel, Cindy Llewellyn and Kim Myre, that he was there to conduct an inspection and asked 

to speak to Richards. Llewellyn told Crites that Richards was in Missoula, Montana, on business, 

and that she could not let Crites enter the mine. Crites asked if there was anyone else on-site who 

could accompany him on an inspection, and Llewellyn responded that she “thought Kerry the 

mechanic was out there,” but regardless, she could not let the inspector enter. S. Mot. for Sum. 

Dec., Ex. 1 at 2-3; Ex. 2 at 1; Exs. 9-10. 

Llewellyn called Richards while Crites went outside to his vehicle to call his supervisor, 

Curtis Petty. Llewellyn then went out on the porch to let Crites know that Richards was on the 

phone, and that he had directed her to lock the gate to the vehicle entrance, which she then 

proceeded to do. Llewellyn also informed Crites that Richards had further instructed her and 

39 FMSHRC Page 960
Myre to prevent access by parking their vehicles in front of the gate.3

 Crites spoke with Richards 

on the phone, and Richards told the inspector that “[he] could not enter the premises without 

[Richards] being there to accompany him.” Ex. 1 at 3; Ex. 2 at 2; Exs. 9-11; JRC’s Opp. to Mot. 

for Sum. Dec. at 1; JRC’s Mot. for Oral Arg. at 1; JRC Br. at 1. According to Crites, Richards 

“repeated this direction to not enter the mine site at least four (4) more times.” Ex. 1 at 3. JRC 

has not disputed this claim. 

Crites subsequently spoke to Richards again on the phone. Richards informed Crites that 

he would be returning sometime between 4:00 and 4:30 p.m., and reiterated that Crites should 

not enter the property until his arrival. Shortly after 12:00 noon, Llewellyn and Myre got into 

their cars and drove away. As she was leaving, Llewellyn told Crites that she would return to the 

mine. 

At 12:15 p.m., Crites called his supervisor again, who instructed him to issue the citation 

and wait until 4:00 p.m. for Richards to arrive. Crites then issued a citation for JRC’s refusal to 

allow MSHA to enter the mine in violation of section 103(a) of the Mine Act. On the face of the 

citation, Crites stated: “John Richards is well aware of this provision of the Mine Act, and has 

impeded past inspections.” Ex. 1-A at 2. He waited until 4:15 p.m., at which time Richards had 

not arrived and Llewellyn had not returned. He left the citation on the front porch of the office at 

4:15 p.m. and drove away at 4:20 p.m. 

JRC contested the proposed penalty of $1,000. On June 10, 2015, the Secretary filed a 

Motion for Summary Decision asserting that there were no material facts in dispute. JRC 

opposed the motion and moved for oral argument on the Secretary’s motion.4

2. The Judge’s Decision 

In an order issued on August 25, 2015, the Judge granted the Secretary’s motion for 

summary decision, finding that after looking at the record in the light most favorable to JRC, 

there was no genuine issue as to any material fact, and that oral argument was unnecessary to 

resolve the matter at issue. 37 FMSHRC 1813, 1814 (Aug. 2015) (ALJ). Specifically, the Judge 

disagreed with JRC’s assertion that it was disputed whether Llewelyn locked the gate, because 

based on written statements submitted by both Llewelyn and Myre, Llewelyn locked the gate 

following instructions from Richards. Ex. P-2 at 10-11. Additionally, Richards’ own written 

notes expressly stated that he instructed Llewellyn to lock the gate and block access. The Judge 

found that the employee’s act of locking the mine gate upon Richards’ orders denied Inspector 

Crites entry. She also determined that Crites was denied access to the mine by Richards when, 

according to JRC in its opposition to the Secretary’s motion, Richards stated that “I spoke to Mr. 

Crites on the telephone and stated that Inspector Crites could not enter the premises without me 

 3

 There is no indication in the record regarding whether Llewellyn and Myre actually 

moved their vehicles to the gate. 

4

 JRC has been represented by the owner, Mr. Richards, who is not an attorney. 

39 FMSHRC Page 961
being there to accompany him.” 5 37 FMSHRC at 1815, 1817; Ex. P-2 at 9, 11; JRC’s Reply to 

Pet. Mot. for Sum. Dec. at 1. 

The Judge dismissed JRC’s claim that Inspector Crites failed to follow proper 

procedures. She noted that while JRC quoted a number of requirements from MSHA’s program 

policy manual (“PPM”), it failed to specify which requirement the inspector failed to follow or 

how the alleged failure would affect the outcome of the case. 

The Judge further determined that the facts in dispute were not material to the disposition 

of the case. Specifically, she noted that the validity of JRC’s allegation that Crites did not 

observe fresh gravel at the mine, contrary to the inspector’s assertion, would have no bearing on 

the Secretary’s right of entry under section 103(a). The Judge also concluded that resolution of 

whether Crites failed to give JRC personnel notice that it would be cited for refusing entry was 

unnecessary. She found that the Mine Act imposes no requirement that an inspector threaten or 

otherwise warn an operator of an impending citation in order to achieve compliance. The Judge 

concluded that based on the circumstances of the present case and JRC’s history of interference 

with MSHA’s authority to inspect its facility, a finding of high negligence and a penalty of 

$1,000 were appropriate. 37 FMSHRC at 1815-16, 1820-1821. 

JRC filed a petition for discretionary review with the Commission challenging the 

Judge’s order. We granted the petition. 

3. Disposition

a. The Material Facts 

The Supreme Court has recognized that section 103(a) of the Mine Act authorizes 

warrantless inspections by granting MSHA inspectors the right of entry to, upon, or through any 

mine, without advance notice, to determine if there is compliance with mandatory health and 

safety standards. If a mine operator refuses to allow section 103(a) inspection, the Secretary is 

authorized to institute a civil action to obtain injunctive or other appropriate relief. Donovan v. 

Dewey, 452 U.S. 594, 596-97 (1981); see also U.S. Steel Corp., 6 FMSHRC 1423, 1430-31 (June 

1984). Consistent with Dewey, the Commission has long held that a mine operator’s refusal to 

permit inspections is a violation of section 103(a). Calvin Black Ent., 7 FMSHRC 1151, 1156 

 5

 The Judge characterized Richard’s employees locking the mine gate as “indirect” 

denial of entry and held that Mr. Richards’ verbal order not to enter the mine was a “direct” 

denial. MSHA’s Program Policy Manual (“PPM”) provides that “[d]irect denials are those in 

which an operator or the operator’s agent informs an inspector that an inspection of the mine will 

not be permitted.” MSHA PPM, Vol. I, p. 11 (Oct. 2010). It further states that “[i]ndirect denials 

are those in which an operator or his agent does not directly refuse right of entry, but takes 

roundabout action to prevent inspection of the mine by interference, delays, or harassment. There 

must be a clear indication of intent and proof of indirectly denying entry. For example, access to 

the mine is blocked by a locked gate or other means of blockage. . . . [or] [w]ithdrawing mine 

personnel when the inspector arrives.” MSHA PPM, Vol. I, p. 12-13 (Oct. 2010). We do not find 

it necessary to draw the distinction between the types of unlawful denials in deciding this case. 

39 FMSHRC Page 962
(Aug. 1985); Waukesha Lime & Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981); U.S. 

Steel, 6 FMSHRC at 1430-31. 

There is no dispute regarding whether MSHA has jurisdiction over the Richards Pit or 

whether Inspector Crites was there for a lawful purpose, i.e., to perform an inspection of the 

mine pursuant to the Mine Act.6 Therefore, the only remaining fact material to this case is 

whether MSHA Inspector Crites was denied entry to the Richards Pit on July 19, 2013.7

 JRC 

argues that Inspector Crites was not refused entry by Llewellyn or Richards, and that Richards 

only requested that he be given the opportunity to accompany Crites on the inspection. 

After reviewing the written statements of JRC personnel, as well as the statement and 

notes of Inspector Crites, we conclude that there is clear and unequivocal proof that Crites was 

denied entry to the Richards Pit in violation of the Act. 

According to Llewellyn’s written statement, she said that “I told [Crites] John was in 

town at meetings all day and that I couldn’t let him in. He asked if anyone else was outside to 

show him around and I told him I thought Kerry the mechanic was out there but that again 

couldn’t let him in. . . . I told him I would have to call John.” 8 Ex. 2 at 10. Richards also stated in 

his notes that “I told Pete I would be back at 4:30 or so and we could do inspection then.” Ex. 2 

at 11. In his reply to the Secretary’s motion for summary decision, Richards admitted that “I 

spoke to Crites on the telephone and stated that Inspector Crites could not enter the premises 

without me being there to accompany him.” JRC’s Reply at 1. 

 6

 JRC asserts that according to JRC’s office staff, Crites indicated that he was at the mine 

because MSHA had received a complaint. This fact is immaterial because whether Crites was 

there to investigate an anonymous safety complaint or conduct a regular inspection. Both are 

authorized under the Act. See 30 U.S.C. §§ 813(a) and (g)(1). 

7

 JRC asserts that MSHA needed Richards’ permission to cross private land to reach the 

mine site. Contrary to JRC’s assertion, the Mine Act broadly defines “mine” to include private 

ways and roads appurtenant to the area of land from which minerals are extracted. 30 U.S.C. 

§ 802(h)(1). This provision has been read to extend MSHA’s jurisdiction to private roads leading 

to mine facilities. See Sec’y of Labor v. Nat'l Cement Co. of Cal., 573 F.3d 788, 795 (D.C. Cir. 

2009). Accordingly, MSHA’s inspectors would not require permission to travel the private 

roadway providing access to the Richards Pit.

8

 JRC improperly attempts to put forth a new account of the facts in an affidavit from its 

employee Cindy Llewelyn, executed nearly a month after issuance of the Judge’s order granting 

the Secretary summary decision. See PDR, Ex. 1. In the affidavit, Llewelyn completely 

contradicts her previous written statement introduced before the Judge. Nonetheless, because the 

affidavit together with a photo of the mine’s gate and entry (PDR, Exs. 1, 3) are new evidence 

introduced for the first time on appeal, and not entered before the Judge for consideration, they 

will not be considered by the Commission. 30 U.S.C. § 823(d)(2)(C) (“For the purpose of review 

by the Commission under paragraph (A) or (B) of this subsection, the record shall include: (i) all 

matters constituting the record upon which the decision of the administrative law judge was 

based . . . No other material shall be considered by the Commission upon review.”). 

39 FMSHRC Page 963
JRC further insists that Crites was not physically barred entry because the gate was never 

actually locked and, in any eventuality, Crites could easily step over the gate to access the mine.9

Whether the gate was actually locked is not material to the disposition of this case. By expressly 

telling Crites that the gate would be locked and that he could not enter, JRC made clear that it 

would not permit Crites entry into the mine. Requiring more than such a clear expression of 

intent to show an inspector had been denied entry to a mine would risk forcing MSHA’s 

inspectors into potentially dangerous confrontations with uncooperative operators. See Calvin 

Black Ent., 7 FMSHRC at 1157 (“MSHA inspectors are not required to force entry or to subject 

themselves to possible confrontation or physical harm in order to inspect.”). 

 

Moreover, Richards’ insistence that he accompany Crites on the inspection before he 

could enter the premises effectively amounts to a demand for prior notice of the inspector’s visit. 

As correctly noted by the Judge, section 103(a) expressly requires that “no advance notice of an 

inspection shall be provided to any person.” 30 U.S.C. § 813(a); 37 FMSHRC at 1818; Calvin 

Black, 7 FMSHRC at 1156. Delaying an MSHA inspection once it is known that an inspector has 

arrived can compromise the value of an inspection. Richards could have designated any one of 

the employees in the office that day or on the mine site to accompany Crites on the inspection, 

but he refused. 

JRC refused to allow Crites entry into the Richards Pit and its agents prevented access to 

the mine. This violated MSHA’s right of entry under section 103(a) of the Mine Act. The record 

before the Judge reveals no genuine issue of material fact in dispute and wholly supports her 

grant of the Secretary’s motion for summary decision. 

b. Degree of Negligence and the Penalty Amount 

We also affirm the Judge’s decision that JRC was highly negligent in its decision to 

refuse MSHA access to the mine, because the operator was well aware of MSHA’s right to 

inspect, and yet acted intentionally in contravention of that right. The Commission has held “that 

an operator’s intentional violation constitutes high negligence for penalty purposes.” Topper 

Coal Co., Inc., 20 FMSHRC 344, 350 (Apr. 1998) (quoting Consolidation Coal Co., 14 

FMSHRC 956, 969-70 (June 1992)). 

 9

 The written statements of JRC’s employees directly contradict JRC’s assertion that the 

gate was never locked. Llewellyn states in her affidavit that “I told [Crites] per John [Richards] I 

was to go lock the gate at which time I did.” Ex. 2 at 10. Kim Myre provides the same account, 

stating, “Cindy locked the gate per John’s instructions.” Id. at 9. These statements are further 

corroborated by the personal notes of Richards, who noted, “Cindy – instructed to lock gate and 

block access.” Ex. 2 at 11; see also Ex. 2 at 1 (“John said to lock the gate as no one was working 

in the pit. . . . I went and closed the chain on the gate. Gate was only open for the ready mix 

driver.”). 

39 FMSHRC Page 964
Finally, we affirm the Judge’s penalty determination of $1,000. In discussing each of the 

statutory penalty criteria,10 the Judge placed particular emphasis on JRC’s history of similar 

behavior, which she found to be “particularly egregious.” 37 FMSHRC at 1820. While JRC 

asserts that the proposed penalty would be devastating to the mine’s continued operation, it 

proffered no evidence that would support its claim. Id. The Commission has held that “[i]n the 

absence of proof that the imposition of authorized penalties would adversely affect [an 

operator’s] ability to continue in business, it is presumed that no such adverse [e]ffect would 

occur.” Sellersburg Co., 5 FMSHRC 287, 294 (Mar. 1983) (citing Buffalo Mining Co., 2 IBMA 

226, 247-48 (Sep. 1973)). 

B. Citation No. 8762878 – Fire Extinguisher Inspection

1. Factual and Procedural Background

On July 29, 2014, MSHA Inspector David Small arrived at the Richards Pit to conduct a 

regular inspection. While there, Small examined the mine’s fire extinguishers. JRC was unable to 

produce records demonstrating that the inspection had occurred. According to Small’s inspection 

notes from that day, Richards told him that he was unaware that he needed to conduct yearly 

inspections, and asked Small for additional time to have the extinguishers examined. Small 

inferred from these facts that annual inspections had not been performed. Small issued Citation 

No. 8762878 for JRC’s failure to conduct the annual inspection of its fire extinguishers, in 

violation of 30 C.F.R. § 56.4201(a)(2). Ex. P-1 at 1-2; Ex. P-4 at 1; S. Mot. for Sum. Dec. at 5; 

37 FMSHRC 2490, 2491-92 (Oct. 2015). The citation states: 

The yearly inspection of the fire extinguishers were [sic] not conducted at 

the mine site. At least once every 12 months checks shall be conducted to 

determine the condition of the extinguishing agent, mechanical parts, hose, 

nozzle, and vessel to determine that the extinguisher will function 

properly. Based on continued mining operations a person could be injured 

if a fire were to occur and a fire extinguisher did not function properly. 

S. Mot. for Sum. Dec., Ex. 2 (emphasis added). 

Approximately one week later, on August 6, 2014, JRC had Missoula Fire Equipment 

(“MFE”) perform the annual inspection of the extinguishers. JRC later provided Small with the 

invoice from MFE as proof of examination, and the citation was abated. S. Exs. 3, 5. The 

Secretary subsequently filed a petition for civil penalty, which was assigned to the same Judge as 

the previous docket. In JRC’s answer to the Secretary’s petition, the operator did not provide a 

 10 In assessing civil monetary penalties, section 110(i) of the Act, 30 U.S.C. § 820(i), 

requires that the Commission 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. 

39 FMSHRC Page 965
reason for why it was unable to produce the inspection records at the time of the MSHA 

inspection. It stated: “Deny. Defendant has previously provided MSHA with reasons or 

Defendant is without knowledge to respond at this time.” JRC Ans. to Pen. Pet. at 1.11

However, through subsequent submissions and conference calls with the Judge, Richards 

claimed that an inspection of the fire extinguishers had, in fact, been timely performed and that it 

was current at the time of Small’s inspection. JRC provided a copy of the alleged record of 

timely inspection, along with an affidavit from JRC employee Mark Smith, who allegedly 

performed the timely inspection.12 JRC Br. Opp. Sum. Dec., Exs. R-1, R-2. During one of four 

conference calls with the Judge, Richards stated that he did not have the record of inspection 

available at the time of Small’s inspection. He did not know that it existed and needed to 

question the person who performs the fire extinguisher examinations. He then stated that he had 

part of the records at the time, but the other records were in a different file that he could not find. 

JRC PHR at 2; JRC Br. at 2; Exs. R-l, R-2; Aug. 14, 2015 Telec. Tr. 9-10; 37 FMSHRC at 2492. 

The Secretary filed a motion for summary decision asserting that there were no material 

facts in dispute and that JRC was in violation of section 56.4201(a)(2) because it had failed to 

provide current annual inspection records for the fire extinguishers. JRC opposed the motion. 

The Judge granted the Secretary’s motion for summary decision. She acknowledged the 

discrepancy between Richards’ alleged statements at the time of Small’s inspection and 

Richards’ later assertion of a timely inspection, but nonetheless found the dispute immaterial. 

The Judge determined that “its resolution does not affect ‘the outcome of the suit under 

governing law,’” and that the issue before her was “not whether the annual inspections had been 

performed, but whether, at the time of inspection, the operator was able to demonstrate to the 

inspector compliance with the standard by producing adequate documentation of timely 

inspections.” 37 FMSHRC at 2492, quoting Anderson, 411 U.S. at 248. 

The Judge concluded that even when viewing the evidence in the light most favorable to 

the operator – that the extinguisher had been timely inspected, but the documentation was 

unavailable – the “standard is only enforceable if the operator demonstrates to the inspector, 

through records or tags, that the fire extinguishers have been properly inspected.” Id. at 2493-94. 

Consequently, she concluded that JRC was in violation of the standard upon finding that it was 

undisputed that JRC had failed to provide the inspector with proof of a timely inspection. Id. at 

2494, 2496. The Judge did not consider the evidence produced by JRC allegedly proving that the 

annual inspection had been performed in accordance with the regulation. Aug. 14, 2015 Telec. 

 11 By order dated May 20, 2015, granting a motion of the Secretary, the Judge designated 

Docket WEST 2015-101-M, involving Citation No. 8762878, for Simplified Proceedings under 

Commission Rule 101. 29 C.F.R. § 2700.101. Richards opposed the motion and requested the 

opportunity to take depositions. 

12 According to Mark Smith’s affidavit, he “performed the annual inspection of John 

Richards Construction fire extinguishers on July 1, 2014.” PDR, Ex. 1. 

39 FMSHRC Page 966
Tr. 9-12. JRC filed a petition for discretionary review appealing the Judge’s decision, which we 

granted.13

2. Disposition 

 We conclude that summary decision here was inappropriate because a genuine issue of 

material fact remains. 

Section 56.4201(a)(2) requires that “[f]irefighting equipment shall be inspected . . . [a]t 

least once every twelve months.” This language unequivocally requires an annual inspection of 

fire extinguishers. In the instant case, however, there remains a factual dispute as to whether the 

operator performed the necessary annual inspection. 

According to Inspector Small, on July 29, 2014, Richards told Small that he was unaware 

of the annual inspection requirement, and then he asked Small for additional time to have the 

extinguishers inspected. S. Mot. for Sum. Dec., Exs. 1, 4. The citation was terminated on August 

13, 2014, after JRC produced a record showing that MFE performed the inspection on August 6. 

However, in its April 2015 pre-hearing report, JRC asserted that the fire extinguishers in 

fact had been timely inspected. Later, during a conference call, JRC told the Judge that the 

inspection records were not produced because Richards had not known they existed and did not 

know where they were. JRC provided a copy of the alleged record of timely inspection, along 

with an affidavit from JRC employee Mark Smith, who allegedly performed the timely 

inspection.14 JRC Br. Opp. Sum. Dec., Exs. R-1, R-2. Nonetheless, the Judge found a violation 

of section 57.45201(a)(2) because the operator did not produce a record of an inspection at the 

time of the inspection. 

We conclude that the Judge erred because the plain terms of the cited provision, section 

57.45201(a), require a determination of whether an annual inspection was conducted. That 

section does not state a requirement for the immediate production of a record of the inspection. 

Consequently, in light of Richards’ submission of evidence purporting to show compliance with 

the inspection requirement, a material fact is in dispute regarding whether JRC failed to conduct 

the annual inspection as alleged in the citation. 

As noted, the Judge found JRC in violation of section 56.4201(a)(2) based on the 

operator’s failure to provide proof of a timely inspection to Small at the time of the MSHA 

inspection. Although the failure to provide proof of a timely examination during an MSHA 

 13 JRC also appealed the Judge’s decision regarding Citation No. 8762879, but the 

Commission did not grant review of that citation. 

14 According to Mark Smith’s affidavit, he “performed the annual inspection of John 

Richards Construction fire extinguishers on July 1, 2014.” PDR, Ex. 1. 

39 FMSHRC Page 967
inspection suggests a violation of section 57.45201(b) of the regulations,15 provision of a 

certification record at the time of inspection is not an element of the violation charged here – that 

is, a failure to perform an inspection as required by section 56.4201(a)(2). 

Section 57.45201(a)(2) mandates the performance of an annual inspection whereas 

section 57.45201(b) requires the creation of the proof of inspection – each requiring the 

resolution of a different factual question. Therefore, while an operator’s failure to produce a 

record of the certification required by subparagraph (b) provides sufficient grounds upon which 

to charge a violation of paragraph (a), it does not necessarily answer the ultimate factual question 

of whether JRC actually performed the section 56.4201(a)(2) inspection. See LJ’s Corp., 14 

FMSHRC 1278, 1280 (Aug. 1992) (“the absence of certification of inspection and testing of [a] 

mine rescue apparatus . . . is sufficient to establish a prima facie case of a violation.”). 

Thus, an operator’s inability to provide proof of an inspection at the time of inspection, 

standing alone, is not dispositive of a violation of paragraph (a). Indeed, the Commission has 

held that “upon a showing by the Secretary that the operator’s records indicate the required 

certification was not made, the violation is established unless the operator can show that such 

inspection actually occurred within the relevant time period.” Id. at 1280,16 citing Southern Ohio 

Coal Co., 14 FMSHRC 1, 13 (Jan. 1992); Mid-Continent Res., 11 FMSHRC 505, 509 (April 

1989). We reasoned that there may be instances where the operator may have performed the 

required inspection, but, for some reason, failed to make a record of it. Under these 

circumstances, the operator may present evidence that the required inspection was performed. 

LJ’s Corp., 14 FMSHRC at 1280. 

In the instant case, the Judge did not consider the alleged proof of inspection record and 

Smith affidavit presented by JRC on the ground that the evidence had not been produced at the 

time of the inspection. However, in accordance with the precedent established in LJ’s Corp., JRC 

is allowed to rebut the Secretary’s prima facie case by providing credible evidence that the 

extinguisher was inspected in accordance with paragraph (a) requirements. On remand, the Judge 

must consider and weigh JRC’s rebuttal evidence against other evidence in the record. 

Accordingly, we vacate the Judge’s grant of summary decision on this citation and 

remand to the Judge for further discovery and a full hearing on the merits. On remand, the Judge 

 15 30 C.F.R. § 57.45201(b) requires: 

At the completion of each inspection or test required by this standard, the person 

making the inspection or test shall certify that the inspection or test has been made 

and the date on which it was made. Certifications of hydrostatic testing shall be 

retained until the fire extinguisher is retested or permanently removed from 

service. Other certifications shall be retained for one year. 

16 In LJ’s Corp., a mine operator was cited for failure to test a rescue apparatus within the 

30-day period prescribed by 30 C.F.R. § 49.6(b) when it could not produce records evidencing 

that the required tests had been done. 14 FMSHRC at 1278. 

39 FMSHRC Page 968
must make the necessary finding of fact and credibility determinations as stated in this 

decision.17

III. 

Conclusion 

For the reasons set forth above, the Judge’s order granting the Secretary’s motion for 

summary decision regarding Citation No. 8762607 is affirmed. We also vacate the Judge’s grant 

of summary decision regarding Citation No. 8762878 and remand for further proceedings 

consistent with this decision. 

 

 

 /s/ William I. Althen 

William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 17 Due to the issues involved and our order of remand, simplified proceedings are hereby 

discontinued here and this case shall proceed under the Commission’s conventional rules. 

 

39 FMSHRC Page 969
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 31, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket No. CENT 2015-385 

 v. 

 

BUSSEN QUARRIES, INC. 

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

DECISION

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The Department of Labor’s Mine 

Safety and Health Administration (“MSHA”) issued a citation to Bussen Quarries, Inc., for 

allegedly violating the requirement of 30 C.F.R. § 56.15005 that “[s]afety belts and lines shall be 

worn when persons work where there is danger of falling.” A Commission Judge affirmed the 

citation in all respects. 37 FMSHRC 2786 (Dec. 2015) (ALJ). Bussen is appealing the Judge’s 

violation, significant and substantial (“S&S”),1 and high negligence determinations.2

The Commissioners are evenly divided on whether to affirm the Judge’s decision in its 

entirety, or to reverse the finding of violation. The effect of the split decision is to allow the 

Judge’s decision to stand as if affirmed. Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 

1990), aff’d, 969 F.2d 1501 (3d Cir. 1992).

 1

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

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

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

2

 In its petition for discretionary review, which it adopted as its opening brief, Bussen 

requested that the Commission hear oral argument on its appeal. Commission Procedural Rule 77 

specifies that any oral argument request is to be made by separate motion. 29 C.F.R. § 

2700.77. The Commission nevertheless considered Bussen’s request. It decided, however, that 

oral argument would not be ordered. 

 

39 FMSHRC Page 970
I. 

Factual and Procedural Background 

The alleged violation took place on December 2, 2014, at Bussen’s limestone mine in 

Missouri. Miners would routinely drill bore holes into what was known as the “State Ledge” 

highwall there, pump water out of the holes as necessary, and then use explosives in the holes to 

blast through the limestone and rock. 

Bussen’s practice was to drill blasting holes no closer than eight to nine feet from the 

highwall’s edge. MSHA has developed a power point program for section 56.15005 defining a 

Fall Hazard Zone requiring a tie off as working within six feet of the crest. The operator’s stated 

policy was that miners were to tie off when within seven feet.3 There is no dispute regarding the 

danger of the 70-foot dropoff from the edge of the highwall in question. 

On December 2, a blasting crew of four individuals was atop the highwall. Prior to 

loading explosive shots into previously drilled holes, the crew expected to have to pump water 

out of least some of the holes. Accordingly, one of the members of the crew had driven a truck 

carrying a pump, mounted on a wheeled cart, to the site. David Becker, the lead blaster on the 

crew, unloaded the pump cart. Before much longer, however, another truck, carrying bags of 

blasting powder, arrived. Consequently, Becker moved the pump cart out of the way, 

repositioning it so that the other crew members could quickly unload the bags of powder. 

Shortly thereafter, MSHA Inspector Gary Swan reached the top of the highwall. Swan 

observed that the pump cart was approximately four and one-half feet from the edge of the 

highwall, with the cart’s curved handles pointed towards the edge. Swan approached Becker, 

who was checking for the presence of water in the holes, and told him that he wanted to discuss 

the placement of the pump. Upon hearing this, Becker reached for the pump, pulling it closer to 

the line of drill holes and spinning it so that the handles no longer faced the highwall. Tr. 19-22, 

79; Gov’t Ex. 1, at 3 (photo of pump after it was so moved, with annotation indicating its prior 

placement). 

 When Swan asked about fall protection, Becker told him that he had not worn it when 

moving the pump. Becker did say that fall protection was available in the truck that had brought 

the pump. Tr. 23. Swan determined that the location of the pump “could put a person using the 

cart approximately 2 to 3 feet from the edge of the highwall with their [sic] back to the edge. 

This practice exposes miners to a fall hazard.” Gov’t Ex. 1, at 1. Because fall protection had not 

been used, Swan issued Citation No. 8860004 for an alleged violation of section 56.15005. Id. 

The citation stated the condition was S&S and the result of high negligence on the part of the 

operator. Id. The Secretary proposed a civil penalty in the amount of $6,300. 

 

 3

 To tie off atop a highwall, Bussen miners would use a line attached to a “T” bar or spike 

dropped into a drill hole. 

39 FMSHRC Page 971
 In her decision, the Judge refused to credit Becker’s hearing testimony on a number of 

points. She instead agreed with the Secretary that the initial repositioning of the cart, with its 

handles pointing towards the highwall edge, indicated that at some point Becker likely was 

between the cart handles and the edge of the highwall, less than four and one-half feet away from 

it, without having been tied off. 4 The Judge further found that Becker or other members of the 

crew “could” have used the pump where it was located near the edge of the highwall, and may 

have chosen to do so without wearing fall protection. Accordingly, she found that a violation of 

section 56.15005 had been established, given the danger of falling posed to miners by being so 

close to the edge of the highwall. 37 FMSHRC at 2788-89. 

 The Judge also affirmed the S&S allegation. She found that the violation of section 

56.15005 contributed to a hazard, in that it presented the danger of a miner tripping and falling 

from the unmarked edge of the highwall while either using the pump or moving it to or from 

another location, all without the benefit of fall protection. The Judge concluded that there was a 

discrete hazard created by the violation and that the hazard was reasonably likely to result in an 

injury. She also concluded that the injury suffered in a 70-foot drop from the highwall would 

almost certainly be fatal. Id. at 2790-91. 

The Judge additionally upheld the high negligence allegation, finding that the operator 

had been put on notice by MSHA of what is expected of it with regard to section 56.15005 and 

concluding that a violation of the standard was thus indicative of a significant lack of care. She 

further found that Becker had stated to Inspector Swan that he was in charge of the operation that 

morning and through his actions indicated that he was aware that the pump was too close to the 

highwall edge. The Judge also found it significant that despite the operator’s policy on fall 

protection in the danger zone being even more stringent than MSHA’s policy, and that a few 

months prior to the citation it had conducted a safety meeting with miners at which fall 

protection had been discussed, the pump had nevertheless been placed by Becker so obviously 

close to the edge. Id. at 2791-92. 

 On review, Bussen contends that the Judge’s conclusions on the fact of violation, its S&S 

nature, and the operator’s high negligence are not supported by substantial evidence.

 4

 Specifically, the Judge refused to credit Becker’s testimony (1) that at no point was he 

within seven feet of the edge on the morning of the citation; (2) that he was the only one who 

would have used the pump that day; (3) that he would not have used it in the position four and 

one-half feet from the edge; and (4) that he would not have crossed the operator’s seven-foot 

boundary beyond which fall protection was required, in order to retrieve the pump even if 

Inspector Swain had not been present. 37 FMSHRC at 2788-89. 

39 FMSHRC Page 972
II. 

Separate Opinions

Commissioners Jordan and Cohen, writing in favor of affirming the Judge’s decision as 

supported by substantial evidence with respect to each of the three issues: 

A. Violation

 We conclude that substantial evidence5 supports a finding of violation in this instance. 

We would affirm the Judge’s conclusion that David Becker’s positioning of the pump cart during 

the unloading of the powder truck placed him less than four and one-half feet from the 

highwall’s edge without fall protection. 

 The Judge’s conclusion that the standard was violated is based primarily upon her finding 

that “it seems most likely that Becker pushed the pump by its handles rather than carrying it or 

pushing or pulling it from the side opposite the handles,” and thus the handles pointing towards 

the highwall edge indicate that he was between the pump cart and the highwall edge. 37 

FMSHRC at 2789. The Commission has held that a violation may be proven through inferences 

drawn from indirect evidence so long as the inference is reasonable. See, e.g., Jim Walter Res., 

Inc., 28 FMSHRC 983, 989 (Dec. 2006) (stating that inferences drawn from indirect evidence are 

reasonable when there is “a logical and rationale connection between the evidentiary facts and 

the ultimate fact inferred”) (citation omitted). Here the Judge’s inference is a commonsense view 

of how the cart in question had been placed in the position where Inspector Swan observed it, 

and is thus is a reasonable inference. Consequently, it was well within the Judge’s purview as the 

trier of fact to conclude that, at some point, Becker had to have been within three to four feet of 

the edge of the highwall with his back to it.6 See 37 FMSHRC at 2791; Donovan ex rel. Chacon 

v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (Commission may not substitute its 

conclusion regarding the facts from the record for that reasonably reached by the Judge). 

 5

 When reviewing a Judge’s factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

6

 Our colleagues argue that the Judge’s reference to the six-foot “fall hazard zone” 

provided in an MSHA PowerPoint presentation was error because the Judge considered this 

informal guidance as part of the mandatory legal standard. Slip op at 12. We disagree. Although 

the Judge referred to the informal guidance, her essential finding was that a miner’s approach to 

within three or four feet of a 70-foot cliff created a “danger of falling,” in violation of the 

standard. See 37 FMSHRC at 2788-91. 

39 FMSHRC Page 973
 The Judge’s decision is also supported by her comparative credibility findings. At the 

hearing, there was a significant difference in the testimony of Becker and Inspector Swan as to 

Becker’s actions. Becker explained that, in order to initially move the pump cart away from the 

back of the powder truck, he grasped the pump cart’s handles to spin the cart so that it was 

pointing in the opposite direction. He maintained that this action resulted in the handles pointing 

toward the highwall edge while he remained more than seven feet away from the edge. Tr. 74-

76. 

 Becker further testified how he had retrieved the pump cart, with its handles pointing 

towards the highwall edge, without having to walk behind the handles, and thus be near the 

highwall edge with his back to it. He explained that he was able to grasp the pump and spin it 

back without moving closer to the edge. Tr. 76. Further, he stated that he did so in order to 

expressly demonstrate to the recently arrived Swan how the pump cart could be moved by a 

miner while standing more than seven feet away from the edge. Tr. 79-81. 

 Swan, however, told a different story. He testified that as soon as he started questioning 

Becker on why the pump was so close to the highwall edge, Becker quickly grabbed it and 

moved it to be near the drill holes, and thus more than seven feet away from the edge. Tr. 20-21. 

In Swan’s view, if he had not been there, a miner would have retrieved the pump cart by placing 

himself between the handles and the highwall edge and thus be within the area in which fall 

protection was required to be used. Tr. 32-33. 

 Consequently, Swan also did not believe Becker’s explanation of how he had originally 

positioned the pump cart. Instead, Swan was persuaded by the proximity of the cart and its 

handles pointing towards the highwall edge to conclude that a miner must have been less than six 

feet from the highwall edge to position the cart where he saw it, and thus working where there is 

a danger of falling in violation of section 56.15005, since fall protection had admittedly not been 

worn. Tr. 20, 22-24, 26, 27. 

 The operator points to Becker’s testimony in urging that the Commission find that 

substantial evidence does not support the Judge’s decision on the violation. However, the Judge 

refused to credit Becker’s account with regard to how the pump cart came to be positioned four 

and one-half feet from the highwall’s edge, and how it would have been retrieved had Swan’s 

arrival not prompted Becker’s quick method of retrieving it. She instead credited Inspector Swan 

with respect to a miner having to be close to the highwall edge to move the cart. 37 

FMSHRC at 2788-89. 

 While Bussen argues that the Judge erred in these credibility findings, we see no 

compelling reason to disturb the Judge’s credibility determinations. The Commission has 

recognized that a Judge’s credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Here, the Judge was required to 

choose between the competing explanations of Becker and Swan, after having had the 

39 FMSHRC Page 974
opportunity to hear the testimony of both and observe their demeanor as witnesses.7 See, e.g., 

Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106-07 (D.C. Cir. 1998). 

 The Judge was also dissuaded from crediting Becker’s account by what he did upon 

Swan’s arrival. Rather than concluding that Becker had by his actions established that he could 

reposition the cart and remain more than seven feet away from the edge, the Judge inferred that 

those actions indicated that “Becker was aware that the pump was too close to the edge and 

quickly moved it before the inspector could do anything further.” 37 FMSHRC at 2791. This is a 

reasonable inference for the Judge to have drawn under the circumstances. 

 In summary, we conclude that substantial evidence supports the Judge’s determination 

that Bussen violated section 56.15005.8

B. S&S 

A violation is S&S if, based on the particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 

1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard – that is, a measure of 

danger to safety – contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

 7

 The Judge also noted Swan’s extensive mining experience. Swan not only had been an 

inspector for seven years but, prior to that, had worked 30 years in the mining industry, primarily 

with surface mines, including in supervisory positions. 37 FMSHRC at 2787. 

8

 Although the citation alleges that the pump was being used from its positon near the 

highwall edge (Gov’t Ex. 1, at 1), the Secretary failed to establish that was the case. Indeed, the 

evidence is largely to the contrary. In particular, the record seems clear that the pump had just 

been delivered to the highwall and had not even been fully assembled yet. Tr. 25, 42-43. 

Consequently, we view the Judge’s findings on the potential use of the pump to be no more than 

speculation. We note that the Secretary in his brief made no attempt to defend those findings, 

going as far as to characterize the issue as “irrelevant” on review. S. Br. at 10. Consequently, our 

conclusion that the citation should be affirmed is based solely on the placement of the pump cart 

in the position where Inspector Swan found it. Thus, our colleagues’ emphasis on what miners 

other than Becker might or might not have done, slip. op at 12-14, is not essential to our analysis 

of the violation given the Judge’s finding that Becker’s actions violated the standard. 

39 FMSHRC Page 975
and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 

 Given our conclusion that the Judge’s finding of violation is supported by substantial 

evidence with respect to Becker’s repositioning of the pump, and how he or any other miner 

would have retrieved it in the absence of inspector Swan, we limit our analysis under Mathies to 

those facts. Because that is sufficient to constitute a violation of section 56.15005, the first 

Mathies step is satisfied.

 Since the issuance of the Judge’s decision and the submissions of the parties’ briefs, the 

Commission has further explained how the second and third steps of Mathies should be applied. 

Newtown Energy, Inc., 38 FMSHRC 2033, 2037-40 (Aug. 2016); ICG Illinois, LLC, 38 

FMSHRC 2473, 2475-76 (Oct. 2016). In our view, the Judge’s analysis of the violation under 

Mathies steps two and three is consistent with our decisions in those recent cases. 

 Turning to the second step of the Mathies test, the inquiry here was whether the lack of 

fall protection was reasonably likely to lead to the danger of falling (the hazard expressed in 

section 56.15005). 9 Clearly the 70-foot dropoff from the highwall here is a danger to which the 

tie-off requirement of section 56.15005 is directed. 

 MSHA has taken the position that, in highwall work areas, a danger arises when a miner 

takes a position six feet or less from the edge of the dropoff or unstable ground or footing. Gov’t 

Ex. 5, at 7 (copy of MSHA’s Safe Practices Near a Highwall Crest Powerpoint Presentation). 

MSHA has identified a number of reasons for how a miner could end up going over an edge 

when working within six feet of it, including slipping or tripping due to weather conditions, 

boreholes, or cracks in or clutter about the ground. In addition, in order to better help miners 

keep their bearings when close to the edge, MSHA suggests that there be visual warnings of the 

edge, or physical barriers to it. Id. at 6-14. Given that the violation here involved a miner getting 

to within steps of the edge of the highwall with his back to it, MSHA’s concerns are 

appropriately considered in this instance. 

 Our S&S inquiry considers the violative conditions as they existed prior to and at the 

time of the violation as well as how they would have existed had normal operations continued.

Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (citations omitted). 

 9

 In ICG Illinois, we stated separately that we “would hold that a violation sufficiently 

‘contributes’ if it is at least somewhat likely to result in, or could result in, a safety hazard.” 38 

FMSHRC at 2476 n.5. We do not find the qualitative difference between “reasonably likely” and 

“somewhat likely” to matter in this case, where a miner lacking fall protection was so close to a 

deadly dropoff. 

39 FMSHRC Page 976
In normal mining operations, there is always the potential for slipping and falling, and it was 

exacerbated in this instance by, as the Judge found, the presence of rock dust on the ground. 37 

FMSHRC at 2791; Gov’t Ex. 1, at 3-4 (photos of highwall edge area). In addition, she was 

correct to cite the lack of ground markings or other warnings of or barriers to the edge, which 

had been somewhat obscured by the rock dust. 10 37 FMSHRC at 2788, 2791; Gov’t Ex. 1, at 3-

4. Finally, the inspector testified as to the presence of the shavings piles that had resulted from 

the prior drilling of the bore holes, and over which a miner could stumble while working close to 

the edge. Tr. 25. 

 Hence, there existed a reasonable likelihood that Becker, or any other miner repositioning 

and then retrieving the pump cart within two to three feet of the edge of the highwall with his 

back to it, could slip, trip, stumble or inadvertently step over the unmarked edge — precisely 

what fall protection is designed to protect against. Regarding the third step of the Mathies test, it 

is reasonably likely that the hazard (a 70-foot fall) would result in injury. In addition, there is no 

dispute regarding the severity of the injuries that would result from a 70-foot plunge, so the 

fourth step was satisfied as well. Consequently, we would affirm in result the Judge’s S&S 

determination.

C. Negligence

Bussen contends that the Judge erred in finding high negligence when the operator’s fall 

protection policy was even more stringent than that of MSHA, and it had trained its miners to 

follow that policy. Citing Excel Mining LLC, 497 F.App’x 78, 79 (D.C. Cir. 2013), Bussen 

attempts to rely upon 30 C.F.R. Part 100, MSHA’s regulations governing its proposal of civil 

penalties. Bussen maintains that, under 30 C.F.R. § 100.3(d), the existence of a single mitigating 

circumstance prevents a finding of high negligence in connection with a violation, even where 

the operator knew of the violation. 

However, the D.C. Circuit has since held that the Commission, in assessing final civil 

penalties under the Act,11 is not bound by Part 100, including the regulations defining 

“negligence” and setting forth MSHA’s various degrees and descriptions of negligence. Mach 

 10 The operator argues that the lack of warning markers or barriers should not be taken 

into account, because the inspector did not cite it for a violation of 30 C.F.R. § 56.20011. That 

standard provides in pertinent part that “[a]reas where health or safety hazards exist that are not 

immediately obvious to employees shall be barricaded, or warning signs shall be posted at all 

approaches.” A highwall edge, however, would seem to be immediately obvious from the 

vantage point of an individual “approaching” it. The measures noted to be lacking in this 

instance would instead serve as an additional reminder to miners busy at work in the area of the 

proximity of the dangerous edge just a few feet away. 

11 Negligence is one of the six statutory penalty criteria the Commission is to consider in 

assessing civil penalties pursuant to section 110(i) of the Act, 30 U.S.C. § 820(i). 

39 FMSHRC Page 977
Mining, 809 F.3d at 1263-64.

12 Instead of applying section 100.3(d), the Commission uses “a 

traditional negligence analysis.” Id. at 1264; The American Coal Co., 39 FMSHRC 8, 14 (Jan. 

2017). In determining the degree of negligence, the Judge should consider “what actions would 

have been taken under the same circumstances by a reasonably prudent person familiar with the 

mining industry, the relevant facts, and the protective purpose of the regulation.” JWR Res., Inc., 

36 FMSHRC 1972, 1975 (Aug. 2014). In addition, because Commission Judges are not bound by 

Part 100 when considering an operator’s negligence, they are not limited to a specific evaluation 

of potential mitigating circumstances. Brody Mining, LLC, 37 FMSHRC 1687, 1702-03 (Aug. 

2015). 

Although the Judge, in concluding that high negligence had been established here, 

referred to the Part 100 negligence definitions, her analysis of the record evidence regarding the 

operator’s negligence conforms with a “traditional negligence analysis,” because she 

“consider[ed] the totality of the circumstances holistically.” Brody, 37 FMSHRC at 1702. Based 

on Becker’s quick move to pull the pump away from the edge after Inspector Swan voiced 

concern about the situation, the Judge found that Becker was aware that the pump cart was 

positioned improperly in the danger zone. She further found that the edge of the highwall was an 

obvious danger to any persons in the area, and Becker therefore should have been alerted to the 

nearby danger. 37 FMSHRC at 2791-92. The Commission has held that high negligence can be 

found even when the violation is the result of a momentary error, when the error is by a 

supervisor or other agent of the operator and the violation is obvious. See American Coal, 39 

FMSHRC at 14, 20, 22-23; see also Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998) 

(willful violation constitutes high negligence). 

Bussen contends that, because Becker was a miner paid an hourly rate, any negligence on 

his part should not be attributed to Bussen. The Secretary responds that Becker’s status in the 

crew meant that he was acting as Bussen’s agent in this instance, and thus his negligence was 

attributable to it. See generally Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) 

(citing cases). 

The Judge concluded that Becker was “in charge” of the crew working atop the highwall 

that morning, and she considered that fact in her high negligence determination. 37 FMSHRC at 

2787, 2791-92. While there is not a great deal of record evidence on this issue, it is undisputed 

that Swan asked Becker who was “in charge” and elicited a positive response from Becker. 

Becker informed Swan that he was the miner who was oldest and with the most experience in the 

crew (Tr. 19, 26), and he testified that his official title was “lead blaster.” Tr. 69. In contrast, the 

operator made no attempt to establish that another individual was supervising the crew that 

morning, and in its post-hearing brief did not even address the high negligence allegation, and 

 12 Commissioner Cohen has explained why it is inappropriate for the Commission to 

apply the definitions contained in Table X of 30 C.F.R. § 100.3(d) in defining degrees of 

negligence. In particular, a finding of “high negligence” should not be precluded on the basis of a 

single mitigating circumstance. Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3105-09 (Dec. 

2014) (Comm’r Cohen, concurring). 

39 FMSHRC Page 978
thus Becker’s status in the crew. We agree with the Secretary that, for purposes of the rather 

unique circumstances of this case, Becker qualified as an agent of the operator for purposes of 

attributing his negligence to the operator in this instance. 

In any event, we do not read the Judge’s reliance on Becker’s role relative to the 

remainder of the crew to be the entire basis for establishing that he was an agent of the operator 

in this instance. She also cited Becker’s status as the lead blaster as illustrative in finding that, 

despite the operator’s safety and discipline policies, it apparently had not succeeded in 

impressing upon its miners the importance of using fall protection when near a highwall’s edge. 

See 37 FMSHRC at 2792. 

Bussen contends that the Judge should have given its safety and discipline policies 

dispositive weight and reduced the level of negligence. However, it was not error for the Judge to 

decline to do so. Not only did Becker not adhere to the fall protection policy in this instance, but 

the evidence is that he was not disciplined by Bussen for failing to do so. Tr. 50, 83. 

The operator also objects to the weight the Judge gave to the lack of warning markers or 

barriers at the highwall’s edge in affirming the negligence as high in this instance. It contends 

that, in so doing, the Judge adopted requirements not imposed by section 56.15005. We disagree 

with this reading of the Judge’s analysis. Her consideration of this evidence was more of a 

finding that such markers or barriers would have mitigated the operator’s negligence in this 

instance, as those are measures MSHA recommends but does not require for highwall operations. 

Gov’t Ex. 5, at 8. Their absence explains in part why the Judge was not persuaded to reduce the 

level of Bussen’s negligence. 

Accordingly, we conclude that the Judge’s high negligence finding is supported by 

substantial evidence in this instance, and thus would affirm it. 

D. Conclusion

 For the foregoing reasons, we would affirm the Judge’s decision that Bussen violated 

section 56.15005, that the violation was S&S, and that it resulted from high negligence. 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 979
Acting Chairman Althen and Commissioner Young, writing in favor of vacating the citation: 

The Judge inferred a miner, Becker, placed himself in danger of falling. To do so, she 

disregarded Becker’s sworn testimony explaining how he placed a moveable pump four and a 

half feet from the crest of the highwall, failed to contend with his physical demonstration to the 

inspector how this had been done, and then inferred — contrary to these facts of record — that 

the miner must have stood with his back to the highwall based merely on the direction of the 

pump’s handles. Our task is to determine if that inference was reasonable in light of the totality 

of the evidence presented at the hearing and the analysis presented in the Judge’s decision. 

 As set forth below, the Judge’s inference that Becker placed himself in danger of falling, 

standing alone, is not supported by substantial evidence and therefore, is not reasonable. The 

miner’s sworn testimony, his demonstration of his action, the evidence at the scene, and plain 

common sense contradict the Judge’s inference. Moreover, the Judge further erred by basing the 

inference on the operator’s failure, in the Judge’s view, to comply with a host of non-mandatory 

safety suggestions made in informal MSHA presentations. 

Discussion 

A. The Judge failed to analyze the violation against the requirements of the standard. 

We begin with the regulation the Secretary alleges Bussen violated. 30 C.F.R. 

§ 56.15005 states: “Safety belts and lines shall be worn when persons work where there is danger 

of falling.” In order to prove a violation of this standard, the Secretary must prove three 

elements: a person was (1) working (2) where there was a danger of falling (3) without wearing 

safety equipment. While the Judge below focused most of her opinion on possible actions and 

hazards that she speculated might arise in the future and on conditions that she believed to have 

been inadequate in light of informal guidance promulgated by the Secretary, the law imposes on 

the Secretary the burden of establishing each element of this violation, including the fact that a 

miner actually worked where there was a danger of falling. See Cathedral Bluffs Shale Oil Co., 6 

FMSHRC 1871, 1874-75 (Aug. 1984);1 cf. W.G. Yates & Sons Constr. Co., Inc. v. OSHRC, 459 

F.3d 604, 607 (5th Cir. 2006) (stating that all circuits considering the question agree that the 

 1

 The Court of Appeals for the D.C. Circuit reversed and remanded the Commission’s 

decision vacating the citation in Cathedral Bluffs. Brock v. Cathedral Bluffs Shale Oil Co., 796 

F.2d 533 (D. C. Cir. 1986). However, the Court’s decision was grounded on a holding that the 

enforcement guidelines at issue did not establish binding norms for determining when 

independent contractors could be cited. Id. at 537-39. Indeed, the Court found it “noteworthy that 

the Secretary took pain to exclude the enforcement guidelines from the final rule, and directed 

that they not be published with the rule in the Code of Federal Regulations.” Id. at 539. In 

contrast, the elements at issue here appear in the text of a duly-promulgated, mandatory safety 

standard. The Commission’s holding that the Secretary is required to prove all of the elements 

supporting a citation, and the logic supporting our holding that the Secretary failed to do so in 

Cathedral Bluffs, were undisturbed by the Court of Appeals. 

39 FMSHRC Page 980
Secretary has the burden of establishing each element of a violation under the Occupational 

Safety and Health Act). 

When we examine the decision in its entirety, we see the Judge failed to measure the 

operator’s conduct against the standard or to hold the Secretary accountable to his burden of 

proving a violation of its provisions. Instead, the Judge repeatedly relies on speculation and 

evaluates the operator’s mine site actions against suggestions made in an MSHA informal 

PowerPoint to infer dangers of falling. 37 FMSHRC at 2788; see also Gov’t Ex. 5, at 7. 

 The Judge accepted into evidence an MSHA PowerPoint presentation, “Fall Prevention 

on Highwalls.” The presentation endorses the concept of a “Fall Hazard Zone” — that is, a space 

six feet or less from a stable crest or unstable ground. See Gov’t Ex. 5, at 7. The operator in this 

case similarly recognizes the concept and had voluntarily established a seven-foot hazard zone 

from the edge of the highwall. 37 FMSHRC at 2788. 

 The concept of a six-foot “fall hazard zone” is certainly a beneficial suggestion. 

However, applying the six-foot “fall hazard zone” as if it were a mandatory standard upon which 

one may ground a strict liability violation is inconsistent with the actual regulation language 

promulgated by the Secretary and thus is impermissible. A violation of section 56.15005 is 

shown when the Secretary establishes each of the elements of the violation, i.e., whether the 

Secretary proved that in the specific circumstances of the citation it was more likely than not that 

a miner was working where there was a danger of falling and was not wearing a lifeline. The 

Secretary did not introduce any evidence for the proposition that every incursion within six feet 

of a crest creates a danger of falling.2 

 Nonetheless, the Judge repeatedly refers to the PowerPoint suggestions and opines that 

the failure to follow the suggestions put miners in danger of falling. The Judge draws a number 

of unreasonable and unsupported inferences. 

 The Judge below simplified the Secretary’s burden of proof by dispensing with it: “I 

agree with the Secretary that the position of the pump together with the absence of any warnings 

near the edge created a danger of falling.” 37 FMSHRC at 2788. Even were this statement true, it 

is wholly irrelevant to whether any miner actually was working where there was a danger of 

falling, an essential element of an alleged violation. The absence of warnings is not a violation 

and is not relevant if there were no miners working in an area where they would be in danger. 

There is no testimony from any witness that any miner worked near the edge of the highwall. 

 Essentially, the Judge finds that, because current mine practices did not follow all MSHA 

informal guidance, it was likely a miner might in the future be placed in a danger of falling area. 

In doing so, the Judge applies the principle of “continued normal mining operations” that makes 

 2

 As noted, the Secretary expressly stated the PowerPoint was not an official 

interpretation of the standard. Consequently, deference is not required or appropriate under either 

Auer v. Robbins, 519 U.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944). 

39 FMSHRC Page 981
an existing violation S&S if based upon events likely to occur if the violation continued during 

such operations. However, there is no basis to cite inchoate circumstances not constituting a 

violation. If no miner is in danger of falling, MSHA cannot cite a violation of section 56.15005 

based upon a belief that in the future a miner might come into a danger of falling without a 

lifeline. There simply is no basis in the Mine Act to cite an operator and assess a penalty for 

violations that have not yet occurred but that the inspector, Secretary, or Judge speculates may 

happen in the future. The Judge errs fundamentally in finding a violation based upon speculation 

that the operator “created a danger of falling.”3

 

 The Judge also found that the routine and necessary placement of blasting boreholes 

created a danger of falling, stating that “[t]he bore holes had been drilled between eight and nine 

feet from the highwall edge, which itself would make it easy for a miner to come within six feet 

of the edge, given there was no demarcation line for reference.” 37 FMSHRC at 2788. There are 

two problems with this finding. First, the boreholes themselves at eight feet provided a line of 

demarcation. Miners would know that staying beyond them would keep them more than seven 

feet from the edge of the highwall. 

The second problem is that the Judge relied on best-practices guidance to impose 

additional responsibilities on the operator, without citing any special hazards here. In fact, the 

photographs of the highwall show a fairly clean and level area near the edge. The Judge 

nonetheless faults Bussen for not providing signage or markings not required, even in the 

absence of a showing that such signage was necessary. 

 

 The Judge did discuss the miners working in the area. However, she never showed that 

any of them had at any point worked where they were in danger of falling. Her foundation is 

pure speculation. She noted that while Becker stated that he was the only one who worked with 

the pump, three other miners in the area “had every opportunity to use or move the pump.” Id. at 

2788-89. The Judge “agree[d] with the inspector’s reasonable inferences that these other miners 

could have used or moved the pump from its location near the edge.” Id. at 2789 (emphasis 

added). This is complete speculation. 

 3

 The Judge also relied upon page eight of the PowerPoint, which suggests using visual 

warnings and ground markings (signs, tape, cones, boulders, paint, or chalk) and physical 

barriers (berms, boulders, fencing, etc.) “to warn miners when they are approaching an edge.” Id.

at 2788 (citing Gov’t Ex. 5, at 8). The Judge applied the Fall Hazard Zone and suggestions about 

visual warnings as if they were mandatory standards and faulted Bussen for failing to implement 

the visual warning suggestions, even though the PowerPoint expressly states that it does not 

identify MSHA standards. It states, “[T]his program does not establish official MSHA policy on 

all possible methods of compliance at every mining operation. Instead, this program provides 

suggestions and recommendations to the mining industry for educational purposes.” Sec’y’s Ex. 

5, at 34 (emphasis added). Obviously, the Secretary — who cannot be held to the burden of 

establishing elements set forth in non-binding guidance, see Brock v. Cathedral Bluffs, 796 F.2d 

at 537-39 — likewise cannot establish by mere guidance a binding norm for determining 

violations. It was clear error for the Judge to implicitly hold otherwise here. 

39 FMSHRC Page 982
 Further, the Judge again misread the standard to impose liability for the mere positioning 

of a piece of equipment. Her musings on the potential for such work might be relevant to an S&S 

analysis if miners had been shown to have worked in the area. But the evidence is devoid of any 

such evidence. Becker testified that he was the only miner to use the pump and no witness 

testified otherwise. The Judge simply speculated that other miners might go into the nonmandatory Fall Hazard Zone. Her inference that Becker had done so is groundless and her 

speculation that some other miner might do so in an imagined, hypothetical future is irrelevant to 

a violation of the standard. 

 The Judge further speculated that no one would have put on fall protection “to perform 

the simple task of moving the pump.”4 Id. at 2789. Not only is the Judge’s opinion speculative, 

but it also ignores the evidence, supported by the inspector’s testimony, that the pump could 

have been moved without coming within six feet of the crest of the highwall. Becker testified 

that he had done so. In fact, he demonstrated the action by easily and quickly moving the pump, 

while standing next to the inspector, Tr. 40-41, without exposing himself to a danger of falling. 

The evidence thus directly refutes the Judge’s supposition that a miner had to encounter a danger 

of falling to return the pump. 

 

 Accordingly, the Judge erred by effectively imposing requirements not specified in the 

regulation. In turn, using this view, she simply inferred, contrary to Becker’s testimony, that 

Becker put himself in danger of falling. 

B. The Judge’s inference that Becker placed himself in danger of falling without 

wearing a lifeline is not supported by substantial evidence and is unreasonable. 

Of course, credibility determinations are entitled to respect, and we generally defer to 

credibility determinations of ALJs. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 

(Sept. 1992). However, credibility determinations are not beyond review. The Eighth Circuit has 

long held that a contention grounded on speculation and unsupported by substantial evidence 

must fail as a matter of law. Armour & Co. v. Harcrow, 217 F. 224, 228 (8th Cir. 1914); NLRB v. 

Monroe Auto Equip. Co., 368 F.2d 975, 980 (8th Cir. 1966); J.E.K. Indus., Inc. v. Shoemaker, 

763 F.2d 348, 353 (8th Cir. 1985). 

Thus, while our colleagues correctly note that we do not lightly overturn an ALJ’s 

credibility determinations, slip op. at 5, neither may such determinations be made lightly. An 

ALJ’s credibility determination must be supported by substantial evidence. See Buckler v. 

Bowen, 860 F.2d 308, 311 (8th Cir. 1988) (citing Hardin v. Heckler, 795 F.2d 674, 676 (8th Cir. 

1986)) (“[An] ALJ may disbelieve a claimant’s allegations of pain, but credibility determinations 

must be supported by substantial evidence.”). 

 4

 The Judge found that safety lines were on site at but chose to infer that the miners 

would have chosen to put themselves in danger of falling without putting on the lifelines. 37 

FMSHRC at 2789. As with other findings, no evidence supports this speculation. 

39 FMSHRC Page 983
The Secretary’s contention cannot rest on a mere scintilla — here, the position of the cart 

without any evidence other than Becker’s testimony as to how it got in that position — as a basis 

for speculation. The Secretary’s argument in this case would fail even on a motion for a directed 

verdict. At that stage, “[t]here must be a conflict in the substantial evidence and not merely 

speculation or conjecture. Plaintiff is not entitled to unreasonable inferences, ‘or inferences at 

war with undisputed facts.’” J.E.K. Indus., 763 F.2d at 353 (citations omitted) (quoting 

Schneider v. Chrysler Motors, 401 F.2d 549, 555 (8th Cir. 1968)). 

Thus, “if a credibility determination is unreasonable, contradicts other findings of fact, or 

is ‘based on an inadequate reason, or no reason at all,’ [the court] will not uphold it.” NLRB v. 

McCullough Envtl. Servs., Inc., 5 F.3d 923, 928 (5th Cir. 1993) (quoting NLRB v. Moore Bus. 

Forms, Inc., 574 F.2d 835, 843 (5th Cir. 1978)). The record must support a credibility 

determination. This means that “[w]hen the decision of an ALJ rests on a negative credibility 

evaluation, the ALJ must make findings on the record and must support those findings by 

pointing to substantial evidence on the record.” Ceguerra v. Sec’y of Health & Human Servs., 

933 F.2d 735, 738 (9th Cir. 1991). This requirement follows from the “bedrock principle of 

administrative law” that “[a] reviewing court can evaluate an agency’s decision only on the 

grounds articulated by the agency.” Id. 

Becker testified under oath that, to move a pump out of the way of a truck delivering 

explosives, he swung the pump from a location approximately seven feet from the edge of the 

highwall to a location approximately within four and a half feet of the edge of the highwall. Tr. 

72. The pump handles faced toward the highwall. No witness contradicted Becker, and miners 

verified that a truck delivering explosives had arrived on the bench. Tr. 87, 94. 

The Judge never accounts for and in fact disregards this evidentiary record. She appears 

to have based her wholly subjective view on a belief that Becker was not telling the truth. She 

never explains her rationale, beyond a specious assertion that it “seems most likely” that the cart 

in question was placed there in a manner at variance with Becker’s sworn testimony and that it is 

“difficult to imagine” how it could have been placed as he testified. 37 FMSHRC at 2789. 

There is no need for imagination. Becker provided a demonstration proving that the cart 

could be moved without coming anywhere near the crest of the highwall or in danger of falling. 

The most the Judge could have inferred was that Becker might have been slightly closer than six 

feet from the edge of the highwall briefly when he moved the cart out of the way. But, here, we 

have sworn, uncontradicted testimony that not even this happened. 

Furthermore, Becker’s sworn testimony is corroborated by other evidence in the record. 

When Swan, who had not seen Becker relocate the pump, approached, Becker took hold of the 

pump and swung it back to a location more than six feet from the edge of the highwall. Tr. 20, 

41-42. In fact, the inspector’s notes corroborate that Becker was able to retrieve the pump by 

swinging it around without approaching the highwall, Tr. 20, and that Becker told Swan that he 

had placed the pump in the same manner. Gov’t Ex. 1, at 2 (“The miner that put the cart in place 

stated that he has fall gear in the truck but didn’t feel he needed it. Stated that he swung the cart 

in place.”); see also Tr. 35-36 (inspector confirming that his notes were accurate). 

39 FMSHRC Page 984
 Becker’s easy retrieval of the pump from a safe location demonstrates that he could move 

the pump just as he testified. There is no evidence contradicting that ability. There is no evidence 

to support a notion that by moving the pump toward the crest in the same manner that he 

retrieved it, the handles could not end up facing the highwall. 

 Further, the Judge does not deal with the common sense question of why a miner using 

the handles to move the pump out of the way would back the pump toward the highwall rather 

than push it toward the highwall. The pictures of the pump show the wheels are located at the 

back of the pump so that a person could move it forward or backward. Gov’t Ex. 1, at 3-4. The 

Judge does not explain her finding that the miner backed toward the highwall and approached 

within two or three feet of the edge with his back to the highwall when if a miner were using the 

handles to roll the pump, it would make more sense to roll it toward the highwall. Indeed, with 

respect to anyone working around the pump, thereby coming closer to the highwall, the Inspector 

testified, “I’m not saying anybody would do that.” Tr. 32. Similarly, under the Judge’s theory, in 

retrieving the pump, the miner would have had to walk around the pump in order to push it away 

from the highwall. None of this makes more sense — that is, it can be more likely inferred that 

the miner moved the pump to its position and retrieved the pump from its position in exactly the 

manner he physically demonstrated and swore to in his testimony. 

Not only did the Judge not consider this obvious impediment to her assumption that 

Becker pulled the pump toward the highwall, but she also did not consider her own finding that 

there were no recent footprints near the edge of the highwall. She noted that, “Swan noticed that 

there were older footprints near the edge of the highwall, but they were covered in rock dust and 

he could not tell how recently they had been made.” 37 FMSHRC at 2787 (emphasis added).5

This raises a question: if Becker did walk too close to the edge in order to place the cart there 

with the handles facing toward the edge of the highwall shortly before the inspector arrived, how 

did he get there without creating fresh footprints in the dust that the Judge found to be on the 

bench? The weather was dry and the bench was flat. Tr. 53; Gov’t Ex. 1, at 3-4. Although there 

was still evidence in the dust of someone walking at that location several days before (likely 

before firing the prior shot, Tr. 77-78), the Judge cites no evidence in the record of any foot 

traffic near the highwall after those prior footprints were made. 

 In sum, no witness, including the inspector, observed any miner in, or close to, a position 

where such miner was in danger of falling from the highwall. Indeed, Becker and Swan agree on 

one fact: neither of them saw any miner working where he would have been in danger of falling, 

as the standard requires. 

This consistency in the record should have proven fatal to the Secretary’s case. Yet 

despite the absence of any evidence of an incursion near the highwall and Becker’s demonstrated 

retrieval of the pump from a safe distance, the Judge wholly discredited Becker’s testimony. 37 

 5

 Although the Judge discussed testimony throughout her decision, she cited the transcript 

precisely one time. 37 FMSHRC at 2791. It would be eminently helpful if the Judge would 

provide transcript citations when discussing testimony in future cases. 

39 FMSHRC Page 985
FMSHRC at 2788. The Judge did not comment upon Becker’s demeanor, cited no impeachment, 

and relied on no evidence that contradicts his testimony. It is entirely improper, as a matter of 

law, for a Judge to disregard Becker’s sworn and demonstrated testimony, implying that said 

testimony is untruthful, without citing anything more than a single, inconclusive fact and 

drawing an inference contradicted by every other fact in the record.6 

Finally, the Judge’s finding of high negligence encapsulates the defective findings and 

reasoning throughout her decisions. The Judge concludes, “The miners testified that they 

stayed seven feet back from the edge, but I am skeptical given the location of the holes, the 

location of the pump, and the fact that there were no warnings to remind workers to stay

back.” Id. at 2792. The boreholes were eight feet from the crest in a position where they had 

to be for mining. Thus, the Judge cites three factors that are not individually or collectively 

violative or negligent: (1) placement of the boreholes in places necessary for mining as 

evidence of high negligence regarding a fall standard, (2) placement of the pump although 

the placement was not a violation and the pump was easily retrieved without creating any 

danger of falling, and (3) failure to utilize the presence of non-mandatory signs even though 

boreholes were present. 

The Judge’s inference of a violation is thus unreasonable and refuted by the record. It 

rests entirely upon the Judge’s articulated discontent with lawful mining practices and her 

disregard of the Secretary’s burden of proof and the absence of any evidence that might support 

that burden. 

6

 Our colleagues suggest that the Judge made “comparative credibility findings” when 

she discredited Becker’s testimony about what he did when he placed the pump on the highwall 

and instead adopted the inspector’s testimony speculating what happened. Slip op. at 5. 

However, the Judge’s resolution in the disputed testimony is likewise infected by error. As fully 

explained in the preceding discussion, the evidence corroborates Becker’s explanation of the 

event and does not support the inspector’s mere speculations of what he believed likely 

happened. Hence, the Judge’s credibility findings are not supported by the evidence and must be 

overturned. See Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1389-93 (Dec. 1999) (noting an 

exceptional circumstance warranting overturning a Judge’s credibility finding is when such 

finding is contradicted by the record evidence); Consolidation Coal Co., 11 FMSHRC 966 (June 

1989) (stating that a Judge’s credibility findings and resolutions will not be affirmed if there is 

no evidence or dubious evidence to support them). 

39 FMSHRC Page 986
Conclusion

While a judge’s credibility determination is usually entitled to great weight, we cannot 

defer to a judge’s unreasonable and unreasoned decision to disbelieve a witness without 

justification in the evidence. In turn, we cannot accept an inference based upon the unreasoned 

discrediting of a witness, without discussion of contradictory evidence, and without any basis in 

the evidence. 

Because the Judge's inference that a miner worked in an area where he was in danger of 

falling without using fall protection is not supported by substantial evidence, we would reverse 

the Judge and vacate the citation.

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

39 FMSHRC Page 987

COMMISSION ORDERS
39 FMSHRC Page 988
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 5, 2017 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On April 5, 2016, the Commission received from Prosperity 

Coal, LLC (“Prosperity”) a motion seeking to reopen 19 penalty assessments that apparently 

have become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers SE 2016-187, SE 2016-165, SE 2016-166, SE 2016-167, SE 2016-168, SE 

2016-169, SE 2016-170, SE 2016-171, SE 2016-172, SE 2016-173, SE 2016-174, SE 2016-175, 

SE 2016-176, SE 2016-177, SE 2016-178, SE 2016-179, SE 2016-180, SE 2016-181, and SE 

2016-182 involving similar procedural issues. 29 C.F.R. § 2700.12. For the sake of brevity, the 

relevant docket numbers and associated A.C. numbers have been listed in Exhibit 1, attached to 

this order. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

PROSPERITY COAL, LLC 

Docket No. SE 2016-187, et al.1

39 FMSHRC Page 989
good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessments were mailed to Prosperity between April 2, 

2014 and December 30, 2015, but that all of the assessments were returned by the Post Office for 

various reasons (i.e., unclaimed, unable to forward, moved/left no address, etc.). In 18 of the 19 

cases, delinquency notices were mailed to the operator and were also returned undelivered. 

The record shows that the proposed assessments and delinquency notices were not all 

mailed to the same address. MSHA records indicate that mailings had gone to Prosperity’s 

address of record only in Docket Nos. SE 2016-187, SE 2016-165, SE 2016-166, SE 2016-168 

(delinquency letter only), SE 2016-180 and SE 2016-181. All of the other mailings were sent to 

either one of two mailing addresses in Tennessee. The Tennessee addresses used by MSHA were 

not provided by Prosperity, but rather, were unearthed during an internet search by the WilkesBarre Office of Assessments.

Prosperity asserts that it never received the proposed assessments and that, due to “hard 

economic times,” the cases should be reopened so that it will be able to contest the large number 

of penalties at issue. Prosperity further alleges that the Secretary did not attempt to contact 

anyone at the company to inform it about the returned assessments. 

The Secretary opposes the request to reopen and notes that the penalties were ultimately 

referred to the U.S. Department of Treasury for collection in 18 of the 19 cases. The Secretary 

argues that Prosperity cannot avoid its obligation to pay penalties under the Mine Act by failing 

to change its address of record or by not leaving a forwarding address with the post office. 

Furthermore, the Secretary notes that a majority of the cases at issue have been final orders for 

more than a year prior to the motion to reopen and that Prosperity has provided no justification 

for the lengthy delay. 

MSHA must attempt to mail proposed penalties to the operator’s correct address in order 

to constitute valid service. See, e.g., Brahma Group, Inc., 31 FMSHRC 527 (May 2009). If the 

proposed penalty is sent to an incorrect address, the operator has not been notified pursuant to 30 

U.S.C. § 815(a) and the 30-day contest deadline was not triggered. Id. 

In Docket Nos. SE 2016-167, SE 2016-169, SE 2016 170, SE 2016-171, SE 2016-172, 

SE 2016-173, SE 2016-174, SE 2016-175, SE 2016-176, SE 2016-177, SE 2016-178, SE 2016-

179, and SE 2016-182, the Secretary did not mail the proposed penalty or the delinquency letter 

to the operator’s address of record. Pursuant to the Secretary’s own internal procedures, MSHA’s 

Office of Assessments should only try mailing to an alternative address after service was 

attempted to the address supplied by the operator, which in most cases is the address of record. 

See 30 C.F.R. § 100.8; MSHA, PROGRAM POLICY MANUAL, Vol. III, at 109 (June 2012). 

As Prosperity was not notified of the aforementioned proposed assessments, the penalties never 

became final orders of the Commission and the motion to reopen, as it pertains to these 13 cases, 

is moot. 

39 FMSHRC Page 990
 In Docket Nos. SE 2016-187, SE 2016-165, SE 2016-166, SE 2016-168, SE 2016-180 

and SE 2016-181, however, the record demonstrates that the Secretary did attempt service at 

Prosperity’s address of record. During the relevant period, Prosperity filed six Legal ID Reports 

with MSHA. Between January 2014 and July 2015, Prosperity filed four reports listing its 

mailing address as 1340 South Laurel Road, London, Kentucky. In November 2015 and again in 

January of 2016, Prosperity listed its mailing address as 179 Pepperhill Drive, Suite 1, London, 

Kentucky.2

 The Secretary has represented that all mail sent to these addresses was returned 

undeliverable. 

 While the Commission has reopened cases where an operator has mistakenly failed to 

properly update its address of record, see, e.g., Hoover Excavating, Inc., 35 FMSHRC 317 (Feb. 

2013), the extent and effect of Prosperity’s failure to provide MSHA with a mailing address is 

unprecedented. For nearly two years, Prosperity was issued citations during multiple MSHA 

inspections, but the company never received a single proposed assessment.3 The record contains 

no evidence that Prosperity took any proactive steps to inquire as to the status of the proposed 

assessments by contacting MSHA or simply checking the status of the penalties on MSHA’s 

online database. Furthermore, Prosperity has not offered any explanation as to why mail sent to 

its address of record was returned undelivered. See H & B Crushing, LLC, 33 FMSHRC 2176 

(Sept. 2011) (parties seeking reopening are encouraged to provide further pertinent information 

in response to the Secretary providing proof that the proposed assessments were mailed to the 

operator’s address of record). 

 

 Moreover, Prosperity fails to explain when and how it learned of the delinquency as to 

the assessments at issue. In considering whether an operator has unreasonably delayed filing a 

motion to reopen penalty assessments, we find relevant the amount of time that has passed 

between an operator’s receipt of a delinquency notice or other notification from MSHA and the 

operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 

2009). As set forth in Highland Mining Co., 31 FMSHRC 1313, 1317 (Nov. 2009), motions to 

reopen filed more than 30 days after receipt of delinquency information from MSHA should 

include an explanation for the delay in seeking reopening. The lack of such an explanation is 

grounds for the Commission to deny the motion. 

 In addition to the aforementioned rationale, reopening is presumptively barred for two of 

the proposed assessments by the express terms of Rule 60(b). We have consistently 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 

 2

 Operators have a duty to notify MSHA within 30 days of a change in its address of 

record. 30 C.F.R. § 41.12. 

3

 Prosperity timely contested at least one proposed assessment sent by MSHA prior to 

filing its motion to reopen. MSHA’s records indicate that Assessment No. 000404392 was sent 

to Prosperity’s Pepperhill Drive address and that the company’s president, Timothy Webb, 

signed for the package on March 7, 2016. Prosperity has provided no explanation for why it 

received the proposed assessment in that instance but did not receive other mailings sent to its 

address of record. 

39 FMSHRC Page 991
one year after the judgment, order, or proceeding was entered or taken. In the case of Assessment 

Nos. 000357605 and 000355292 (Docket Nos. SE 2016-180 and SE 2016-181), Prosperity did 

not meet this one year time frame. See J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 

2004). 

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

proper service was never effected for the proposed assessments that were not mailed to the 

operator’s address of record and thus Prosperity’s motion to reopen those assessments is moot. 

Accordingly, Docket Nos. SE 2016-167, SE 2016-169, SE 2016 170, SE 2016-171, SE 2016-

172, SE 2016-173, SE 2016-174, SE 2016-175, SE 2016-176, SE 2016-177, SE 2016-178, SE 

2016-179, and SE 2016-182 are 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. 

 However, we find that Prosperity has failed to establish good cause for reopening the 

proposed penalty assessments that the Secretary mailed to its address of record. Therefore, we 

deny its motion to reopen Docket Nos. SE 2016-187, SE 2016-165, SE 2016-166, SE 2016-168, 

SE 2016-180 and SE 2016-181. 

/s/ William I. Althen 

 William I. Althen, Acting Chairman 

 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 992
Exhibit 1 

Operator Docket Number A.C. Number 

Prosperity Coal, LLC SE 2016-187 40-03177-400154 

Prosperity Coal, LLC SE 2016-165 40-03177-395720 

Prosperity Coal, LLC SE 2016-166 40-03177-393267 

Prosperity Coal, LLC SE 2016-167 40-03177-390499 

Prosperity Coal, LLC SE 2016-168 40-03177-385664 

Prosperity Coal, LLC SE 2016-169 40-03177-382736 

Prosperity Coal, LLC SE 2016-170 40-03177-380157 

Prosperity Coal, LLC SE 2016-171 40-03177-377830 

Prosperity Coal, LLC SE 2016-172 40-03177-375583 

Prosperity Coal, LLC SE 2016-173 40-03177-374168 

Prosperity Coal, LLC SE 2016-174 40-03177-373191 

Prosperity Coal, LLC SE 2016-175 40-03177-370978 

Prosperity Coal, LLC SE 2016-176 40-03177-368180 

Prosperity Coal, LLC SE 2016-177 40-03177-365843 

Prosperity Coal, LLC SE 2016-178 40-03177-363251 

Prosperity Coal, LLC SE 2016-179 40-03177-360240 

Prosperity Coal, LLC SE 2016-180 40-03177-357605 

Prosperity Coal, LLC SE 2016-181 40-03177-355292 

Prosperity Coal, LLC SE 2016-182 40-03177-346722 

39 FMSHRC Page 993
Distribution: 

Sam Brashears 

Prosperity Coal, LLC 

109 Brookcove Dr. 

Danville, KY 40422 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 994
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 11, 2017 

 

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

 

ORDER

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On July 8, 2016 the Commission received from Continental 

Cement Company, LLC (“Continental Cement”) a motion seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or another reason 

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

far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have 

also observed that default is a harsh remedy and that, if the defaulting party can make a showing 

of good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on May 14, 2016, and became a 

final order of the Commission on June 13, 2016. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CONTINENTAL CEMENT COMPANY, 

LLC 

 Docket No. CENT 2016-458-M 

 A.C. No. 23-02434-409715 

39 FMSHRC Page 995
Continental Cement asserts that its failure to timely file its contest to the proposed 

assessment was due to the unusually busy personal and work-related travel schedule of the 

mine’s health and safety manager, who was charged with contesting the penalties at the mine. 

The operator states that upon receipt of the proposed assessment, it forwarded the assessment to 

the health and safety manager, who was on vacation. Upon returning from vacation, the health 

and safety manager’s work schedule included two weeks of new miner safety training, an audit, 

and an MSHA inspection. Continental Cement discovered its default on its own and filed its 

motion 25 days after the order became final. The operator provides an affidavit from the health 

and safety manager that supports its claims. 

The Secretary does not oppose the request to reopen, but urges the operator to take steps 

to ensure that future penalty contests are timely filed. 

 Having reviewed Continental Cement’s request and the Secretary’s response, we 

conclude that the operator’s failure to timely contest the two citations herein was the result of 

inadvertence and mistake on the part of a single individual. In the interest of justice, we hereby 

reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings 

pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty 

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

 /s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

 /s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 996
Distribution: 

Dinah L. Choi, Esq. 

Ogletree, Deakens, Nash, Smoak & Stewart, P.C. 

The KOIN Center, Suite 1500 

Portland, OR 97201 

Matt Helms 

Plant Manager 

10107 Highway 79 

Hannibal, MO 63401 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 997
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 11, 2017 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On June 17, 2016, the Commission received from Nyrstar

Gordonsville, LLC (“Nyrstar”) a motion seeking to reopen a penalty assessment that had become

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or another reason 

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

far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have 

also observed that default is a harsh remedy and that, if the defaulting party can make a showing 

of good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 21, 2016, and became a 

final order of the Commission on May 23, 2016. Nyrstar asserts that it intended to contest the 

citations but mistakenly paid them instead. Nyrstar’s safety and health manager states that the 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

NYRSTAR GORDONSVILLE, LLC 

Docket No. SE 2016-255-M 

A.C. No. 40-00864-408129

39 FMSHRC Page 998
operator had been on alert to watch for and contest the two citations at issue here because the 

citations arose out of an incident involving the injury to a contractor at the mine.1 The two 

Nyrstar employees tasked with reviewing MSHA assessments nevertheless failed to note the two 

citations at issue here because the proposed penalties were lower than expected. The operator 

further asserts that the mine’s safety supervisor, who was the first employee to review MSHA’s 

assessments, was transitioning to a new position with the company in a different part of the state. 

At the same time, Nyrstar’s safety and health manager, who provides the second review of 

assessments, was preoccupied with an occupational health and safety audit and therefore failed to 

fully review the citations. 

Nyrstar avers that it has amended its system of handling MSHA penalty assessments to 

include a third level of review. The Secretary does not oppose the request to reopen, but urges 

the operator to take steps to ensure that it understands all future documents sent by MSHA. 

Having reviewed Nyrstar’s request and the Secretary’s response, we find that the failure 

to contest the two citations herein was an inadvertent mistake. In the interest of justice, we 

hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

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

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

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

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 1

 Nyrstar challenged the citations in a conference with MSHA, and MSHA subsequently 

amended parts of the two citations. 

39 FMSHRC Page 999
Distribution: 

Robert Huston Beatty, Jr. 

Dinsmore & Shohl LLP 

801 Pennsylvania Ave, NW 

Washington, DC 20004 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1000
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 11, 2017 

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

 

ORDER

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On June 29, 2016, the Commission received from Pete Lien 

and Sons, Inc. (“Pete Lien”) a motion seeking to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or another reason 

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

far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have 

also observed that default is a harsh remedy and that, if the defaulting party can make a showing 

of good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on March 17, 2016, and became 

a final order of the Commission on April 18, 2016. MSHA records further indicate that a 

delinquency notice was sent to Pete Lien on June 1, 2016. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

PETE LIEN AND SONS, INC. 

 Docket No. WEST 2016-570-M 

 A.C. No. 05-03222-405208 

39 FMSHRC Page 1001
The operator asserts that it intended to contest two of the eight citations included in the 

proposed penalty assessment from MSHA and pay the remainder. The operator states that it 

inadvertently mailed the contest form, along with a check for the citations it did not wish to 

contest, to the MSHA payment office in St. Louis instead of to MSHA’s Arlington office. Pete 

Lien states that it realized this mistake only upon receiving MSHA’s delinquency notice. The 

Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure 

that future penalty contests are timely filed. 

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

operator’s failure to properly file its contest form was an inadvertent mistake. In the interest of 

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

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

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

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

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1002
Distribution: 

Holly Lien 

Pete Lien & Sons 

Division Manager 

P.O. Box 440 

Rapid City, SD 57709 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1003
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 17, 2017 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 6, 2016, the Commission received from Ferraiolo 

Construction (“Ferraiolo”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the Default Order entered against it. 

 

 On December 1, 2015, the Mine Safety and Health Administration (“MSHA”) issued a 

proposed assessment to Ferraiolo at its address at 279 Main Street, Rockland, Maine. Ferraiolo 

timely contested the proposed assessment, listing the aforementioned address as its address of 

record. Nevertheless, when the Secretary subsequently filed his Petition for Assessment of Civil 

Penalty in Docket No. YORK 2016-47-M, his representative mailed the operator’s copy of the 

Petition to a different address, 28 Gordon Drive, Rockland, Maine.1

 Ferraiolo did not file an Answer to the Secretary’s Petition. Accordingly, on March 10, 

2016, the Chief Administrative Law Judge issued an Order to Show Cause directing Ferraiolo to 

respond or else the docket would be dismissed. This order was also mailed to the 28 Gordon 

Drive address, and was returned undelivered by the Post Office 12 days later. By its terms, the 

Order to Show Cause was deemed a Default Order on April 11, 2016, when it appeared that the 

operator had not filed an answer within 30 days. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Since no petition for discretionary review was filed, the Judge’s order here has 

become a final order of the Commission. 30 U.S.C. § 823(d)(1). 

 1

 The Gordon Drive address apparently was Ferraiolo’s prior address. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 v. 

FERRAIOLO CONSTRUCTION 

 Docket No. YORK 2016-47-M 

 A.C. No. 17-00584-397754 

 Docket No. YORK 2016-108-M 

 A.C. No. 17-00584-397754 

39 FMSHRC Page 1004
In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

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

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the 

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

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

 

Upon review of the record, we find that the Petition for Assessment of Civil Penalty and 

the Order to Show Cause were delivered to an incorrect address and that Ferraiolo never received 

them.2 Ferraiolo also cites to correspondence with an MSHA Conference and Litigation 

Representative (“CLR”) in which the operator provided, at the request of the CLR, a written 

explanation as to why the penalty was contested. The following day, the CLR thanked Ferraiolo 

for the e-mail and stated that he would get back to the operator at a later date. Ferraiolo asserts 

that, based on these communications, it believed that it had done all that was required for 

purposes of contesting the penalty. The Commission has received no opposition from the 

Secretary regarding the vacating of the default order and the reopening of these proceedings. 

 2

 Based on the parties’ pleadings (which implied that the case involved a failure to timely 

contest MSHA’s proposed penalty), the Commission had construed the motion to reopen as 

arising from a failure to contest a proposed assessment under section 105(a) of the Act, despite 

the Chief Judge having issued the Order to Show Cause. As a result, the Commission assigned 

the motion to reopen to another docket, No. YORK 2016-108-M, despite having already 

assigned the substantive case to Docket No. YORK 2016-47-M upon the filing of the Secretary’s 

Petition. Because the subsequent case was docketed in error and is duplicative, we hereby 

dismiss Docket No. YORK 2016-108-M. 

39 FMSHRC Page 1005
Having reviewed Ferraiolo’s request, we hold that the operator has sufficiently 

demonstrated a basis for relief due to the fact that the Petition for Assessment of Civil Penalty 

and the Order to Show Cause were sent to the wrong address and because the operator was 

confused by the correspondence with the CLR. Therefore, in the interest of justice, we hereby 

reopen the proceeding and vacate the default 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/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1006
Distribution: 

John Ferraiolo 

279 Main Street 

Suite 1 

Rockland, ME 04841 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1007
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

May 18, 2017 

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

 

ORDER

BY: Althen, Acting Chairman; Jordan, and Young, Commissioners 

 

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

§ 801 et seq. (2012) (“Mine Act”). On July 25, 2016, the Commission received from 

Susquehanna Coal Company (“Susquehanna”) a motion seeking to reopen a penalty assessment 

that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

SUSQUEHANNA COAL COMPANY 

 

 Docket No. PENN 2016-278 

 A.C. No. 36-08391-405897 

39 FMSHRC Page 1008
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 20, 2016, and became a 

final order of the Commission on May 20, 2016. Susquehanna asserts that the proposed 

assessment was sent to an office that is not located on mine property and is only occasionally 

occupied. The operator further asserts through an affidavit that while it has received MSHA 

documents at this address, it cannot recall receiving the assessment at issue. In addition, 

Susquehanna claims that it always intended to contest the penalties. Finally, the operator states 

that it is in the process of taking steps to change the address in the MSHA database to ensure that 

future documents will be delivered to the mine office that is occupied during normal business 

hours. The Secretary does not oppose the request to reopen, but urges the operator to take steps 

to ensure that future penalty contests are timely filed. 

 Having reviewed Susquehanna’s request and the Secretary’s response, in the interest of 

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

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

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

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

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 

39 FMSHRC Page 1009
Commissioner Cohen, dissenting: 

I disagree with my colleagues’ decision because I believe that the record does not contain 

sufficient information to establish good cause to reopen this civil penalty proceeding. 

In its motion to reopen, Susquehanna Coal Co. states, “the Proposed Assessment and 

Statement of Account was never received at the address noted on the Proposed Assessment.” In 

an affidavit supporting the motion, Susquehanna’s general manager at the mine further avers that 

the operator has received other MSHA documents at the office listed as its address of record, but 

the company does not recall receiving this penalty assessment. In response, the Secretary states 

that the proposed assessment was delivered by USPS Certified Mail on April 20, 2016. The 

Secretary did not provide a copy of the return receipt or any other means of verifying its mailing 

records. 

The parties’ two statements, taken at face value, appear to be irreconcilable. Because the 

operator’s request for relief is based wholly upon its assertion that the penalty assessment was 

never delivered, I cannot agree to reopen this final civil penalty assessment on the conflicting 

record before us. I would remand the case to the Chief Administrative Law Judge for 

development of the record on the issue of whether Susquehanna Coal received the proposed 

assessment. 

Accordingly, I dissent. 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1010
Distribution: 

Michael Peelish, Esq. 

Law Office of Adele Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1011

ADMINISTRATIVE LAW JUDGE DECISIONS
39 FMSHRC Page 1012
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9950 / FAX: 202-434-9949

May 5, 2017 

 

DECISION AND ORDER

Appearances: Rachel L. Graeber, Esq. & Jason Patterson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for the Petitioner 

 Christopher D. Pence, Esq., Hardy Pence PLLC, Charleston, West 

Virginia, for M-Class Mining, LLC 

Before: Judge Rae 

I. STATEMENT OF THE CASE 

These cases are before me upon a petition for assessment of civil penalties and two 

notices of contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, as 

amended, (“the Mine Act”), 30 U.S.C. § 815(d). Initially in dispute were two violations issued 

by the Secretary of Labor (“the Secretary”) to mine operator M-Class Mining, LLC (“M-Class”): 

Citation Number 7560565 and Order Number 7560566. 

A hearing was held in Mount Vernon, Illinois, at which time the parties notified me that 

they had agreed to settle Citation Number 7560565. I approved the settlement on the record. Tr. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

M-CLASS MINING, LLC, 

 Respondent. 

M-CLASS MINING, LLC, 

 Contestant, 

 v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2015-587 

A.C. No. 11-03189-384770 

Mine: MC#1 Mine 

CONTEST PROCEEDINGS 

Docket No. LAKE 2015-285-R 

Citation No. 7560565; 01/28/2015 

Docket No. LAKE 2015-286-R 

Citation No. 7560566; 01/28/2015 

Mine: MC #1 Mine 

Mine ID: 11-03189 

39 FMSHRC Page 1013
6-8.1

 The parties presented testimony and documentary evidence on the remaining violation, 

Order Number 7560566, and later filed post-hearing briefs. 

I have reviewed all of the evidence at length and have cited to the testimony, exhibits, 

and arguments I found critical to my analysis and ruling herein without including a detailed 

summary of the testimony given by each witness. Based on the entire record and my 

observations of the demeanor of the witnesses, I uphold Order Number 7560566 as written and 

assess a penalty of $7,000.00 for the violation alleged therein, for the reasons discussed below. 

II. STIPULATIONS 

The parties have entered into the following stipulations: 

1. M-Class is an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), 

at the coal mine at which the citation and order at issue in these proceedings were issued. 

2. MC#1 Mine is operated by M-Class. 

3. MC#1 Mine is subject to the jurisdiction of the Mine Act. 

4. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to sections 

105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823. 

5. The individual whose signature appears in Block 22 of the citation and order at issue in 

these proceedings was acting in his official capacity and as an authorized representative 

of the Secretary of Labor when the citation and order were issued. 

6. A duly authorized representative of the Secretary served the subject citation and order 

and termination of the citation and order upon the agent of M-Class at the dates and place 

stated therein as required by the Mine Act, and the citation and order and terminations 

may be admitted into evidence to establish their issuance. 

7. The total proposed penalties for the citation and order will not affect M-Class’ ability to 

continue in business. 

8. The citation and order contained in Exhibit A attached to the Petition for Assessment of 

Penalty for these dockets are authentic copies of the citation and order at issue in these 

proceedings with all appropriate modifications and terminations, if any. 

9. Exhibit S-8, the Assessed Violation History Report, is an accurate and authentic history 

of M-Class’ violation history. 

10. The proposed penalty of $5,000.00 is appropriate if Order Number 7560566 is affirmed 

in all aspects. 

11. If the fact of the violation is affirmed, the inspector properly evaluated all aspects of 

Section 10 of the order. 

Joint Exhibit 1; Tr. 8-9, 172-73. 

 1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits admitted at hearing are numbered S-2, S-3, S-6, S-7, and S-8. See Tr. 94-96, 

119, 130, 172. M-Class did not offer any exhibits. 

39 FMSHRC Page 1014
III. FACTUAL BACKGROUND 

This proceeding arises out of a November 20, 2014 incident in which miner Todd Davis 

was seriously injured while working at the MC #1 Mine, a large underground coal mine operated 

by M-Class in Franklin County, Illinois. Tr. 15, 237. Davis, who is a field service representative 

for equipment manufacturer Joy Global, was assigned as the life cycle manager for the mine’s 

longwall shearer at the time of the accident. Tr. 51-53. He was at the longwall face at 

approximately 8:20 PM during the evening shift on November 20 when a hydraulic hose 

delivering a water and synthetic oil emulsion to a longwall shield at a pressure of 4,200 pounds 

per square inch (psi) ruptured and released a jet of fluid that struck Davis from below as he sat 

on or leaned back against a longwall base lift support to let other miners pass by. Tr. 53, 103, 

114; Ex. S-3 at 3. The high-pressure fluid sliced through his pants and shot into his body, 

lacerating his rectum and causing immediate loss of bowel control and bleeding. Tr. 58, 63. 

“[T]he first thing I remember is [maintenance worker] John Lence coming up, asking if I was 

okay,” Davis testified. “I told him, no, I felt like I had some kind of – my insides were hanging 

outside of my body is what I felt like. I needed to get out now.” Tr. 53. 

Lence helped Davis to a Kubota vehicle to transport him out of the mine and called ahead 

to the surface for an ambulance. Tr. 54-56, 68-69, 98, 115. Davis testified he was in shock and 

frantic to get out of the mine. Tr. 55-56. Blood had pooled in his seat on the ride and was running 

onto the floor by the time he and Lence reached the surface. Tr. 58, 115, 258. M-Class 

management official Gabe Wheeler and mine manager Mike Lily met them there. Tr. 57, 116, 

182. Davis’ coworkers wrapped him in a blanket and tried to keep him calm until the ambulance 

arrived to pick him up. Tr. 57-58, 70. 

Davis was first taken to Franklin County Hospital, which is a small local hospital in 

Benton, Illinois. Tr. 15, 20, 61, 78, 84. He was joined there by his wife, Laura; his immediate 

and second-line supervisors from Joy Global; M-Class safety director Girolamo Intravaia; and 

M-Class general manager Travis Brown, who furnished the doctors with a copy of the material 

safety data sheet (MSDS)2

 for the hydraulic emulsion that had been injected into Davis’ body. 

Tr. 66, 77-78, 183-86, 208, 210-12. After undergoing a CT scan, Davis was airlifted in a Life 

Flight helicopter to Barnes-Jewish Hospital in St. Louis, Missouri, where he was taken into 

emergency surgery. Tr. 61-65, 79-81, 84-85, 245. He remained hospitalized for seven days and 

returned for a number of subsequent surgeries to treat his internal injuries, which included a 

lacerated rectum, damaged colon, and burst bladder. Tr. 61, 66-67, 125, 233, 245, 257. 

M-Class did not notify MSHA of Davis’ accident the day it occurred. However, the next 

morning, the company’s President of Underground Operations, Anthony Webb, placed a 

“courtesy call” to a supervisor at the local MSHA field office to inform him of the accident. Tr. 

27, 215, 245-47. The MSHA supervisor, Dean Cripps, believed further investigation may be 

warranted based on past experiences in which he had received inaccurate accident information 

from M-Class. Tr. 29-30. Accordingly, after consulting with his district supervisor, Cripps issued 

 2

 An MSDS is an information sheet that describes the chemical composition of a material 

and any human health risks it poses. Tr. 221-22. 

39 FMSHRC Page 1015
a section 103(j) order3

 and initiated an accident investigation. Tr. 29-30; see Ex. S-2. He first 

phoned a Joy Global representative, who informed him that Davis had undergone surgery and 

was in a critical care unit at Barnes-Jewish Hospital with “some pretty serious injuries”; this 

indicated to Cripps that the accident was more serious than he had initially been led to believe. 

Tr. 30-31, 39, 152. He then traveled to the mine with MSHA Inspector Chad Lampley to 

interview witnesses and inspect the accident scene. Tr. 31, 90-91, 102; 250; see Ex. S-3. Cripps 

and Lampley did not issue any violations while at the mine because they wanted to interview 

Davis first. Tr. 126-27, 141. After giving him some time to recover from his injuries, Lampley 

interviewed him by phone on January 27, 2015. Tr. 127, 130. 

The next day, January 28, 2015, Inspector Lampley issued the two enforcement actions 

that spurred this litigation. Tr. 130; see Ex. S-7. Citation Number 7560565 was issued under 

section 104(a) of the Mine Act and alleged that M-Class violated 30 C.F.R. § 75.1725(a) by 

operating the #7 longwall shield with a frayed hydraulic hose that ultimately ruptured, injuring 

Davis. M-Class has accepted this violation in settlement.4 The remaining enforcement action, 

Order Number 7560566, was issued under section 104(d)(2) of the Mine Act5

 and alleges that MClass violated 30 C.F.R. § 50.10(b) by failing to notify MSHA of the accident within 15 minutes 

of the time mine management knew or should have known that Davis had sustained injuries 

having a reasonable potential to cause death.

 3

 A j-order is a type of enforcement action issued after an accident that usually directs the 

mine operator to preserve the accident scene for investigative purposes and to cease work in the 

affected area until MSHA determines that no further hazard exists. Tr. 89-90, 255-56; see 30 

U.S.C. § 813(j). 

4

 M-Class also accepted the Secretary’s gravity and negligence designations and agreed 

to pay a reduced penalty. The violation is designated “significant and substantial” (S&S), with 

the likelihood of injury marked “highly likely” and the expected injury “fatal” and affecting one 

person. The negligence is designated “moderate.” The Secretary originally proposed a “specially 

assessed” penalty of $52,500.00 for the violation, but agreed to accept a settlement amount of 

$15,750.00 (which is slightly more than the amount that would have been proposed under the 

Secretary’s “regular assessment” formula) on grounds that there are no extenuating 

circumstances to justify the special assessment other than the fact that a “Rules to Live By” 

standard was violated. Tr. 6-8; see 30 C.F.R. Part 100. I have considered the representations and 

documentation submitted by the parties with respect to Citation Number 7560565, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Mine Act. 

5

 The issuance of an order under section 104(d)(2) denotes that the alleged violation was 

caused by the mine operator’s “unwarrantable failure” to comply with a mandatory health or 

safety standard and that the operator previously received other unwarrantable failure violations 

without an intervening clean inspection. See 30 U.S.C. § 814(d)(2); Lodestar Energy, Inc., 25 

FMSHRC 343, 345 (July 2003).

39 FMSHRC Page 1016
IV. LEGAL PRINCIPLES 

A. Violation 

A mine operator is strictly liable for Mine Act violations that occur at its mine. Spartan 

Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any 

alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. 

Keystone Coal Mining Corp., 153 F.3d 1096 (D.C. Cir. 1998). 

B. Gravity 

Gravity is generally expressed as the degree of seriousness of a violation. Hubb Corp., 22 

FMSHRC 606, 609 (May 2000); Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). 

The Secretary assesses gravity in terms of the reasonable likelihood of injury, the severity of the 

expected injury, the number of persons affected, and whether the violation is S&S. The 

Commission has pointed out that the focus of the gravity inquiry “is not necessarily on the 

reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the 

effect of the hazard if it occurs.” Consolidation Coal, 18 FMSHRC at 1550; see also Harlan 

Cumberland Coal Co., 12 FMSHRC 134, 140-41 (Jan. 1990) (ALJ) (explaining that some 

violations are serious notwithstanding the likelihood of injury, such as a violation of an 

important safety standard, a violation demonstrating recidivism or defiance on the operator’s 

part, or a violation that could combine with other conditions to set the stage for disaster). 

C. Negligence and Unwarrantable Failure 

Negligence is conduct that falls below the standard of care established under the Mine 

Act. Under the Secretary’s regulations, an operator is held to a high standard of care and is 

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

necessary precautions to prevent or correct them. 30 C.F.R. § 10.0(d). The Secretary defines high 

negligence as having occurred in connection with a violation when “[t]he operator knew or 

should have known of the violative condition or practice, and there were no mitigating 

circumstances.” Id. § 100.3, Table X. The Commission generally assesses negligence by 

considering what actions a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the cited regulation would have taken under the 

circumstances. Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016); see also Brody Mining, LLC, 

37 FMSHRC 1687, 1701-03 (Aug. 2015) (explaining that Commission ALJs “may evaluate 

negligence from the starting point of a traditional negligence analysis” rather than adhering to the 

Secretary’s Part 100 definitions); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 

1263-64 (D.C. Cir. 2016). 

 More serious consequences can be imposed under the Mine Act for violations that result 

from the operator’s unwarrantable failure to comply with mandatory health or safety standards. 

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 

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

Commission has determined that unwarrantable failure is aggravated conduct constituting more 

39 FMSHRC Page 1017
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (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); Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 136 (7th Cir. 1995). 

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

looking at all the facts and circumstances of each case to see if any aggravating factors or 

mitigating circumstances exist. These factors often include (1) the extent of the violative 

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

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

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

whether the operator had been placed on notice prior to the issuance of the violation that greater 

efforts were necessary for compliance. See CAM Mining, LLC, 38 FMSHRC 1903, 1909 (Aug. 

2016); Wolf Run Mining Co., 35 FMSHRC 3512, 3520 (Dec. 2013); IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009). Because supervisors are held to a high standard of care, another 

important factor supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001). 

The factors listed above must be viewed in the context of the factual circumstances of a 

particular violation, and it is not necessary to find that all factors are relevant or deserving of 

equal weight in order to determine that the violation is unwarrantable. Wolf Run, 35 FMSHRC at 

3520-21; E. Assoc’d Coal Corp., 32 FMSHRC 1189, 1193 (Oct. 2010); IO Coal, 31 FMSHRC at 

1351. However, all factors that are relevant should be considered. San Juan Coal Co., 29 

FMSHRC 125, 129 (Mar. 2007). 

V. FINDINGS OF FACT AND ANALYSIS 

A. Violation of 30 C.F.R. § 50.10(b) 

Order Number 7560566 alleges: 

The operator failed to immediately contact MSHA at once without delay 

and within 15 minutes once the operator knew or should have known that 

an accident occurred involving injury to a miner which had reasonable 

potential to cause death. An accident occurred at this mine on November 

20th, 2014 involving a high pressure hydraulic hose. The actuation of 

hydraulic pressure to retract the base lift cylinder for the No. 7 shield at 

the Viking Portal longwall, MMU-005 caused the hose to rupture at the 

base lift. This allowed high pressure hydraulic fluid (4,200 psi) to strike 

the miner, resulting in internal injuries with reasonable potential to cause 

death. The operator engaged in aggravated conduct constituting more than 

ordinary negligence in that the operator, once aware of the injured 

39 FMSHRC Page 1018
miner[’]s condition, failed to call the MSHA hotline. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Ex. S-6. 

The standard alleged to have been violated is 30 C.F.R. § 50.10(b), which provides: “The 

operator shall immediately contact MSHA at once without delay and within 15 minutes at the 

toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has 

occurred involving ... [a]n injury of an individual at the mine which has a reasonable potential to 

cause death.”6 

The regulation necessarily accords the operator a reasonable opportunity for investigation 

before the 15-minute clock begins to run, but this opportunity must be exercised “in good faith 

without delay and in light of the regulation’s command of prompt, vigorous action” and is 

“tempered by the urgent need to notify MSHA immediately” once it is clear that a reportable 

accident has occurred. Wolf Run Mining Co., 35 FMSHRC 3512, 3517 (Dec. 2013);

Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989). Because the decision to notify 

MSHA must be made in the field in a matter of minutes after a serious accident, the Commission 

has stated it should not be based on “clinical or hypertechnical opinions as to a miner’s chance of 

survival.” Cougar Coal Co., 25 FMSHRC 513, 521 (Sept. 2003). Rather, the operator should 

rely on readily available information such as the nature of the accident and any observable 

indicators of trauma, “resolv[ing] any reasonable doubt in favor of notification.” Signal Peak 

Energy, LLC, 37 FMSHRC 470, 476-77 (Mar. 2015). 

In Signal Peak, the Commission held that MSHA should have been notified of a roof fall 

within 15 minutes when a miner was thrown fifty to eighty feet by the force of the falling 

material, had a visible protrusion on his back from the impact, and told those around him that he 

was in great pain and was having trouble moving and breathing, even though he had good 

respiration and circulation and no obvious signs of internal bleeding. Id. at 471, 474-77. 

“Clearly, [the victim] was severely injured and the fortunate fact that he did not die from the 

injuries does not detract from a finding that the readily observable nature of his injuries 

presented a reasonable potential to cause death,” the Commission stated. Id. at 476. “[A] 

 6

 This regulation was promulgated under the authority of section 103(j) of the Mine Act. 

30 U.S.C. § 813(j). The statute states in pertinent part: “In the event of any accident occurring in 

any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate 

measures to prevent the destruction of any evidence which would assist in investigating the cause 

or causes thereof. For purposes of the preceding sentence, the notification required shall be 

provided by the operator within 15 minutes of the time at which the operator realizes that the 

death of an individual at the mine, or an injury or entrapment of an individual at the mine which 

has a reasonable potential to cause death, has occurred.” Id. The second sentence, from which the 

15-minute notification requirement derives, was added to the statute by the 2006 MINER Act as 

part of a Congressional push to improve mine emergency responses in the wake of several mine 

disasters. Mine Improvement & New Emergency Response Act of 2006, Pub. L. No. 109-236, sec. 

5(a), § 103(j), 120 Stat. 493, 498 (June 15, 2006); see Big Ridge, Inc., 37 FMSHRC 1860, 1866 

(Sept. 2015) (discussing effect of amendment). 

39 FMSHRC Page 1019
reasonable person would have concluded that [his] injuries posed a reasonable potential for death 

based on the available information.” Id. at 477. 

The Secretary asserts that in this case, like in Signal Peak, a reasonable person familiar 

with the factual circumstances surrounding Davis’ accident would have recognized a potential 

for severe, life-threatening internal injuries. According to the Secretary, M-Class should have 

reported the accident at three separate points: first, when Davis was brought out of the mine; 

second, when General Manager Brown brought the MSDS for the hydraulic emulsion to Franklin 

County Hospital and expressed concern about Davis’ risk of infection; and third, when Davis 

was airlifted to Barnes-Jewish Hospital in St. Louis. Sec’y Br. 14-18. 

M-Class’ witnesses concede that this was a serious accident, (Tr. 215-16, 238, 240), but 

M-Class nonetheless contends that the violation should be vacated because there was no point 

when mine management knew or should have known that Davis’ injuries had a reasonable 

potential to cause death. According to M-Class, the injuries were not readily apparent on the day 

of the accident and the company had no reason to suspect the extent of the “hidden injury” until 

management learned the next morning that Davis had undergone surgery, at which time he was 

no longer at risk of death. Resp. Br. 1-3, 11-14. 

I reject M-Class’ contention that the injuries were not readily apparent. In this case, like 

in Signal Peak, a reasonable mine operator would have realized the accident was life-threatening 

and needed to be reported within 15 minutes on the basis of the information that was readily 

available to management, including the nature of the accident and numerous readily observable 

indicators that Davis had sustained serious internal injuries. 

The nature of the accident was penetrating trauma to the rectum by high-pressure 

hydraulic fluid released from a ruptured hose. The fluid was pressurized at 4,200 psi. Tr. 33, 

104-05. The Secretary’s two MSHA witnesses, Cripps and Lampley,7

 described this as a 

“massive amount of pressure” that is three times what a power washer would exert and discussed 

past incidents where miners have suffered severe and even fatal injuries after being struck by 

fluid at similar pressures or by hoses or fixtures propelled by such fluid. Tr. 32-33, 43-44, 47-49, 

106-09. Any reasonable person familiar with high-pressure hydraulic equipment, including 

anyone operating a longwall, would be expected to immediately realize that a struck-by accident 

involving a ruptured 4,200 psi hydraulic hose is very serious. See Tr. 48-49, 113, 219. 

In this case, the 4,200 psi hydraulic fluid was injected into Davis’ body, increasing the 

likelihood the injuries would be life-threatening. It was readily apparent that a fluid injection 

injury had occurred, as Davis was bleeding, had a hole in the back of his pants at the point of 

impact, and said that the fluid had shot inside of him. Tr. 58, 114-15, 162; Ex. S-3 at 27. The 

fluid was an emulsion composed of 95% water and 5% synthetic oil. Tr. 32, 262. M-Class 

 7

 Cripps is the electrical supervisor for MSHA District 8 and has more than twenty years 

of experience with the agency. He holds a Bachelor’s degree in electrical engineering technology 

and previously worked in the mining industry as an electrical engineer, underground 

maintenance foreman, and longwall foreman from 1983 until he was hired by MSHA in 1991. 

Tr. 25-26. Lampley is a regular coal mine inspector. He worked as a longwall mechanic in an 

underground coal mine from 2005 to 2007, when he was hired by MSHA. Tr. 86-89. 

39 FMSHRC Page 1020
presented testimony purporting to establish that this was not a hazardous substance. Brown 

testified that synthetic emulsions are less harmful than petroleum-based emulsions and are 

advertised as posing no risk of death, and Webb went so far as to opine that this particular 

emulsion was perfectly safe and would pose no human health risks at all even if injected into the 

bloodstream or ingested. Tr. 208-09, 227-31, 260-61. M-Class did not identify the emulsion or 

provide a copy of the MSDS to corroborate this testimony, and neither of the MSHA witnesses 

were familiar with the claimed safety advantages of synthetic emulsions. Tr. 43, 159, 264-65. 

Regardless, I agree with the Secretary’s witnesses that the risk of injury or infection is very high 

any time a fluid pierces a person’s skin at 4,200 psi irrespective of the chemical composition of 

the fluid. Tr. 32, 121, 132-33. As Webb conceded, any open wound presents an infection risk, 

even if the penetrating material is pure water. Tr. 262-63. In addition, the fluid shot through 

Davis’ work bibs in this case. The fabric could have carried numerous contaminants which 

would have been forced into his body, posing a serious risk of infection. Further, the precise 

manner the injection injury occurred was gruesome and posed a particularly high risk of internal 

harm. The hydraulic fluid did not just pierce Davis’ skin, but impaled him through the rectum at 

an extremely high pressure. The nature of this accident alone would have led a reasonably 

prudent person to conclude there was a reasonable potential for death. 

Moreover, there were other readily observable indications that Davis had sustained 

serious and potentially life-threatening internal injuries. Relying on the testimony of three 

management officials who did not examine Davis, did not witness the accident, and were not 

present when he was brought out of the mine, M-Class argues that the severity of the injuries was 

not immediately obvious because Davis was conscious, responsive, and mobile after the accident 

with stable vital signs and no overt signs of shock. Resp. Br. 12. This argument ignores key facts 

and trivializes the seriousness of the situation at the mine that day. After being struck by the 

hydraulic fluid, Davis had soiled himself and was bleeding profusely from the rectum. Tr. 58-60. 

He told Lence that the 4,200 psi hydraulic fluid had shot inside of him, that he was not okay and 

needed to get out of the mine immediately, and that he felt as if his intestines were hanging out 

and as if “there was something wrong inside.” Tr. 53-54, 114-15, 145. It is true that he was 

“mobile” in the sense that he walked partway from the longwall to the Kubota on his own power, 

but this was more a reflection of his panicked desire to get to the surface than a sign of healthy 

vigor. Lence had initially helped him off the longwall face and walked with him some distance 

before running ahead to get the Kubota, not realizing Davis had the keys in his bibs. Tr. 54-55. 

Davis continued walking by himself until Lence returned because he “was very frantic” and 

wanted to get out of the mine. Tr. 55. By his own account, which I find entirely credible, he was 

in shock and extremely worried. Tr. 55-56. His coworkers wrapped him in a fire blanket when he 

finally reached the surface, presumably because he was shaking. Tr. 57-58, 70. He was still 

bleeding heavily to the extent that when he was loaded into the ambulance he left behind a pool 

of blood on the seat of the Kubota and running down the side. Tr. 58, 115, 258. All of these 

factors clearly indicated he had sustained serious internal injuries. 

To summarize, although Davis was conscious and alert after the accident, he had been 

impaled in the rectum by a 4,200-psi hydraulic oil emulsion, had soiled himself and was bleeding 

profusely, was in shock, and said that he felt like his insides were hanging out. The wound was 

not, as Webb suggested, akin to an “overglorified paper cut,” and I wholly reject M-Class’ 

argument that the injuries “appeared superficial.” Tr. 243; Resp. Br. 3. Any reasonable person 

39 FMSHRC Page 1021
aware of the nature of the accident and Davis’ symptoms and presentation would have 

recognized he was suffering from potentially life-threatening internal injuries. 

Mine management was or should have been aware of both the nature of the accident and 

Davis’ condition before he left the mine and should have called the MSHA hotline to provide 

notification of the accident within 15 minutes of the time he reached the surface. From the 

managers who were onsite that day to the supervisor of the entire mining complex, Webb, 

management personnel all the way up the chain of command were aware of the accident almost 

immediately after it happened and knew or could have easily learned of the circumstances 

surrounding it. Lence radioed warehouse personnel on the surface and notified them of the 

accident while he was transporting Davis out of the mine. Tr. 56-57, 69. He also called 

management official Gabe Wheeler. Ex. S-3 at 26. Wheeler and mine manager Mike Lily met 

Lence and Davis on the surface and were present when Davis was loaded into the ambulance to 

be taken to Franklin County Hospital. Tr. 57, 116, 182, 259. Meanwhile, warehouse personnel 

had called the mine’s safety director, Intravaia, and general manager, Brown, to notify them of 

the accident, and Intravaia in turn had notified Webb. Tr. 181, 206, 241-42. Both Intravaia and 

Brown immediately began driving to the mine, and on the way, Intravaia spoke to Lily by phone 

to obtain more information and then called Brown, who called the warehouse and instructed that 

the MSDS for the synthetic oil emulsion be sent to the hospital. Tr. 182-83, 207-08. Although 

Intravaia and Brown did not arrive at the mine in time to see Davis, both proceeded to Franklin 

County Hospital. Tr. 183, 210. Brown was able to briefly speak to Davis, his wife, and his Joy 

Global boss, and both Brown and Intravaia remained at the hospital until Davis was loaded into a 

helicopter to be airlifted to Barnes-Jewish Hospital in St. Louis. Tr. 184-86, 210-13. 

The point when mine management should have known of the need to report the accident 

within 15 minutes was when Wheeler and Lily met Davis on the surface after he was brought out 

of the mine. Davis said he discussed how he was feeling with Wheeler at that time. Tr. 57. 

“[T]here was blood on the ride, and I told him that I was really worried,” Davis testified. Tr. 57. 

Wheeler and Lily, neither of whom testified at the hearing, would have seen that Davis was 

bleeding on himself and the Kubota, had a hole in his pants, had experienced a spontaneous 

bowel movement, and was in shock. They would have watched as he was wrapped in a blanket 

and loaded into the ambulance, and they would have been able to talk to Lence about the 

accident after the ambulance departed, since they did not travel to the hospital. In other words, 

they had every reason and opportunity to find out what had happened and recognize the 

seriousness of Davis’ injuries. At this point, as members of mine management, they should have 

ensured the accident was promptly reported to MSHA. Webb stated they did not do so because 

“although it being a bad accident, severe, in their minds there was no life-threatening injuries” 

because Davis was walking and talking. Tr. 240. But Webb’s later testimony suggested that the 

decision not to call the MSHA accident hotline was actually made by upper management 

officials who were not present and did not observe Davis’ condition. “[W]e have a protocol that 

we follow. And if you err from that protocol, then it opens up for lower level managers to make 

decisions that they don’t need to make,” he stated. Tr. 263. The Commission has frowned on this 

sort of attitude. “[A]n operator may not designate one specific person, such as a safety manager, 

to place the immediate call to MSHA. Once a person with sufficient authority to call learns of an 

event injuring a miner, the clock begins to run,” according to the Commission. Signal Peak, 37 

FMSHRC at 476. I find that the foremen onsite should have realized that Davis had suffered 

39 FMSHRC Page 1022
potentially life-threatening injuries, at which point the clock began to run for M-Class to notify 

MSHA of the accident within 15 minutes. 

M-Class presented testimony from Intravaia, Brown, and Webb purporting to explain 

why mine management did not timely report the accident. However, I find that each of these men 

had the information necessary to realize the life-threatening nature of Davis’ injuries and, as 

members of mine management, they should have ensured MSHA was notified of the accident 

promptly. 

At the time of the accident, Intravaia was the mine’s safety director, in which capacity he 

received notification of all accidents that occurred at the mine and was responsible for ensuring 

compliance with the Part 50 reporting requirements. Tr. 175-76, 180, 195. When he called mine 

manager Lily immediately after hearing of the accident, he learned that a hydraulic hose had 

ruptured and struck Davis and that Davis “might have a little laceration above either his lower 

back and then on one of his buttocks areas.” Tr. 182-83, 188. Intravaia traveled to Franklin 

County Hospital and observed Davis in an examination room sitting upright on a gurney while 

talking on his cell phone. Tr. 184, 198. Intravaia made eye contact with Davis but did not talk to 

him or his wife. Tr. 185. “It seemed like there was no concern,” he testified. Tr. 185. Davis was 

“conscious, alert, oriented times three, [and] was not complaining of anything.” Tr. 195. No one 

told him that Davis had suffered internal injuries or was bleeding, Intravaia said. Tr. 197, 199. 

He had been a firefighter and emergency medical responder for twelve years before he began 

working for M-Class. Tr. 177-80. He asserted that after visiting the hospital, based on his 

knowledge and experience as an EMT, he did not believe Davis’ injuries were an emergency or 

life-threatening. Tr. 189. 

I do not credit this assertion. Intravaia leaned on his paramedic experience as proof of his 

qualifications to determine whether the injuries were life-threatening, but admittedly, he did not 

see the injuries, examine Davis, or even speak to Davis or his wife. Tr. 185, 192, 198-99. In fact, 

he spent much of his time on the witness stand attempting to disclaim any knowledge of Davis’ 

condition or the extent of the injuries. He said he did not view the damage to Davis’ rectum as a 

traumatic injury because “I’m not a doctor so I can’t really assess that.” Tr. 190. Asked how his 

firefighter training prepared him to handle internal injuries, he responded, “Internal injuries, 

nobody can inspect.” Tr. 190. He testified that as long as an injured person is conscious and alert, 

he would not consider the person’s injuries life-threatening because “I don’t know what effects 

he has going on in the inside.” Tr. 191. He admitted shock can be an indicator of internal 

injuries, but stated, “The only one who can diagnose shock would be a medical director or a 

physician.” Tr. 202. Yet he conceded that as an EMT, if he observed signs of shock and knew 

that a patient had sustained blunt force trauma, he would treat the patient for suspected internal 

injuries, which can be life-threatening and should be reported to the hotline. Tr. 192, 201-03. 

I find it implausible to believe that Intravaia had no suspicion of internal injuries after 

speaking to mine manager Lily and learning that Davis had been struck by an extremely high 

pressure hydraulic hose. Even if he was genuinely unaware of Davis’ condition, the 

circumstances of the accident should have alerted him, in his vast experience as an EMT, to the 

need for further inquiry. See Mainline Rock & Ballast, Inc. v. Sec’y of Labor, 693 F.3d 1181, 

1189 (10th Cir. 2012) (upholding violation of § 50.10 when “the obvious circumstances of the 

39 FMSHRC Page 1023
accident would have triggered some minimal degree of inquiry in a reasonable person” but 

supervisor “chose to remain blind”). A mine operator has a duty to investigate accidents under § 

50.10 to determine whether notification is required. Tr. 44-45, 163. And even though further 

investigation may not have revealed the precise character of Davis’ internal injuries, the 

Commission has indicated that a mine operator should not wait for a clinical or hypertechnical 

opinion regarding the nature of a miner’s injuries. Instead, the operator should err on the side of 

caution and provide prompt notification of any injury that may be life-threatening. 

Moreover, Intravaia should have had no doubt that the accident needed to be reported 

once he knew that Davis had been airlifted to Barnes-Jewish Hospital in St. Louis via a Life 

Flight helicopter. According to Davis, he was transferred so he could be taken into surgery as 

quickly as possible, and indeed, he underwent emergency surgery shortly after his arrival at 

Barnes-Jewish. Tr. 63-65. Laura Davis also testified that the doctor at Franklin County Hospital 

knew from the moment her husband arrived that he would need to be sent somewhere else 

because “this was way above him [the doctor].” Tr. 80-81. However, Intravaia indicated he still 

did not realize Davis’ injuries were life-threatening at this point, but simply believed the patient 

was being transferred for further diagnostics. Tr. 185-88. I do not credit this testimony. If 

Intravaia truly still believed that Davis’ injuries consisted of superficial lacerations on the lower 

back and buttocks, it would be patently unreasonable to think the patient was being airlifted to 

St. Louis in a Life Flight helicopter simply so the cuts could be evaluated and stitched up by a 

different doctor. See Tr. 118, 168-69. The use of a helicopter indicated this was a more 

complicated and serious injury requiring urgent care. 

Intravaia testified that he went to Franklin County Hospital that day “because I have a 

general concern for all our employees and anybody that’s on our facility. I care. And I also have 

a duty that I want to make sure myself and see what actually – what [Davis] looked like.” Tr. 

193. And yet, if his testimony is to be believed, he asked no questions of the victim, his wife, or 

the medical staff and remained unaware of the mechanism and nature of the injury (a hydraulic 

injection injury causing penetrating trauma to the rectum) and the reason for Davis’ transfer to 

St. Louis (to have surgery for internal injuries). He simply showed up at Franklin County 

Hospital, saw that Davis was conscious and alert, and departed, satisfied that the accident was 

not serious enough to warrant reporting. If so, I would find Intravaia’s investigation of the 

accident to be woefully inadequate. But I find it more likely that Intravaia was aware the 

accident involved a hydraulic injection injury and a risk of life-threatening internal injuries and 

simply failed to report it to MSHA within 15 minutes, in violation of § 50.10. 

Like Intravaia, General Manager Brown, who is the highest ranking official at the mine, 

receives notification of all accidents that occur onsite and is familiar with the 15-minute 

reporting requirement. Tr. 204-06, 214, 217. Brown testified that after being notified of the 

November 20, 2014 accident and traveling to Franklin County Hospital, where he spoke briefly 

with Davis and his wife, he did not believe Davis’ injuries had the potential to cause death. Tr. 

211-15. Brown admitted that blunt force trauma and a suspicion of internal injuries would trigger 

a reporting obligation under § 50.10. Tr. 220-21. But he testified he did not suspect internal 

injuries, noting that Davis was conscious and “said he was doing okay.” Tr. 211, 215, 226. 

Although Brown was in charge of investigating the accident on M-Class’ behalf and determining 

whether it needed to be reported, he conceded he did not ask Davis about his injuries and said he 

39 FMSHRC Page 1024
did not interview Lence or anyone else at the mine about the accident. Tr. 220-21, 223-25, 232. 

He stated he did not learn until the next day that the hydraulic fluid had penetrated Davis’ body. 

Tr. 225-26. 

I decline to credit Brown’s testimony that he was unaware the hydraulic fluid had 

penetrated Davis’ body. Shortly after learning of the accident, Brown called the mine and made 

sure the MSDS was submitted to the hospital. Tr. 207-08. This indicates mine management was 

aware a hydraulic injection injury had occurred, despite protestations by Brown and Webb that 

they simply wanted the doctors to know what type of fluid was involved in order to forestall any 

unnecessary treatment. Tr. 208-09, 223, 242, 260. In addition, Laura Davis testified that while 

she was at Franklin County Hospital, Brown “grabbed me and pulled me aside and said that 

based on the emulsion which is in the hose, and it was injected into Todd, that he was really 

concerned about how serious the emulsion could be for his body and thought that we should 

transfer him to St. Louis” rather than to a different hospital in Evansville. Tr. 79-80. Brown 

denied recommending one hospital over the other, but did not address whether he had discussed 

the hydraulic emulsion with Laura Davis. Tr. 211-12, 226-27. I credit her testimony that he did 

mention his concerns about the emulsion. This further supports a finding that Brown was aware 

Davis had suffered a serious hydraulic injection injury. Considering Brown’s position, his 

knowledge of the 15-minute reporting requirement, and the information known to him on 

November 20 regarding the accident and Davis’ condition, he should have ensured MSHA was 

notified promptly pursuant to § 50.10(b). 

Webb, supervisor of the mining complex, was also aware of the Part 50 reporting 

requirements and had the authority to notify MSHA of the accident. Tr. 236-37, 244. After Davis 

was injured, he received enough information about the accident that he should have ensured it 

was reported. Intravaia had called him just after the accident and advised that a hydraulic hose 

had ruptured and struck Davis. Tr. 241-42. Webb was aware that Davis’ skin had been pierced 

and that there was blood on the Kubota, and he later learned that Davis had been transferred from 

Franklin County Hospital to St. Louis by helicopter. Tr. 242-43, 258. He did not travel to the 

mine or hospital, so he had no firsthand knowledge of Davis’ condition, but he apparently 

participated in making the decision not to notify MSHA. Management believed Davis’ injuries 

were not life-threatening, he explained. Tr. 244, 253, 257-58. He further stated that “MSHA has 

a lot of things to do, and they don’t have the resources to come out and investigate what I would 

call frivolous calls.” Tr. 263. I find this to be a self-serving and disingenuous attempt to excuse 

mine management’s many failings in this case, including failure to err on the side of caution in 

reporting the accident and failure to adequately investigate it. Webb asserted that management 

“did our due diligence when it came time to investigate,” (Tr. 263), but if this were the case they 

should have recognized the life-threatening nature of the accident and notified MSHA 

immediately, for the reasons discussed above. 

The morning after the accident, Webb sent a text message to a supervisor at Joy Global 

inquiring about Davis’ condition. Tr. 244-45. The supervisor advised that Davis had undergone 

emergency surgery and had a lacerated rectum and damaged colon. Tr. 245. Webb said that was 

the point when he realized the injuries were more serious than he had previously thought, so he 

decided to call MSHA even though the time for immediate notification under § 50.10 had passed 

and Davis was no longer at risk of death. Tr. 238-39, 245-46. M-Class was “on shaky ground” 

39 FMSHRC Page 1025
and “looked upon with some distrust from MSHA” at the time because it was on the cusp of a 

pattern of violations (POV).8 Tr. 174, 237-39. Thus, according to Webb, his call to MSHA 

represented a good faith effort to build a better rapport with the agency rather than a belated bid 

to avoid receiving a Part 50 violation. Tr. 238-39, 246. Webb also asserted that M-Class had no 

incentive not to report the accident in the first place; management simply had not realized the 

injuries posed a reasonable potential for death. Tr. 238, 254. 

Citing Webb’s testimony, M-Class argues that even if its decision not to report the 

accident was a mistake, it acted in good faith. Resp. Br. 15. I reject this argument, for the 

following reasons. 

First, as discussed above, multiple members of mine management had enough 

information about the accident to realize it was reportable. There was no plausible good faith 

reason not to report it right away. 

On the other hand, M-Class had a motive not to notify MSHA immediately: avoiding a 

longwall shutdown. If the accident had been reported within 15 minutes, MSHA likely would 

have immediately issued a 103(j) order prohibiting alteration of the accident scene, and because 

the accident occurred on a longwall shield, this would have shut down coal production. Tr. 124, 

171, 255-56. Indeed, after learning of the accident, Cripps issued a 103(j) order prohibiting MClass from moving the longwall shield at the accident site, which prevented the longwall from 

being advanced and thereby halted production. Tr. 29, 91-93, 157-58. Inspector Lampley noted 

that while he and Cripps were at the mine conducting the investigation under the j-order, MClass representatives asked several times if the investigation was finished yet so the j-order could 

be terminated and production could resume. Tr. 110. In addition, M-Class had already 

disconnected the ruptured hose from the longwall equipment and replaced it with a functional 

hose before the investigation. Tr. 97-98, 251. Had a 103(j) order issued immediately, the mine 

likely would have had to wait to make these repairs, further delaying production. Tr. 256. 

In addition, M-Class failed to investigate the accident in good faith. Webb asserted that 

mine management “did our diligence when it come time to investigate the accident, and then we 

made a decision [not to notify MSHA] based off of that.” Tr. 263. But it is clear from the 

testimony of Intravaia and Brown, who – unlike Webb – were actually involved in investigating 

the accident, (Tr. 200, 232), that management’s investigative efforts prior to the issuance of the jorder were wholly inadequate. Although Intravaia and Brown were apparently in charge of the 

investigation, there is no evidence that either of them visited the mine the night of the accident. 

Neither of them ever interviewed Lence, the key eyewitness. Tr. 200, 224. Although they made 

an appearance at the hospital, Intravaia did not speak to anyone there and apparently learned 

nothing about the extent of Davis’ injuries. Brown spoke to Davis’ wife and boss from Joy 

Global, but indicated he learned nothing about Davis’ condition from either of them. Tr. 210-12. 

He said he spoke to Davis himself “for, maybe, less than five minutes” and asked only how he 

was doing, to which Davis responded “he was doing okay, and that was about it.” Tr. 211 He did 

not ask any more pointed questions which would indicate a bona fide investigation was being 

 8

 A “pattern of violations” can trigger enhanced enforcement action against a mine under 

section 104(e) of the Mine Act. MSHA sends the mine operator a POV notice before placing it 

on a POV. 30 U.S.C. § 814(e). 

39 FMSHRC Page 1026
made, such as where Davis’ injuries were, what he was feeling, what the doctors were saying, 

and why they wanted to transfer him to a larger hospital. Tr. 224-26, 232. It appears that MClass’ management officials intentionally failed to investigate the accident and closed their eyes 

to the severity of Davis’ injuries in hopes of later being able to disclaim knowledge of their 

extent. This indicates bad faith. 

M-Class cites Webb’s November 21 phone call to MSHA as evidence of good faith, but 

during the call, Webb misrepresented the nature and extent of Davis’ injuries. Cripps did not take 

notes during the call because Webb termed it a “courtesy call” rather than a formal accident 

notification; for this reason, Cripps could not remember the exact substance of the conversation. 

Tr. 27-28, 45-46. But he did recall that when he spoke to a Joy Global representative later in the 

day, he was surprised to learn that Davis had undergone surgery for serious internal injuries and 

was in a critical care unit in the hospital in St. Louis. Tr. 30-31, 39. This was inconsistent with 

the information he had received from Webb. Tr. 31, 39. It was not until Cripps and Lampley 

traveled to the mine to investigate that they learned “the extent of the injuries and actually what 

happened, you know, about the high-pressure hose blowing and ... possibly ... hydraulic oil 

being actually injected into Mr. Davis.” Tr. 31, 41-42. Webb, for his part, denied misleading 

Cripps and asserted he had recounted everything he knew at the time of the phone call, including 

that Davis had lacerated his rectum and undergone surgery. Tr. 246-50. However, I credit 

Cripps’ testimony that if this information had been relayed to him during the call, he would have 

issued a 103(j) order immediately, requested more details, and asked why the accident had not 

been reported through the hotline. Tr. 35-38. Instead he initiated an investigation later in the day 

after talking to his supervisor. Mine management continued to downplay the seriousness of the 

accident even after MSHA begun investigating, with Intravaia still referring to the victim’s 

injuries as “a one-inch cut on his backside” when he met with the investigators at the mine. Tr. 

117-18, 161, 164-66. I find that mine management failed to provide MSHA with complete, 

trustworthy information about the accident, showing a lack of good faith. 

For all the reasons discussed above, I find that M-Class violated § 50.10(b), and I reject 

the operator’s suggestion that the violation should be dismissed as a good faith mistake. 

B. Gravity 

In Section 10 of the order (the section titled “Gravity”), Inspector Lampley designated the 

violation as non-S&S with no likelihood of causing injury and marked the expected injury as an 

injury causing “no lost workdays” and affecting zero miners. According to his field notes, he 

made these minimal gravity designations because this was a mere reporting violation that did not 

affect Davis’ condition, the severity of his injuries, or the outcome of the accident. Ex. S-7 at 13-

14. The parties have stipulated that Inspector Lampley properly evaluated all aspects of Section 

10 of the order. Joint Ex. 1; Tr. 172-73. 

Although I accept the parties’ stipulation, I find that the gravity of this violation was 

extremely serious despite the inspector’s minimal gravity designations. The regulation that was 

violated, § 50.10(b), derives from an express and relatively recent Congressional mandate added 

to section 103(j) of the Mine Act in 2006 with the intent of improving MSHA’s ability to 

respond to mine emergencies promptly and effectively. See supra n.6. Prompt, accurate accident 

39 FMSHRC Page 1027
reporting enables MSHA to swiftly mobilize an appropriate response, including securing the 

scene of the accident and investigating what caused it. See Signal Peak, 37 FMSHRC at 477; 

Final Rule – Emergency Mine Evacuation, 71 Fed. Reg. 71430, 71434-35 (Dec. 8, 2006). MClass’ utter failure to comply with this mandate may not have directly endangered any particular 

miners, but still constituted a very serious violation in light of the importance of section 103(j) 

and the 15-minute notification requirement. 

C. Negligence and Unwarrantable Failure 

The Secretary contends that M-Class’ negligence in connection with this violation was 

high because Davis suffered severe injuries and members of mine management were present at 

the mine and hospital and aware of the injuries, yet no one called the hotline at any point, 

presumably because M-Class was trying avoid the issuance of a 103(j) order. Further, when MClass finally did notify MSHA of the accident, the information provided by the company did not 

accurately reflect Davis’ condition. The Secretary also argues that this violation amounted to an 

unwarrantable failure to comply with § 50.10(b), citing factors including the length of time it 

existed, its obviousness, and the operator’s knowledge of it. Sec’y Br. 19-24. 

M-Class counters that this violation did not involve high negligence and was not an 

unwarrantable failure because even if mine management made the wrong decision in failing to 

call the hotline, they acted in good faith – an argument I have already rejected. M-Class also asks 

to be credited for mitigating circumstances including the fact that Davis was quickly and 

efficiently transported out of the mine to the hospital. Resp. Br. 15-17. 

Knowledge of Violation; Obviousness 

 Knowledge of a violation is established where the operator knew or reasonably should 

have known of the violation. Coal River Mining, LLC, 32 FMSHRC 82, 95 (Feb. 2010). The 

knowledge or negligence of an agent may be imputed to the operator. Excel Mining, LLC, 37 

FMSHRC 459, 467-68 (Mar. 2015); Martin Marietta Aggregates, 22 FMSHRC 633 (May 2000). 

In this case, for the reasons discussed at length above, I find that the nature of the 

November 20, 2014 accident and the type of injuries Davis sustained were obviously reportable 

under § 50.10(b). He was struck from below by a 4,200-psi hydraulic oil emulsion. He told 

Lence that the hydraulic fluid had shot into his body and that it felt like his intestines were 

hanging out. He had a hole in his pants and had soiled himself, was bleeding onto his clothing 

and the vehicle that transported him out of the mine, and was in shock. After being taken by 

ambulance to the local hospital and briefly evaluated, he was airlifted by Life Flight helicopter to 

a critical care unit in St. Louis where he was taken into surgery in short order. These factors 

made it obvious that he had suffered life-threatening internal injuries. 

Mine management was aware of all the circumstances listed above. Two management 

officials, Wheeler and Lily, were present when Davis was brought out of the mine and would 

have been able to observe his condition and ask Lence what happened. Management officials 

Intravaia and Brown, both of whom are aware of the requirements of § 50.10 and are responsible 

for ensuring compliance with these requirements, were in contact with personnel at the mine 

39 FMSHRC Page 1028
regarding the accident, traveled to Franklin County Hospital with Davis, and were present when 

he was airlifted to St. Louis. Webb was also notified of the accident and should have investigated 

it and ensured that it was reported. Given the nature of the accident and the blatant signs of 

trauma and internal injuries, mine management would have had to be blind or willfully ignorant 

not to realize that the accident was reportable under § 50.10(b). I find that this was a knowing 

violation on the part of mine management, including Wheeler, Lily, Intravaia, Brown, and Webb, 

whose knowledge is imputable to M-Class. 

Notice of Need for Greater Compliance Efforts 

An operator’s history of past similar violations or other specific warnings from MSHA is 

relevant to the unwarrantable failure analysis to the extent the past violations and warnings 

placed the operator on notice that greater efforts were necessary for compliance with the cited 

safety standard. 

Inspector Lampley testified that at the time this violation was written in January 2015, the 

mine had received six prior violations of § 50.10 since September 2013, including a 104(d)(2) 

order. Tr. 123, 153-55; Ex. S-7 at 17. This was one of the main factors influencing his finding of 

aggravated conduct. Tr. 135; Ex. S-7 at 17. I agree that the prior violations support a finding of 

aggravated conduct. Being cited for the same violative conduct six times in the preceding fifteen 

months and receiving an unwarrantable failure withdrawal order should have placed M-Class on 

notice of the need to make greater efforts to comply with the requirements of § 50.10. 

In addition, as noted above, M-Class was on the cusp of being placed on a POV at the 

time this violation occurred, which is a symptom of poor overall compliance efforts. Given MClass’ admittedly “shaky” footing with MSHA, (Tr. 239), and the looming prospect that MSHA 

would take enhanced enforcement action against the company through the POV process, 

management should have been on notice of the need for greater compliance efforts all around 

and the need to be forthright with MSHA in all dealings in order to demonstrate good faith, 

which would include erring on the side of full, prompt disclosure of accidents under § 50.10. 

Duration of Violation 

Davis was injured at approximately 8:20 PM on November 20, 2014. Ex. S-3 at 3. When 

Lence brought him out of the mine shortly thereafter, the two foremen who met them on the 

surface should have assessed the situation and realized that the company needed to notify MSHA 

of the accident. The 15-minute clock began running at that point, but notification was not 

provided until the “courtesy call” was made the next morning. Webb made the call after arriving 

at the mine at his usual time, which was around 5:30 or 6:00 AM, and exchanging text messages 

with a Joy Global representative. Tr. 244-45. MSHA did not learn the full extent of Davis’ 

injuries until Cripps and Lampley further investigated the accident later that day. I conclude that 

the violative condition lasted for more than one shift but less than a day. 

39 FMSHRC Page 1029
Degree of Danger Posed by Violation 

The Secretary contends that the operator’s delay in reporting Davis’ accident placed other 

miners at risk of being injured by defective hoses. Sec’y Br. 23-24. This argument conflicts with 

the parties’ stipulation that there was no likelihood of injury. Tr. 172-73. There is no evidence 

there were any defective hoses on the longwall other than the one that ruptured, which was 

removed and replaced immediately after the accident because it was no longer functional (Tr. 

251), nor is there evidence that any miners were endangered by the operator’s delay in notifying 

MSHA of the accident. I find that this violation did not pose a direct danger to anyone. However, 

by their nature, reporting violations indirectly affect mine safety by hampering MSHA’s ability 

to respond effectively to accidents. 

Extensiveness; Abatement Efforts 

The extensiveness of a violation is usually analyzed in terms of the physical dimensions 

of the affected area, the number of miners endangered, how many man-hours are required to 

abate it, or other similar factors. Anyone working on the longwall near the frayed hose could 

have been the victim of this accident. In addition, I find that this violation was extensive in other 

ways. Specifically, it involved five management officials and an extensive number of missed 

opportunities to comply with § 50.10. Wheeler, Lily, Intravaia, and Brown all were members of 

mine management who had the knowledge and opportunity to report the accident to MSHA on 

November 20 yet failed to do so. Webb did finally report the accident on November 21, but 

failed to call the hotline, instead choosing to call the local district office, and provided 

incomplete information about Davis’ condition. When MSHA investigators conducted interviews 

at the mine later that day, mine management still seemed to be trying to downplay the 

seriousness of Davis’ injury, referring to it as a “one-inch cut on his backside” even though by 

then the victim was in a critical care unit in St. Louis recovering from emergency surgery for 

multiple internal injuries. Tr. 117-18, 161, 164-66. In short, five management officials ignored 

multiple opportunities to ensure that MSHA received a prompt and accurate report of the 

accident, ultimately leaving the agency to ascertain the nature of the accident and extent of the 

injuries through its own investigation. This string of negligent conduct is extensive enough to 

undercut M-Class’ assertion that mine management was acting in good faith. 

For the same reasons, I also conclude that M-Class’ abatement efforts undertaken prior to 

the issuance of the order were insufficient. 

 Conclusions 

Based on the factors discussed above, particularly the obviousness of the violation, the 

fact that M-Class had a troubling history of prior similar violations placing it on notice of the 

need to make greater efforts to comply with § 50.10, and the knowledge and involvement of five 

members of mine management, I find that M-Class engaged in aggravated conduct constituting 

more than ordinary negligence. I reject M-Class’ argument that its negligence was offset by its 

prompt and diligent efforts to investigate the accident and by the fact that Davis was quickly 

evacuated from the mine. The record does not support a finding that management made prompt 

and diligent investigative efforts. It is true that Davis was quickly and efficiently evacuated from 

39 FMSHRC Page 1030
the mine. In fact, Inspector Lampley praised the evacuation effort at hearing, stating that “they 

did an excellent job of getting him out of there, and that’s great, and I hope they continue to do 

so.” Tr. 116. But the speedy evacuation, while laudable, is unrelated to the notification violation. 

I find that this violation constituted an unwarrantable failure to comply with § 50.10(b), 

and it was appropriate for Inspector Lampley to issue the order under 104(d)(2). For the same 

reasons, I also find that M-Class’ negligence was high. 

VI. PENALTY 

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

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

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

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

consider: 

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

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

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

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

the person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 U.S.C. § 820(i). 

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

nor are they governed by MSHA’s Part 100 regulations, although substantial deviations from the 

proposed penalties must be explained using the section 110(i) criteria. See Am. Coal Co., 38 

FMSHRC 1987, 1992-93 (Aug. 2016); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). 

In addition to considering the 110(i) criteria, the judge must provide a sufficient factual basis 

upon which the Commission can perform its review function. See Martin Co. Coal Corp., 28 

FMSHRC 247, 266 (May 2006). 

The Secretary asks me to assess a penalty of $5,000.00 for this violation, which is the 

statutory minimum for violations of the 15-minute notification requirement. See 30 U.S.C. § 

820(a)(2). The parties have stipulated that the proposed penalty is appropriate if the order is 

affirmed in all aspects. Joint Ex. 1. 

The Secretary has submitted a violation history form showing that the MC #1 Mine 

received 1,130 violations from MSHA that became final during the two years preceding the 

issuance of this order. Ex. S-8. A number of these were Part 50 reporting violations, and 

Inspector Lampley testified M-Class’ recent violation history included six § 50.10 violations. Tr. 

123; Ex. S-8. 

39 FMSHRC Page 1031
The size of M-Class’ business is large. The parties have stipulated that the proposed 

penalty will not affect its ability to remain in business. Joint Ex. 1. 

My findings regarding gravity and negligence are discussed at length above in the body 

of my decision. In addition, I have discussed why I do not believe M-Class exhibited good faith 

in attempting to achieve rapid compliance after notification of the violation. Even after MSHA 

issued a 103(j) order and launched an accident investigation, M-Class left it to the MSHA 

investigators to discover what had actually happened and the extent of Davis’ injuries on their 

own. See Tr. 31. 

Considering the foregoing, it appears that the deterrent effect of the mandatory minimum 

penalty set forth in section 110(a)(1) is not sufficient. Prompt accident notification was important 

enough to Congress that it codified the 15-minute reporting requirement in section 103(j) and 

specified a minimum penalty. Yet M-Class, despite an alarming history of reporting violations, 

demonstrated a total indifference both to the statutory requirement and to Davis’ condition, 

altering the scene of the accident and apparently purposefully failing to conduct a bona fide 

investigation in order to avoid a coal production shutdown and being placed back on POV watch. 

After considering the six statutory penalty criteria, I find that a penalty of $7,000.00 is 

appropriate for this violation. 

ORDER 

M-Class is hereby ORDERED to pay a total penalty of $22,750.00 for the two violations 

at issue in this docket within thirty (30) days of the date of this Decision and Order.9 

 /s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Rachel L. Graeber, Esq. & Jason R. Patterson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 South Dearborn Street, Suite 844, Chicago, IL 60604 

Christopher D. Pence, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, Charleston, WV 

25301 

 9

 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. 

39 FMSHRC Page 1032
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

May 5, 2017 

DECISION 

Appearances: Thomas J. Motzny, Esq., 618 Church St., Suite 230, Nashville, Tennessee for the 

Complainant 

John B. Flood, Esq. and Lauren Marino, Esq., 1909 K St. NW, Washington, D.C. 

for the Respondent 

Before: Judge Moran 

 This case is before the Court upon a complaint of discrimination under Section 105(c)(2) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Mine Act” or 

“Act”). At issue is whether Complainant Jerry Ramsey (“Ramsey” or “Complainant”) was 

wrongfully terminated by the Respondent, Vulcan Construction Materials LLC (“Vulcan,” or 

“Respondent”) in retaliation for exercising his rights under the Act. For the reasons which 

follow, the Court finds that Ramsey was wrongfully terminated for exercising those rights and 

accordingly it orders appropriate relief, as set forth herein. 

SECRETARY OF LABOR, MINE 

SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf of 

JERRY RAMSEY, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. SE 2016-0145-DM 

MSHA Case No. SE-MD-16-06 

Mine: Bristol Quarry 

Mine ID: 40-02872 

39 FMSHRC Page 1033
Findings of Facts

Summary 

Complainant Jerry Ramsey filed the present discrimination complaint under the Mine Act 

on December 11, 2015.1 The Complainant asserted that he was terminated on December 4, 2015 

because his boss, Keith Austin, claimed that he, Ramsey, was using a cell phone on December 1, 

2015 while operating his haul truck. Use of a cell phone while working is prohibited by Vulcan 

policy. Ramsey denied that he was using a cell phone that day. 

 A hearing in this matter was held on Tuesday, August 2 and Wednesday, August 3, 2016 

in Rogersville, Tennessee, at which both parties presented evidence. Due to transcription 

problems, it was necessary to reconvene on December 8, 2016, in order to fill in audio gaps in 

the hearing record from the first day of the hearing. Those problems were adequately solved by 

the further testimony received on December 8th, as set forth in note 2, below.2 In reaching its 

findings of fact and conclusions of law, the Court fully considered all testimony and 

documentary evidence, as well as the parties’ post-hearing briefs. 

 At hearing, the Secretary sought to show that Ramsey was fired in retaliation for 

engaging in protected activities, including making safety complaints, making a discrimination 

complaint prior to the one that initiated this case, and for seeking to become a miners’ 

representative. The Respondent alleged several forms of improper behavior on Ramsey’s part 

yet, ultimately, they moved away from those allegations, arguing that Ramsey was actually fired 

																																																													 1

 As discussed herein, Complainant Ramsey filed an earlier discrimination complaint in 

September 2015. This decision addresses the Complainant’s December 11, 2015 complaint, but 

the earlier filed complaint is not without probative value. 

2

 Though scheduled, the court reporter did not appear for the first day of the hearing. The 

host courthouse then offered the use of its audio system to record the testimony. Both sides and 

the Court accepted that offer. Unfortunately, the recorded testimony had several “inaudible” 

portions, creating some gaps in the questions posed and witnesses’ testimony. A court reporter 

did appear for the second day of the hearing and there were no transcription problems for that 

day. The host courthouse sent a second audio recording of the Day 1 testimony with fewer audio 

gaps and the court reporter created a second version of that day’s testimony. However, because 

gaps still remained for the Day 1 testimony, the Court reconvened on December 8, 2016, giving 

counsel and the witnesses an opportunity to reconstruct missing questions and answers. The 

Court finds that, when the court reporter’s second effort to create a transcript for Day 1 is 

combined with the December 8th testimony, there is a fully adequate record of the testimony for 

Day 1 and that neither side was disadvantaged. The testimony for Day 1, though it required 

reconvening to fill in gaps, represents a complete explication of the testimony for that day. In 

fact, with the benefit of hindsight, the December 8th testimony produced little useful and no 

dramatic or significant additional information and neither side points to or contends otherwise. 

Nevertheless, it is part of the record. Accordingly, for the Day 1 testimony, only the second 

transcription effort, which was derived from the second audio recording copy from that day, and 

which consists of 219 pages should be considered, together with the December 8, 2016 

testimony. 

39 FMSHRC Page 1034
for violating the company’s policy forbidding, in most circumstances, the use of personal 

“electronic telecommunication devices” (“ETDs”) while on the job. At least as applied in this 

case, in practical terms an ETD means a cell phone. Thus, whether the Complainant actually was 

using a cell phone on December 1, 2015 is the central issue in this case. 

Ramsey contends that on his final day of work with Vulcan, he used an iPod to play 

music. Vulcan stipulated that an iPod cannot be used to “talk” with another as one can with a cell 

phone. Even assuming for the sake of argument that Ramsey was using a cell phone while on the 

job on December 1, 2015, it is interesting to note that both Austin and Bush conceded that such 

conduct on that date was not dangerous. Tr. 166, 207, 268. Although Vulcan introduced evidence 

which it believed showed that Ramsey was using an unauthorized cell phone that day, rather than 

an iPod, it presented no credible evidence that Ramsey actually used any such cell phone-type 

device to communicate with anyone in or outside the mine while he was on the job on December 

1, 2015. With the basis for firing Ramsey not established, Vulcan’s case collapsed. In contrast, 

the credible evidence shows that Ramsey made numerous safety complaints, that he invoked 

various rights under the Mine Act, and that Vulcan’s response to those actions was to fire him. 

Complainant’s Evidence 

Protected Activity 

Jerry Ramsey worked for Vulcan Construction Materials as an equipment operator from 

2013-2015, primarily driving a haul truck. His direct supervisor was Keith Austin. During the 

course of his employment, Ramsey made several safety complaints to Austin regarding issues 

such as a faulty parking brake on a truck, leaking calipers, a leaking belt, a truck bed slamming 

down,3

 and an incident that occurred around the winter of 2014 when Ramsey’s sweatshirt 

became ensnared in a moving machine while he was trying to clear blockage in a crusher.4 Tr. 

33-39. Each of these safety complaints constituted protected activity. 

 Ramsey engaged in other types of protected activity as well. As described below, he was 

questioned repeatedly about a “lock and key” incident. In connection with that, Ramsey was 

suspended for three days, purportedly for failing to cooperate in an “investigation” of that matter. 

He then filed a 105(c) discrimination complaint, one of his protected activity rights under the 

Mine Act, because of that lock and key incident. 

																																																													 3

 Austin preferred not to characterize Ramsey’s issues about his haul truck as safety 

complaints but rather that Ramsey “stated what he had problems with it at times.” Tr. 163. The 

Court finds that Austin’s attempt to dress up Ramsey’s issues with his haul truck as “problems,” 

not safety complaints, was not credible. 

4

 Ramsey later clarified that the incident when he reported his sweatshirt becoming 

caught in a machine part occurred in 2014. Tr. 128. There is no dispute that this event occurred. 

Austin admitted that one of the things Ramsey complained about was almost being hit with a 

sway bar while he was cleaning out the jaw pressure. [sic] Tr. 162. It appears that the correct 

intended term is a jaw crusher. Tr. 36. 

39 FMSHRC Page 1035
Later, in November 2015, Ramsey indicated to MSHA Inspector Mike LaRue that he was 

interested in becoming a miners’ representative, and the two exchanged e-mails on the subject. 

Tr. 72-74. His interest in becoming a miners’ representative was motivated because he was “tired 

of not being listened to” by Vulcan management. Tr. 72. An email from Ramsey to LaRue sent 

November 30, 2015 demonstrates his interest. Tr. 74; Gov. Ex. S 9. Although Ramsey sent 

paperwork to MSHA to apply as a miners’ representative, the application was incomplete, as his 

submission was missing the mine’s identification number. Tr. 74-75. Among other things, 

Ramsey inquired of MSHA if he would have to tell his foreman, Austin, about his application. 

Ex. S-9. 

 On the morning of December 1, 2015, Ramsey engaged in protected activity when he 

asked Austin for the mine’s ID number so that he could submit his MSHA representative papers. 

Tr. 75-76. Austin did not respond to Ramsey’s inquiry. Tr. 76. 

Ramsey’s job performance at Vulcan 

 For the year 2014, Vulcan gave Ramsey a “satisfactory” performance review. Tr. 31; 

Gov. Ex. S 6. Ramsey signed the review on March 2, 2015. The only suggestion for 

improvement that management noted was for him to show up slightly earlier for work, that is to 

say, before his shift began. There was no claim that Ramsey had been arriving late, nor was he 

being asked to clock in earlier. Tr. 31-32. Ramsey testified that he found the suggestion 

confusing, and did not understand why he was being asked to do this. Id. For his part, Austin 

admitted in his testimony that it was not a violation of company policy to show up when one’s 

shift begins, that Ramsey is paid hourly, beginning when he clocks in, and that no one is required 

to show up before they clock in, nor to work off the clock. Tr. 156-57. 

Events preceding Ramsey’s firing 

 Several incidents involving Vulcan and Ramsey were raised during the hearing: a lock 

and key incident; a September 2015 cell call by Ramsey to his mother; and Ramsey’s alleged use 

of a cell phone on December 1, 2015. Each is discussed in turn, but the most critical event for 

this decision pertains to December 1, 2015, because it was Ramsey’s alleged behavior on that 

day that was the basis for Vulcan’s decision to terminate his employment. 

The July 2014 Lock and Key incident 

The parties spent much time on this matter. While it did not form the basis for Vulcan’s 

firing Ramsey, it is important to understand the event because it reveals Vulcan’s attitude toward 

Ramsey and it is instructive in setting the stage for its decision to fire him. Though the record 

testimony about the incident made it appear complicated, it can be simply explained. 

 In July 2015, Ramsey was working in the mine’s NCC building and, while performing 

tasks there, he admitted losing the key for a lock to a breaker on C12 in that building. Tr. 41-43. 

Ramsey failed to report the lost key to management. Although he offered explanations for the 

reporting lapse, that did not change the fact that he failed to report losing the key. 

39 FMSHRC Page 1036
 As it happened, about a month after losing the key, Sherrod and Austin, both part of 

Vulcan’s management, came upon a mismatched lock and key. Thus, while there was a key 

found in a lock, it was the wrong key, and it would not open that lock. Sherrod and Austin 

learned that Ramsey had lost a key for a lock and they interviewed him about that, inquiring if 

the lock and key mismatch they discovered involved the key that Ramsey lost. Ramsey told them 

that the mismatched lock and key did not involve the lock for which he lost a key. This assertion 

by Ramsey was supported, because the mismatched lock and key did not have Ramsey’s tag on 

it. Instead, the tag for the mismatched lock and key belonged to another employee.5

 Tr. 41-46. 

 Having interviewed Ramsey about the mismatched lock and key and with Ramsey 

admitting that he had lost a key, but that it was unrelated to the lock and key mismatch, that 

should have been the end of the matter. However, about 30 minutes after the first interview, 

Sherrod and Austin interviewed Ramsey a second time, again about the same matter, asking the 

same questions of him and with Ramsey providing the same answers. Tr. 45-46. At the end of his 

work that day Ramsey, having clocked out, went to the mine office and asked Sherrod and 

Austin for the “miner’s rights number and VP [Vulcan’s vice president’s telephone] number.” 

Tr. 47. Ramsey explained that he asked for this information because he “was tired of being 

interviewed .... [and] didn’t want to take the blame for somebody that wasn’t [his] fault.”6 Tr. 

48. 

 Matters involving the mismatched lock and key did not end after the second interview of 

Ramsey. Instead Ramsey was interviewed for a third time on July 27, 2015. Upon review of the 

record, at the point of the third interview, the Court has concluded that calling the further 

questioning of Ramsey on the same issue an “interview” would be inaccurate and that 

interrogation and harassment are more accurate characterizations of Austin’s and Sherrod’s 

																																																													 5

 The other employee was identified only as “Charlie” but, of greater importance, there is 

no evidence to contradict Ramsey’s claim that he had nothing to do with the mismatched lock 

and key incident. Tr. 44-45. Thus, Ramsey’s only failing was losing his key for the C12 breaker. 

6

 Following the office visit that day, Ramsey sent a text message to Austin, informing 

that the numbers he was given were not correct for either issue. Tr. 50-51. Ramsey’s text to 

Austin, sent July 24 and 28, 2015, stated: “That was not the correct num for the miners right 

people nor was it the num for our vp. It’s nothing against u but I won’t put up with being talked 

down to as a lier [sic] and I know I may lose this battle but it might make it better for the next 

person and I’m good with that but I think it’s a law u have to give me the correct num to the 

miners right .. The good things about iPhones it shows when a message has been sent and read. 

That’s the reason I sent it as a text instead as a phone call.” Gov. Ex. S 20. Austin disputed 

Ramsey’s account and replied with his own text, stating “If you remember I didn’t give you 

either of those numbers. I don’t have the vp number and you said you had the miners number. 

The vp number came from the safety director. It wasn’t that I didn’t want you to have em but you 

said you had what you needed when you left.” Gov. Ex. S 20. The Court would comment that, 

apart from the disputed accounts between Austin and Ramsey, the exchange shows that matters 

had heated up between the two. 

39 FMSHRC Page 1037
behavior. Understandably and appropriately, in the Court’s view, Ramsey, using his iPod,7

recorded the third interrogation. Tr. 52, 113. The recording was made part of the record evidence 

in this case. Sherrod played the major role in questioning Ramsey. Although he objected to 

Ramsey recording the third interrogation and advised in the recording that he knew the law and 

that such a recording couldn’t be used in court, Ramsey, unintimidated, still recorded the 

questioning and the recording was made a part of the record, notwithstanding Sherrod’s asserted 

knowledge of the law. Gov. Ex. S 8. 

 The Court heard the recording at the hearing and listened to it again, post-hearing, in 

deciding this case. The recording, as noted, was made on July 27th, as there were references in it 

to the second interview, the previous Friday. It would have to be said that, while there were a 

few moments when Ramsey lost his composure, overall he was polite and civil.8 As Sherrod 

continued to ask the same questions, now in the context of the third interview concerning the 

same lock and key matter, Ramsey, understandably exasperated, told them he had enough and 

did not want to continue the never-ending questioning. Revealing, in the Court’s estimation, that 

Sherrod’s design was to get under Ramsey’s skin, he then remarked to Ramsey that he “could 

pinpoint some things right now that [he] kn[e]w about but [he was] keeping to himself.” Ex. S-8. 

Ramsey, not cowed by the vague claim, invited him to make those things known. Sherrod did not 

back up his claims. As noted, while Ramsey did swear, in the Court’s view, having heard the 

entire recording, and placing Ramsey’s expressions in context, it is found that his swearing was 

out of exasperation.9

 It should also be noted that, if the swearing was considered aggressive, the 

recording reveals that the aggression was bilateral – Sherrod had his finger in Ramsey’s face, as 

Sherrod acknowledged on the recording, but he felt that was okay, as he told Ramsey that his 

“finger wasn’t doing anything to [him].” Ex. S-8. The Court would agree, just as Ramsey’s 

																																																													 7

 As Austin later admitted in his testimony about the lock and key incident, just as he 

believed that Ramsey was using his cell phone on December 1, 2015, he also believed that 

Ramsey was using his cell phone when he recorded the third interview. Tr. 153. As Austin put it, 

“[t]hat’s what I thought.” Id. Both beliefs were erroneous – Ramsey was using his iPod to record 

the third interview. 

8

Ramsey denied that he slammed open the door upon entering the mine office. Instead, he 

stated that Austin opened the door for him and that he, Ramsey, stood in the doorway the whole 

time. Tr. 113, 117. Ramsey admitted that he made some sarcastic and unprofessional remarks, 

including a few swear words to Sherrod, who was the chief interrogator about the lock and key 

matter. Tr. 111-13. Ramsey acknowledged that he was very frustrated and that he raised his 

voice, because he didn’t appreciate that management kept questioning him about the same 

matter. The suspension letter Ramsey was given after that incident stated that he violated 

company policies regarding “complying in the company investigation” and for engaging in 

“abusive and harassing conduct.” Tr. 108. Ramsey did not agree with these claims, but signed 

the suspension letter so that he could return to work. Tr. 112. 

9

 The Court will presume that the soft swears that Ramsey uttered were not new terms to 

the ears of Sherrod or Austin. In fact, Austin admitted that cursing is not a violation of company 

policy. Tr. 154. 

39 FMSHRC Page 1038
occasional swears were not doing anything to Sherrod. Ramsey, worn from the harangue, 

expressed that he had told the truth and he couldn’t keep providing the same answers. Sherrod 

agreed that this interview was the third time they had gone over the same matters, but showing 

his intention was not about honestly seeking Ramsey’s answers, provocatively told Ramsey that 

his answers were a “fairy tale.” Gov. Ex. S 8. 

The Court concludes that the third investigation, this one lasting nearly 17 minutes, really 

was more in the nature of interrogation and harassment, that it was repetitive, totally 

disproportionate to the subject, excessively prolonged, and not designed to elicit new facts. It is 

of note that Sherrod did not testify in the proceeding before this Court. 

Ramsey was suspended without pay for three days in connection with the event, 

ostensibly because he impeded the lock and key “investigation.”10 Tr. 59. In any event, Ramsey 

was not disciplined for the lock and key incident, at least not for losing the key, but rather “[f]or 

not cooperating during the investigation.” Tr. 56-57. After the third interview on the subject, 

Ramsey was sent home and was not allowed to return to work until serving the three-day 

suspension. Tr. 56. Ramsey was given a memo titled “Final Warning and Disciplinary 

Suspension” and dated July 30, 2015. Gov. Ex. S 4. It was issued by Keith Austin and it relates 

that it pertained to July 27-28. The memo asserts that Ramsey engaged in “abusive and harassing 

conduct” in violation of Vulcan’s policy “regarding compliance and cooperation during a 

Company investigation.” Id. As noted above, the memo focused upon Austin’s and Sherrod’s 

“investigation” into “a lockout/tagout situation” about which they interviewed Ramsey multiple 

times. The memo asserts that Ramsey gave silly, argumentative and disrespectful answers and 

that, as their investigation continued, Ramsey’s “uncooperative nature escalated including the 

use of profanity toward [Sherrod].” Id. The memo then continued that Ramsey’s comments 

“could be interpreted as threatening” and that the investigation stopped due to Ramsey’s “erratic 

behavior.” Id. Not finished, after receiving the disciplinary suspension letter, Ramsey was 

																																																													 10 There was an interesting epilogue, as it were, to the lock and key incident, as Ramsey 

eventually did find a lock on Vulcan’s property. As he related the discovery, “We were doing 

work inside the plant and as we were downstairs -- everybody was getting their locks out-- I got -

- just had to – turned to look and it was a red lock with my tag on it.” Tr. 61. Upon discovering 

the lock, Ramsey stated that he left it hanging for a few days until somebody could come from 

the office so he could show it to them. When that did not occur, Ramsey decided to take the lock 

to the office. Upon presenting the lock at the office, he asked if that changed anything, but it had 

no impact on the discipline that had been imposed on him. Tr. 62. The Court inquired of Ramsey 

what he thought finding the lock demonstrated from his side of the issue. Ramsey responded, “I 

lost a lock that was on a breaker, I lost the key to it, the only way to get that lock off would have 

been to cut it, and that lock [had] been cut, it was still hanging on there, I didn't cut it.” Tr. 62. 

There was a tag on the cut lock, with Ramsey’s name on it. Tr. 62. Ramsey left his lock on C12, 

yet the lock he was being questioned about was on breaker C8. Tr. 62-63. Vulcan never did an 

investigation into who cut the lock. Tr. 63, 154. 

39 FMSHRC Page 1039
interviewed yet again by Sherrod, with that session, now the fourth, lasting about 40 minutes.11

Tr. 58; Gov. Ex. S 4. 

Thus, to be clear, Ramsey was never disciplined for violating Vulcan’s lock and key 

policy, and the key that was found in the incorrect lock was not assigned to Ramsey. Tr. 45, 48. 

It is noteworthy that, despite the four grillings regarding the lock and key incident, aside from 

Ramsey’s three-day suspension for allegedly failing to cooperate in the investigation, no other 

employee was ever disciplined for the incident. Tr. 153. 

Austin’s account of the July 24, 2015 incident, when Ramsey came to the mine office, 

presented a picture that Ramsey was riled up, wanted the miners’ rights and vice president’s 

numbers and that things were “pretty tense for a period of time.” Tr. 175. Ramsey, he said, 

entered the office on his own but he could not recall if the door was open or closed before he 

entered. Id. Asserting that Ramsey cursed, Austin stated that neither he nor Sherrod cursed at 

Ramsey and that they were professional in their behavior towards him. Tr. 175-76. Austin also 

asserted that when Ramsey became aware that others were listening to the office meeting, via the 

mine office telephone, Ramsey’s behavior calmed down. Tr. 178. Austin maintained that when 

Ramsey asked for the miners’ rights number, he did not understand what Ramsey meant by that 

request. Tr. 178. 

Following the lock and key incident and being subjected to the multiple interrogation 

sessions, Ramsey filed a 105(c) claim, naming Austin and Sherrod as the sources of 

discrimination against him. Tr. 63, 215. MSHA investigator Mike LaRue was assigned that first 

discrimination claim. During September 2015, while collecting evidence and investigating 

Ramsey’s first 105(c) discrimination complaint against Vulcan, LaRue met with Ramsey. Tr. 

214. During that investigation, although LaRue determined there was a prima facie case, worthy 

of further inquiry, MSHA did not file an action against Vulcan. Tr. 215. 

Ramsey’s September 2015 cell phone call to his mother 

Ramsey was asked about a September 2015 incident when he called his mother from the 

mine using his cell phone. According to Ramsey, the mine called him on the truck’s CB radio 

and told him there was a call from his mother, which was described as urgent. Ramsey then 

pulled off the side of the haul road and called his mother. Tr. 65. After Ramsey called his 

mother, Austin told him that cell phones were to remain in the employee’s personal vehicle. Tr. 

66. Ramsey stated no issue arose out of that incident. The next day there was a safety meeting 

held by Austin, informing miners they were to leave their phones in their personal vehicles, and 

																																																													 11 Ramsey asserted that no one from “HR” (Human Resources) asked him for his side of 

the story about the incident. Tr. 57. 

39 FMSHRC Page 1040
Ramsey stated that thereafter he followed the change to the rule.12 Tr. 65-66. At least according 

to Ramsey’s account, it would appear that, per that meeting, Vulcan clarified its cell phone 

policy so that, not only was use of a cell phone prohibited but having a cell phone in company 

vehicles was not allowed either. Gov. Ex. S 1 is Vulcan’s policy regarding cell phones.13 Ramsey 

stated that, from Gov. Ex. S 2, he saw page 183 from the mine’s handbook, posted in the 

breakroom. Tr. 69. Ramsey, referring to those exhibits, observed that neither speaks to the use of 

iPods. Tr. 71. 

With Vulcan’s policy prohibiting the use of “electronic telecommunication devices,” 

(“ETDs”) and after the clarification that cell phones were not even to be in mine vehicles, 

Ramsey began leaving his cell phone in his personal vehicle while on the job. Tr. 67; Ex. S-1.14

Ramsey testified that his understanding of the policy was that the term “electronic 

communication device” meant that he was not to use his cell phone. Tr. 92. In noting this 

incident, it is important to recall that Ramsey’s September 2015 cell call to his mother was not 

the basis for firing him – Ramsey was fired for using his cell phone on December 1, 2015. 

Austin’s understanding of the event, which varied from Ramsey’s account, was that 

Ramsey had been talking with his mother on his cell phone, that the connection was lost and that 

his mother then called the mine office asking that Ramsey call her back. Tr. 171. Ramsey was 

contacted on the haul truck’s CB radio, told to call his mother and he then stopped hauling and 

called his mother using his cell phone. Austin then later spoke with Ramsey about the call, but 

																																																													 12 Thus Ramsey admitted that in September 2015 he used his cell phone at the mine site 

without prior permission from his manager, when he called his mother about a family issue. Tr. 

100-01. As noted above, Ramsey did not feel that he had violated company policy, because he 

had been informed at the safety meeting that employees should not be operating any equipment 

while using a phone, and when he made the call in September he was not operating any 

equipment. Tr. 101. He recalled that the day after the call to his mother, there was a meeting 

instructing employees to leave their phones in their personal vehicles. Id. 

13 Ramsey also received a copy of Vulcan’s employee handbook in October 2013, 

although he testified that he was not working on the day that there was a training session 

addressing changes that appeared in the handbook. Tr. 98-99, ref. Ex. R-183. When Ramsey was 

questioned further, he admitted that, according to the policy in the handbook, he should not have 

had his cell phone in a work area in September 2015, and that he would only have been allowed 

to carry it with the express permission of a supervisor, which he did not have. Tr. 103-04. 

However, Ramsey contended that he discussed a family situation — his father being ill — with 

an assistant manager he identified only as “Scooter,” and suggested that if it was a problem to 

have his cell phone on him during work he could take the day off, but “Scooter” said it wasn’t a 

problem. Tr. 104. Austin later warned Ramsey about the ETD device policy in October 2013. Tr. 

103. 

14 Ramsey testified that there was no mention of iPods or other kinds of MP3 players 

during this training. Tr. 67. This assertion was not contradicted by testimony from the 

Respondent’s witnesses. 

39 FMSHRC Page 1041
Austin challenged the truthfulness of Ramsey’s account, asserting that Ramsey had called his 

mother first. Tr. 172. Austin stated that he told someone in safety about the event, but couldn’t 

recall with whom he spoke. Id. He did not report the incident to HR. The incident occurred after 

Ramsey had filed his first 105(c) complaint, which named Austin as a person who discriminated 

against him. Id. Austin offered that no action was taken against Ramsey because his first 105(c) 

complaint was being investigated, so “it was decided to pass.” Tr. 173. 

MSHA inspector LaRue was aware of the incident in September 2015 when Ramsey used 

his cell phone to speak with his mother while at the mine, and was aware that the mine took no 

disciplinary action, ostensibly because of MSHA’s ongoing 105(c) investigation of Ramsey’s 

first discrimination complaint. Tr. 223-24. LaRue testified that Bill Duran, counsel to the 

Respondent, made the decision that there would be no discipline for that September cell phone 

incident. Tr. 227. 

The Events of December 1, 2015 

After Ramsey’s December 1, 2015 protected activity, seeking information to enable his 

filing as a miners’ representative, as described above, he then clocked in and went to work 

driving the mine’s haul truck. He was using his iPod that day. Tr. 76. He used his iPod to listen 

to music when the truck’s radio reception was poor. Tr. 76-77. Ramsey’s iPod does not have 

cellular service, meaning one cannot use the device to make phone calls or send text messages. 

While that is sufficient to establish that this device cannot function as a cell phone, in addition, to 

Ramsey’s knowledge, there is no Wi-Fi at the mine. Tr. 77, 88.15 

Following Ramsey’s request to Austin for the information he needed to file his miners’ 

representative papers, he next saw Austin that morning standing above him on the high wall, 

looking down at him as he was operating his haul truck below. Tr. 77. Ramsey was alerted to 

Austin’s surveillance from above, because he heard some rocks rolling down and wanted to see 

where that sound was coming from. Id. It was then that he observed Austin above him, close to 

edge of the high wall, only 3 or 4 feet away from its edge. Tr. 78. Austin watched Ramsey from 

above as he completed his haul truck cycle, which consisted of driving the truck to the loading 

point, loading, and then driving to the dumping location, a process involving a total of about 10 

minutes per cycle. Tr. 79. Austin himself would later testify that he was about 50 feet away from 

Ramsey, when peering down on him as Ramsey was operating his haul truck. Tr. 137. The Court 

would comment that this whole situation bordered on weird behavior on Austin’s part, 

surveilling his employee from atop the high wall. And of course it is noteworthy that this 

behavior occurred in the context of Ramsey having requested information that morning from 

Austin so that he could file an application with MSHA to become a miners’ representative. 

In any event, Ramsey next saw Austin when he, Ramsey, was pulling into the shop to use 

the restroom. Tr. 79. At that time Austin told Ramsey to give him his (i.e. Ramsey’s) cell phone. 

Ramsey responded that he didn’t have a cell phone. He told Austin he had an iPod. Tr. 79-80. 

Austin persisted, asserting that he saw Ramsey on his cell phone. Tr. 80. Ramsey responded, 

																																																													 15 These points are uncontested by the Respondent and Austin admitted that there is no 

Wi-Fi signal at the Bristol Quarry. Tr. 145. 

39 FMSHRC Page 1042
“my cell phone is over in my truck, let’s go get it.” Id. Asked how many cell phones he has, 

Ramsey responded “one.” Id. Austin then telephoned someone, telling the person on the line that 

Ramsey refused to give him Ramsey’s cell phone. Id. Next, Austin used his work truck to take 

Ramsey to the mine office, where they waited for Mr. Bush to arrive. Id. When Bush arrived, 

Austin and Bush told Ramsey to hand over his cell phone. Again Ramsey told them his cell 

phone was in his pickup truck, repeating this “20, 30 times, and [I] offered them my keys so they 

could go by themselves to get it.” Tr. 81. Ramsey was then taken to his pickup truck by Austin 

and Bush and was advised that he was suspended until further notice. Tr. 82. Very oddly, neither 

Austin nor Bush used the clear opportunity to search the haul truck Ramsey was using, nor to 

search Ramsey’s pickup truck, though they were all at the pickup truck. Id. Ramsey then 

identified his cell phone records. Gov. Ex. S 10. Those records show that on December 1, 2015, 

Ramsey’s first call that day occurred at 9:47 a.m., which was at a time before he clocked in that 

day, and the next call was at 1:37 p.m. that afternoon, after he was suspended. Tr. 84-85. 

Not surprisingly, Vulcan objected to the introduction of Ramsey’s cell phone records, but 

not because they challenged their authenticity or accuracy, but rather because it was “not 

evidence that was provided to Mr. Austin, Mr. Bush or others with the company at the point in 

time they're making the decision [to terminate Ramsey].” Tr. 83. This was part of Vulcan’s 

unusual defense that, though the facts completely refuted Vulcan’s claim, it was Austin’s belief

that Ramsey used his cell phone that day. Id. Though the records could not have been made 

available at the time that Austin claimed Ramsey was using his cell phone, nor when the decision 

was made to fire him, apparently Ramsey should have provided the unavailable information at 

the time the decision was made to fire him. And, of course, Vulcan felt no obligation to revisit its 

beliefs once the exculpating phone records were later disclosed to it. Thus, though disabused of 

its ill-founded beliefs, Vulcan’s stance remained unchanged. In the Court’s view, there is only 

one rational reason to explain its intransigence — Vulcan was determined to rid itself of Ramsey 

because of his multiple invocations of his safety and health rights under the Mine Act. 

 When Vulcan next contacted Ramsey, he was asked to attend a meeting with Austin and 

a representative from Human Resources. Tr. 90. This occurred on December 4, 2015. Vulcan did 

not ask Ramsey to share his account of what had happened with the alleged cell phone use 

incident and his employment was terminated during that meeting. Tr. 91-92. Although Ramsey 

received his termination at that meeting, he testified that he did not understand why he was being 

fired at the time. Id.; Ex. S-7. Ramsey filed the instant discrimination complaint with MSHA 

shortly afterwards, and has not returned to work at Vulcan since his termination. This Court 

ordered Ramsey’s temporary economic reinstatement on February 11, 2016.16

Ramsey does not dispute the Respondent’s contention that he had a device in his hand 

while he was sitting in the haul truck on December 1, 2015, as he admits this is shown in the 

photos and video that Austin took. Tr. 120. The more important question is what that device was, 

as Vulcan’s policy was directed against the use of cell phones, not against devices which only 

play music. Indeed, as the Vulcan trucks were equipped with AM/FM radios, Vulcan could 

hardly object to other music-playing devices. Austin admitted that employees were allowed to 

																																																													 16 See Docket No. SE 2016-0107-DM. 

39 FMSHRC Page 1043
listen to the radio in their trucks. Tr. 191. When Ramsey spoke with management that day, he 

told them that his iPod was in his lunch box in the haul truck. Tr. 125-26. He did not act to 

retrieve the iPod to show it to Bush or to management, although he admitted that he could have 

done that. Tr. 123-24. However, to place that decision in perspective, as was pointed out during 

Ramsey’s testimony on re-direct, no one asked him to see his lunchbox. Tr. 127. 

Testimony of Keith Austin 

 Keith Austin works for Vulcan as a plant manager and he was Ramsey’s direct 

supervisor. Tr. 129-30. He testified that he gave Vulcan employees a talk on the mine’s ETD 

policy, and that Ramsey signed a sheet acknowledging that he was present for the talk. Tr. 133. 

Important to understanding Vulcan’s policies is Gov. Ex. S 1, dated September 1, 2006, which is 

titled “Midsouth Division Policy” and which lists the policy’s topic of “Use of Cellular Phones” 

immediately below that heading. Tr. 131. Austin admitted that there is no company policy that 

specifically mentions iPods, and that he never told Ramsey or any other employee that iPods 

violate the company’s policy on ETDs. Tr. 131. The policy lists a number of devices as examples 

of ETDs, but the list does not include iPods. Ex. S-2; see also Tr. 133-34. On September 28, 

2015, Austin held a “Toolbox” meeting with six employees, including Ramsey, present. Austin 

reviewed the cell phone policy, which was that no one was to have cell phones during work 

hours. Gov. Ex. S 3. 

 Beginning in May 2015, Austin took notes concerning Ramsey. Tr. 156; Ex. S-5. He 

wrote the notes around the time that he observed certain events, such as Ramsey not returning 

phone calls while on leave covered by the Family Medical Leave Act (FMLA). Tr. 158-59. 

However, Austin did not know whether employees are required, under the FMLA, to check in 

with an employer while on such leave. Tr. 159. Although Austin testified that there were 

complaints from other employees concerning Ramsey, his notes do not reference any complaints 

about Ramsey using an ETD prior to his suspension. Tr. 160-61. Nor did Austin tell anybody, 

not even his own supervisor, about the claim that there were complaints from employees about 

Ramsey using his cell phone. Tr. 161. 

 Austin recalled Ramsey making safety complaints during his employment with Vulcan 

— these included a “near miss,” following which Austin failed to fill out a “near miss” form. Tr. 

162-63. The only potentially critical comment on Ramsey’s performance review, prior to his 

termination, was that he did not show up before his shift was supposed to begin. Tr. 157. This 

was not a violation of company policy, because Ramsey is an hourly employee. Id. 

Austin’s testimony regarding the lock and key incident 

Austin was present at all of the “interviews” management conducted with Ramsey about 

what was described as the “lock and key” incident, and he admitted that Ramsey did not change 

any of his answers between interviews. Tr. 146. Austin also admitted that Ramsey asked for the 

company’s vice president’s telephone number, stating that Ramsey asked for this “on, 

[interviews] two and three.” Tr. 146. Although Austin is aware that MSHA enforces miners’ 

rights, he claimed that he did not understand what Ramsey meant when he was asking for the 

“miners’ rights number.” Tr. 147. At the hearing, Austin claimed he did not recall whether he 

39 FMSHRC Page 1044
had heard of miners’ rights being referred to in any other context than MSHA enforcement — 

this contradicted his deposition testimony, in which he admitted that he had never heard of the 

term “miners’ rights in any other context than MSHA. Tr. 147-48. 

According to Austin, HR employees Jones and Barrett made the decision to suspend 

Ramsey over the lock and key incident, yet Austin was involved in preparing the suspension 

letter.17 Tr. 148, Gov. Ex. S 4. Austin acknowledged that the suspension letter refers only to 

Ramsey’s alleged conduct on July 27, 2015. Tr. 151. While the alleged intemperate behavior by 

Ramsey occurred during the first two interviews, both of which occurred on July 24th, Austin 

admitted that the suspension letter, the letter which had Austin’s signature on it, did not mention 

the alleged agitated and violent behavior by Ramsey, while simultaneously claiming “it should 

have been in [the suspension letter].” Tr. 151. In the face of that claim, Austin admitted that 

Ramsey is not a “physically intimidating guy,” and Austin did not recall Ramsey ever acting 

violently towards anyone at work. Tr. 152. Further, Austin admitted that Ramsey never refused 

to answer any questions during any time he interviewed him about the lock and key incident. Id. 

Austin’s testimony regarding the alleged December 1, 2015 cell phone use incident 

As a manager, Austin has the power to decide when he should involve the corporate 

office in an issue. Tr. 135-36. On December 1, 2015 he decided to call Huffman, Vulcan’s Safety 

Director, because he believed Ramsey was using a cell phone while working, in violation of the 

mine’s ETD policy. Id. When Austin was watching Ramsey, ostensibly using a cell phone while 

operating his haul truck, he was about 50 feet away18 from Ramsey and looking down at an 

angle. Tr. 137, 183. Although Austin testified that he believed that what Ramsey was allegedly 

doing presented a safety hazard, he did not contact Ramsey on the CB radio or take any other 

action to stop the alleged dangerous activity.19 Tr. 139. Rather, Austin waited until Ramsey went 

																																																													 17 Austin testified that there was never a “conclusion” to the lock and key incident. Tr. 

154. It was the lock and key incident interrogations which led to Ramsey filing his earlier 

discrimination complaint. Tr. 149. That earlier-filed complaint is not the subject of this matter. It 

is mentioned here for context and because it was brought up during the testimony in this case. 

18 The Court takes note that looking at a device as small as a cell phone or an iPod from a 

distance of 50 feet is a significant distance. The Court takes judicial notice that, across their 

various generations, iPods are not larger than 5 inches by 2.5 inches. The smart phone video 

Austin took only serves to confirm that one cannot tell the nature of the device Ramsey 

had on that day, December 1, 2015. Tr. 186. It is also noteworthy that in Austin’s ten years of 

working at Vulcan’s Bristol Quarry, this was the only time he ever took a video of a truck driver 

at that mine. Tr. 188. 

19 Also of note, there is no allegation by Vulcan that Ramsey ever used any sort of device 

while the haul truck was in motion. Tr. 139. Vulcan’s evidence in support of their basis for the 

termination contained no reference to Ramsey endangering himself or others by driving while 

distracted. 

39 FMSHRC Page 1045
on a bathroom break to stop him and then accused him of using a cell phone. Tr. 140. Austin 

admitted that Ramsey immediately told him that it wasn’t a cell phone, but rather an iPod. Id. 

Austin’s testified at the hearing that he believed Ramsey using an iPod “was a distraction 

and it was.” Tr. 141. This contradicted his testimony at deposition, only two weeks earlier, at 

which time he stated that he had not formed an opinion on whether iPods violated company 

policy. Tr. 141-42. Importantly, Austin’s evaluation of Ramsey’s behavior was based solely on 

his belief that Ramsey was using a cell phone; iPod use was not part of his thoughts. In any 

event, Austin, disbelieving Ramsey’s assertion that he was not using a cell phone, proceeded to 

contact HR. Tr. 143. Although company policy would have allowed Austin to look inside the 

haul truck Ramsey had been operating, both he and Danny Bush (manager for the Norton quarry) 

chose not to look inside. Tr. 143-44. This joint decision not to confirm Austin’s suspicion was 

especially odd, as looking in the haul truck would have confirmed or refuted Austin’s claim. Tr. 

145. Austin also affirmed that he had never heard of anyone being disciplined for using an iPod. 

Tr. 145-46. 

Despite the testimony, as recounted above, in Austin’s opinion, there is no danger in a 

miner having a cell phone with them at work so long as they act responsibly.20 Tr. 166. In fact, 

he acknowledged that there are situations where a cell phone might be needed in an emergency, 

such as if there is a problem with the truck’s CB radio. Austin himself carries a cell phone when 

he is at the mine site, adding that it is the fastest way to reach him in an emergency. Tr. 167. 

 On cross examination,21 Austin claimed that his decision to take notes on Ramsey was 

not related to Ramsey’s making safety complaints. Tr. 195. Furthermore, Austin testified that 

Ramsey admitted using his cell phone to speak with his mother during a family emergency prior

to December 2015. Tr. 168. This matter has been discussed above. As Austin told the event, in 

September 2015 Ramsey’s mother called the mine office and told the clerk that she had been 

talking with Ramsey on the phone and that the call then disconnected, and that she needed 

Ramsey to call her back. Tr. 171. Austin apparently heard about this conversation secondhand, 

through an unnamed clerk, who did not testify. Id. Austin recounted, 

I told her just get him [Ramsey] on the radio, the shop, to call his mother and he 

stopped hauling and sat there for a few minutes... When I talked to him about it, 

he said that he... called her on the haul road... And I said that you were on it 

																																																													 20 It is noted that it was not easy to get Austin to admit that cell phone use was not 

inherently dangerous. At the hearing he initially responded that there was danger with someone 

having a cell phone on the mine site. Tr. 166. Then, directed to his deposition only a few weeks 

earlier, he admitted that at that time he stated it was not dangerous “if they're responsible and use 

it the way they're supposed to.” Id.

 

21 Technically, because Vulcan employee and manager Austin was first called by the 

Secretary of Labor, he was under “cross-examination” when questioned by Vulcan’s attorney. 

Therefore, labels aside, the questioning by the Respondent was from a friendly, not adversarial, 

source. 

39 FMSHRC Page 1046
before that because your mother had called and said that you had been on with 

her. He said okay. 

Tr. 171. 

Austin reported these events to Huffman or John Sherrod, or possibly both. Tr. 172. He 

gave Ramsey a verbal warning to use the office phone for situations like this in the future, but 

there was no formal discipline against Ramsey over this incident. Tr. 171-72. Although Austin 

felt there had been a violation of company policy, he believed there was no discipline imposed 

because “we were in the middle of an ongoing investigation at the time.” Tr. 173. That ongoing 

investigation involved Ramsey’s first discrimination complaint. 

Returning to events prior to the alleged December 1st “cell phone incident,” Austin stated 

that he believed Ramsey had a cell phone because he had heard from other employees that 

Ramsey had been using a cell phone while on the job. Id. The two employees who complained to 

Austin about Ramsey were Glen Lunsford and Tom Leonard, both hourly employees. Austin 

asserted that the two employees complained separately and on multiple occasions about 

Ramsey’s alleged cell phone use. Tr. 169. However, Austin did not discipline Ramsey based on 

these complaints of cell phone use because “it wouldn’t have been fair. I didn’t see it — didn’t 

see it with my [own] eyes.” Tr. 170.22

Austin testified that he did not recall Ramsey asking him for a mine ID number or saying 

anything about miners’ representatives when clocking in on December 1st and he could not 

recall if he saw Ramsey clocking in that day. Tr. 192. 

As for the central event, and Austin’s claimed eyewitness observation of Ramsey’s using 

a cell phone, Austin stated that his conclusions were based upon his direct observations which 

were, in his view, also supported by the photos and video he took of Ramsey in the haul truck. 

Tr. 183, 190. Austin recounted that he saw Ramsey “scrolling up and he punched [the device] 

every now and then.” Tr. 183. However, Austin conceded that that one can also scroll on an MP3 

player as well as a cell phone. Tr. 190. Austin claimed he could zoom in on the video he took on 

his phone, and that also informed his judgment. Id. In the Court’s estimation, it is notable that 

during Austin’s 10 years of working at the mine, this was the first instance when he ever 

recorded video of an employee. Tr. 188. 

Austin told Ramsey during the December 1st interaction that, “if there was an iPod [ ] 

[he, Austin] wanted to see it.” Tr. 180. Austin is sure he made it clear that he wanted Ramsey to 

show him whatever he had been using in the haul truck. Id. At one point, Austin admitted, 

																																																													 22 There is certainly irony in Austin’s response, because his standard for taking action 

regarding cell phone use was to see it with his own eyes. Tr. 170. Yet, on December 1, 2015, 

Austin never actually saw Ramsey using a cell phone with his own eyes. He only believed he 

saw Ramsey using a cell phone, a view made some 50 feet away, and which view was never 

established by his smart phone video surveillance of Ramsey. That video only established that 

Ramsey had a device of some sort in his lap. 

39 FMSHRC Page 1047
Ramsey told him that the device was in his lunchbox. Id. Austin also recalled that when he told 

Ramsey, per the instructions from Huffman, that he could return to work if he put the iPod in his 

personal truck, Ramsey kept saying, “my cellphone is in my pickup truck, you can go look at it.” 

Tr. 181.23

Austin denied that the motivation for taking notes about Ramsey arose because of 

Ramsey’s previous safety complaints. Tr. 195. He also denied that he acted in any way to 

retaliate against Ramsey for asking for the MSHA phone number, for raising safety issues, or for 

filing an earlier 105(c) complaint. Tr. 179; 194-95. However, Austin admitted that Ramsey 

named him as the person who discriminated against him in that earlier complaint. Tr. 167. 

On re-direct, Austin admitted that he conducted no investigation of the alleged safety 

complaints about Ramsey from other employees.24 Tr. 200. Austin first began taking notes on 

Ramsey after he had been at Vulcan for over a year. Tr. 196. Curiously, while he took notes 

about Ramsey, he took no notes about the alleged complaints from other miners, nor did he 

discuss those complaints with Ramsey. Tr. 201. Austin said that even though there were 

complaints made about Ramsey habitually using his cell phone, he would not necessarily have 

been able to see such alleged frequent use. Id. Yet, he admitted that the one day he claimed to 

have seen Ramsey using his cell phone was the same day Ramsey asked for the mine ID number 

so that he could apply as a miners’ rep.25 Id. While Austin denied he was “upset” about being 

named in Ramsey’s previous 105(c) complaint, he admitted he did not like the MSHA inspector 

showing up at the mine after the complaint. Tr. 196-97. 

As noted earlier, while making his video-recording, allegedly showing Ramsey using his 

cell phone, Austin was standing above Ramsey, on an elevated area. He admitted this was a 

																																																													 23 In the Court’s view, Ramsey was wise to reject the suggestion that he, Ramsey, go to 

his pickup truck, retrieve his cell phone and then show it to Austin. This is because, with Austin 

rejecting the invitation to go to Ramsey’s truck and see the cell phone himself, Vulcan could 

easily claim that Ramsey had the cell phone with him the whole time. Ramsey’s credible 

testimony and his cell phone call records each clearly establish that he was not using his cell 

phone while on the job on December 1, 2015. 

24 On re-direct examination, Austin again denied hearing anything about a mine ID or 

becoming a miners’ rep. Tr. 202. Austin also asserted that he has taken notes on other employees 

at Vulcan, and believed that there was nothing improper with that practice. Id. When the Court 

asked Austin to clarify the sources and frequency of the employee complaints about Ramsey 

using a cell phone, Austin stated that he heard complaints about Ramsey from two or three 

employees, and that these were made a couple of times from each person over the course of a 

few months. Tr. 203-04. Despite his characterization that those reports described “highly 

dangerous” activity, he admitted that he took no affirmative steps to investigate or stop this 

conduct. Tr. 205-06. Last, Austin admitted that the specific behavior shown in the video he 

recorded was not, in itself, dangerous. Tr. 207. 

25 While there was an attempt to repair Austin’s admission, his testimony was clear on the 

issue. 

39 FMSHRC Page 1048
location where he does not usually go during the work day — in fact, Austin admitted he does 

not even go there on a weekly basis. Tr. 199. When the Secretary’s counsel asked, “the one day 

you did see [Ramsey using an electronic device] was the day Mr. Ramsey said he asked for the 

mine ID so he could fill out his miners’ rep papers; correct?” Austin acknowledged, “yes, it was 

that day.” Tr. 201. 

There were multiple instances when Austin’s credibility was brought into question. For 

example, near the end of his testimony the Court asked about Austin’s claim that on numerous 

occasions employees had told Austin that Ramsey had been inattentive while driving his haul 

truck. Inquiring further about this claim, the Court asked over what period of time the alleged 

complaints had been made to him. Tr. 203. Austin responded that it had been “a few months” 

and that “two to three” employees had made the complaints to him about Ramsey’s 

inattentiveness. Id. Austin claimed that these complaints had been made “at least a couple of 

times per person.” Tr. 204. Having heard, according to Austin’s own count, a minimum of six 

such complaints, he formed an opinion that this was “highly dangerous” activity. Tr. 205. When 

the Court then inquired, “yet [the Court’s] understanding is that despite having a minimum of six 

different reports, you [Austin] took no affirmative action, no steps, didn't write anything up, 

didn't speak to highers up, didn't speak to Mr. Ramsey ... you took none of those steps, despite 

having multiple reports of his being inattentive, a highly dangerous activity?” Tr. 205. Austin 

admitted he did nothing in the wake of all those reports. Tr. 206. 

After Vulcan completed calling its witnesses, Austin was recalled. After playing the 

video of Ramsey in his haul truck from December 1, 2015, Austin revisited the photos and video 

he took on that date. Tr. 431; R’s Ex. 52. Austin asserted that the images appeared more clearly 

on his phone than they did on the large screen display in the courtroom and that, with his phone, 

he could zoom in on the video of Ramsey. Tr. 431-38. Thus, Austin asserted that the image, on 

his cell phone screen of about three inches by four inches, was much clearer and sharper than the 

enlargement. Austin denied knowing that any miners regularly brought their cell phones onto the 

mine site before the safety training in October 2015. Tr. 429. Austin agreed with the Court’s 

perception that in every photos and video, one can see that the individual pictured has both hands 

near their lap or waist. Tr. 440-41. 

On cross-examination, Austin stated that he was standing at least seven feet away from 

the edge of the highwall when he took the photo, and that his photos were not cropped in any 

way. Tr. 441-42. He agreed that the total distance for his video and photos from his location to 

Ramsey’s haul truck was about 55 feet. Tr. 442. Austin added that when he recorded video of 

Ramsey, he zoomed in as far as he could on his phone. Tr. 443. 

Testimony of Mike LaRue 

 Mike LaRue is an MSHA safety and health inspector, who has also worked as a special 

investigator and a fatal accident investigator. Tr. 212. In addition to the MSHA training required 

to be a special investigator, LaRue’s credentials include an associate’s degree in occupational 

safety, job-related certifications, and 13 years of experience in underwater construction. Tr. 213. 

39 FMSHRC Page 1049
 LaRue met Ramsey around September 2015, while collecting evidence and investigating 

Ramsey’s first 105(c) discrimination complaint26 against Vulcan. Tr. 214. During that 

investigation, LaRue determined there was a prima facie case — that Ramsey was a miner, that 

he engaged in the protected activity of making safety complaints to his mine management, and 

that he incurred an adverse action, for which at least LaRue believed there was a nexus. Tr. 215. 

LaRue was aware of the incident in September 2015 when Ramsey used his cell phone to speak 

with his mother while at the mine, and was aware that the mine took no disciplinary action 

because of MSHA’s ongoing 105(c) investigation. Tr. 223-24. LaRue testified that Bill Duran, 

counsel to the Respondent, made the decision that there would be no discipline for this incident. 

Tr. 227. To be clear, in no way does the Court infer that Ramsey’s first complaint establishes or 

advances the present discrimination complaint. It does show, however, that there was a history of 

underlying events between Ramsey and Vulcan. The Court assured Vulcan that the mere lodging 

of Ramsey’s first complaint could not be used by the Secretary to bootstrap the merits of the 

present complaint. Tr. 216. 

A month or two after that, LaRue discussed the process of becoming a miners’ rep with 

Ramsey via phone and e-mail, including topics such as elections, protected activities, and how to 

complete the required paperwork. Tr. 225-26. Ramsey asked LaRue if he had to inform Vulcan 

management that he was seeking to become a miners’ representative, and LaRue told him he did, 

because election results would be posted at the mine. Tr. 226. LaRue testified that miners’ reps 

are a relative rarity at Vulcan; it was his belief that out of roughly 20 Vulcan quarries throughout 

its Southeast district, only two quarries had miners’ representatives.27 Tr. 237. 

LaRue also looked into Vulcan’s cell phone policies and, to the best of his knowledge, at 

the time of Ramsey’s discharge, Vulcan’s policies on that subject are contained in Exhibits S-1 

and S-2. Tr. 228; Ex. S-1; Ex. S-2. When LaRue reviewed the examples of ETDs listed in the 

company policy, he noted that all of the devices enable two people to speak to each other in real 

time. Tr. 232-33. However, LaRue found that an iPod cannot provide any kind of cell service 

without a Wi-Fi connection. Id. 

 On cross-examination, LaRue described how, after he began his investigation of the 

instant complaint, he asked Ramsey to bring in both his cell phone and his iPod. LaRue then 

photographed the two devices side by side. Tr. 239; Ex. S-12. The photographs were taken after 

LaRue had interviewed management, including Bush and Austin, about the alleged “cell phone 

incident” that led to Ramsey’s termination. Consequently, LaRue did not show either Austin or 

Bush his photos of the devices, nor did LaRue elect to show any Vulcan management Ramsey’s 

phone records. Tr. 241-49, 252. 

																																																													 26 Ramsey’s earlier 105(c) complaint also named Sherrod as a discriminator. Tr. 215. 

27 The Secretary presented some testimony through LaRue about cell phone use and 

miners’ reps at other Vulcan properties. Tr. 233- 238; Gov. Ex. S 8. The Court twice described 

this evidence as having “marginal” relevance, a description which remains accurate. The 

footnote appears because the Court stated that this information of marginal relevance would 

appear in a footnote in this decision. Tr. 238. This is that footnote. 

39 FMSHRC Page 1050
 When the Respondent asked LaRue if Mr. Duran had made a statement to him to the 

effect that, if there had been a prior written warning about cell phone use, the company would “at 

least . . . normally take disciplinary action,” LaRue responded, “I believe he referred something 

to that — yes.” Tr. 255. 

Respondent’s Evidence 

Testimony of Daniel Bush 

 Daniel Bush has worked for Vulcan for 23 years, and is a plant manager for the sites in 

Bristol, Tennessee and Norton, Virginia. Tr. 260. On December 1, Bush got a phone call from 

Huffman informing that Austin needed him to act as a witness at the Bristol quarry. Id. Bush 

then went to the mine and attended a meeting with both Austin and Ramsey present. Tr. 261-62. 

Austin told Bush that he had witnessed Ramsey using a cell phone in the haul truck, that Austin 

confronted Ramsey about that, and that Ramsey would not show the cell phone to Austin. Tr. 

261. Bush stated that Ramsey “spoke up and said he [Ramsey] don't have – I don't have a phone, 

didn't have a phone in the haul truck, I had an iPod, and he [Ramsey] refused to show it.” Tr. 

261. During this meeting, which lasted about an hour, Bush observed Ramsey being asked 

several times to produce “the device” he had used. Tr. 262. At one point, Bush was briefly alone 

in the room with Ramsey, and asked Ramsey why he wouldn’t just show Austin his phone, or 

iPod, or whatever he had. Id. Bush testified that Ramsey responded, “that’s not the point, you all 

should just trust me.” Id. 

 On cross-examination, Bush agreed that he conducted training “on a cellphone policy” 

that consisted of instructions “to keep your personal cellphone off the quarry property.” Tr. 266-

67. As a supervisor, Bush granted miners permission to use cell phones in certain situations, such 

as if there was a family emergency. Tr. 267. Bush admitted that there is no more danger in using 

an iPod in a vehicle that is not moving than there is in using a radio. Tr. 267-68. On re-direct 

examination, Bush clarified that miners are supposed to get a manager’s permission before using 

a cell phone at work during a family emergency. Tr. 269. 

Testimony of William Huffman 

 Mr. Huffman is the health and safety manager for Vulcan’s Central Division, and has 

held this position for nearly 30 years. Tr. 272. His responsibilities include investigating 

accidents, reviewing relevant policies and regulations, and overseeing other personnel who are 

responsible for workplace safety. Tr. 273. Another part of Huffman’s job is interacting with 

MSHA representatives. Tr. 274. 

Although Huffman was not physically present at the Bristol quarry on a particular day in 

the summer of 2015, he did participate by being present on the telephone during a conference 

call with Austin and Sherrod that day. Tr. 275. 

39 FMSHRC Page 1051
Through the telephone, Huffman heard Ramsey enter the office in what he described as a 

violent and threatening manner:28

I heard an individual bust into the room, very violently, I heard a lot of 

commotion going on... I was in Chattanooga, Tennessee when it happened, and I 

had two people in the room that I had — it almost sounded like that the next thing 

we were going to hear was gunshots. I mean, that’s how violent it was. 

Id. 

Huffman responded by introducing himself to Ramsey, and told him, 

I had heard what had transpired, and at that point I asked him, he needed to leave 

because he was very — very upset and I could not see him. All I could do was 

hear the interaction of what was going on over the phone. 

Tr. 276. 

Huffman asserted that he also heard Ramsey cursing during the call. But, even by 

Huffman’s version, Ramsey was not all about rambunctious behavior, as Huffman admitted that 

Ramsey requested the phone number of Vulcan’s vice president. Id. In return, Huffman told 

Ramsey the number for Vulcan’s Knoxville office, and “asked him to call Jeff May, the Vice 

President.” Id. 

 However, Huffman did not recall if Ramsey made his other request concerning a number 

for miners’ rights, and despite hearing quite clearly Ramsey’s alleged contumacious behavior, he 

added that Ramsey “did not ask [for that information] that [he] heard.” Tr. 277 (emphasis 

added). The next day, he had a discussion with Barrett about his concern that “[Ramsey’s] action 

and the way he came into the room, that he was upset, you know, we had people that were in 

harm’s way, that we felt...” Id. Huffman asserted that he was concerned about safety, and not 

about the request for the vice president’s phone number. Tr. 278. 

Regarding the incident of December 1, 2105, Austin informed Huffman of what he 

believed he observed at the mine that morning, and sent Huffman the photo and video he 

recorded of Ramsey using a device in the haul truck. Id. Huffman then called the company’s 

lawyer, Mr. Duran, and asked for his advice. Tr. 279. After conferring with the lawyer, Huffman 

instructed Austin to question Ramsey as to what he was using in his haul truck. Tr. 280. Austin 

called Huffman back and informed that Ramsey “was claiming that he was using an iPod.” Id. 

He then instructed Austin “to get the iPod - - if there was an iPod, then tell [Ramsey] to put it in 

																																																													 28 Huffman had met Ramsey before this call and it is fair to state that he had a poor 

opinion of him based on that prior interaction. If believed, Huffman stated that he met Ramsey 

around December 2014, when he was conducting annual refresher training and that Ramsey fell 

asleep during the class. Tr. 273-74. It is unnecessary, because of the lack of its importance, for 

the Court to determine if Ramsey was asleep in Huffman’s class. Based on his testimony, 

recounting his audio participation of that summer of 2015 conference call, the Court considered 

Mr. Huffman to be an exaggerator. 

39 FMSHRC Page 1052
his personal truck and go back to work.” Id. Austin did not follow through with Huffman’s 

instruction. Huffman maintained that Ramsey’s suspension was motivated by the events of 

December 1, and not the prior discrimination complaint. Huffman admitted that he was aware of 

the prior 105(c) complaint. Tr. 282. 

 On cross-examination, Huffman stated that prior to Ramsey’s suspension there had been 

no conversations among management about whether the use of an iPod was permitted under 

company policy. Tr. 284-85. He also agreed that even at the time of his testimony it was not yet 

settled whether iPods are currently prohibited at Vulcan’s mines.29 Id. 

 Huffman admitted that the entire conference call he overheard concerning the lock and 

key incident, which call he found to be so threatening, lasted about one minute. Tr. 287. Though 

Huffman testified that he looked up the number to call the police in Bristol, Tennessee, despite 

his dramatic recounting, he did not call the police about Ramsey. Tr. 286. On cross-examination, 

Huffman agreed with the Secretary’s counsel that during his deposition he indicated Ramsey did, 

in fact, mention miner’s rights. Tr. 287. Further, while Huffman agreed during his hearing 

testimony that Ramsey did request the telephone number for Vulcan’s vice president during the 

conversation, this was at variance from his deposition two weeks earlier. He explained his 

contradictory testimony because he “was confused between the miners' rep number and --during 

the deposition we talked a lot about different 800 numbers.” Tr. 286. Pressed, he then admitted 

that when deposed he claimed Ramsey did not ask for the number. Tr. 287. Continuing with the 

lock and key incident, Huffman admitted that it was never determined that the lock belonged to 

Ramsey. A window into where Huffman was coming from, when asked whether he agreed that it 

was never determined that Ramsey misled Vulcan, Huffman could only admit, “[n]ot 

conclusively, no.” Pressed about his indefinite response, Huffman then admitted, Vulcan “had no 

evidence that would say that it was his or it wasn't his lock.” Tr. 288. 

 Regarding Ramsey’s suspension letter in connection with the lock and key investigation, 

Huffman admitted that he had input into the letter in that he was “not very happy” with what 

Austin and Sherrod “had to undergo” from Ramsey’s behavior. Tr. 289; Ex. S-4. However, 

Huffman also informed that “John Sherrod probably was the person that inputted the most, 

because he was on the scene.” It should be recalled that Sherrod, the one who put his finger in 

Ramsey’s face, was certainly on the scene, as he acted as the chief interrogator. 

Although Huffman told Barrett that he was worried about gunshots and was ready to call 

the police, and that he would call the police if Ramsey returned to the mine that day, that 

information does not appear in the suspension letter. Tr. 290. Despite his great fears, Huffman 

stated that he did not participate in discussions about the discipline Ramsey would receive for 

any infraction related to the July 2015 event. Id. 

 On the topic of the December 1st video Austin sent to Huffman, at the hearing Huffman 

scuffled in his response, stating at first that he could hardly see anything from the video, but that 

was “when [he] couldn’t open it.” Tr. 293. He then offered that “when [he] finally viewed it at a 

																																																													 29 Huffman also agreed that Exhibit S-2 is a “more abbreviated version of the policy 

contained in Exhibit S-1. Tr. 283. 

39 FMSHRC Page 1053
larger version, [he] could see it looked and appeared to be a cellphone in his hand, and [he] could 

see, you know, how you scan through on a [sic] iPhone or whatever.” Tr. 292. Having viewed 

the video itself, the Court was amazed at Huffman’s capacity for discernment, inquiring “You 

saw all that on the video?” Tr. 293. Huffman affirmed he could indeed see all that. Id. 

Huffman admitted that Austin had the authority to stop Ramsey from doing anything 

unsafe, and was in fact required to do so. Yet, he gave no such instruction to Austin to have 

Ramsey stop his alleged cell phone use. Tr. 294. 

In Huffman’s opinion, using an iPod is similar to using a radio, which Vulcan does allow 

truck drivers to do. Tr. 295. However, Huffman was unwilling to take Ramsey at his word 

because, “Austin believed he had a cellphone.” Id. (emphasis added). Huffman admitted he does 

not know of anyone at Vulcan who has been disciplined for the use of an iPod, aside from 

Ramsey. Tr. 301. He also clarified that Ramsey was terminated for “use of an electronic device,” 

and not for refusing to show management his iPod. Tr. 297. 

 Regarding miners’ representatives, Huffman admitted that, to his knowledge, there is 

only one mine in Vulcan’s Central Division with a miners’ representative: the Green Rivers 

quarry in Kentucky. Tr. 298. Huffman admitted that, although Vulcan’s training may mention 

miners’ reps while covering miner rights and responsibilities, there is no specific training on how 

to become a miners’ representative. Tr. 299-300. Huffman himself does not encourage any 

miners to become a representative in that he doesn’t “go out and talk about [that].” Tr. 300. It 

was his testimony that he only learned that Ramsey was trying to become a miners’ rep after 

December 1, 2015. Tr. 297-98. 

 On re-direct examination, Huffman reiterated his lack of discriminatory intent and 

testified that Vulcan is very reluctant to search the personal belongings of a miner without 

permission, including a lunchbox, even if there were suspicion of a miner having weapons, 

drugs, or alcohol.30 Tr. 305-06. 

Huffman maintained that Ramsey was not disciplined for using an iPod. Tr. 301. It was 

Huffman’s view that Ramsey had the burden to prove his innocence, not that Vulcan had to 

prove he in fact had a cell phone that day. As he expressed it, 

In my mind if you can't show what you say that you've got... the way that I saw 

that was if you can't produce what you're saying you've got, you're not willing to 

do that, then what we saw or what we felt at that time, was he was using an 

electronic device such as a cellphone while he was working. 

Tr. 304 (emphasis added). 

In response to the Court’s inquiry whether it’s “true that at any time any management 

person at that site could walk over to that truck and examine it and anything that's in it, because 

																																																													 30 Huffman did not address the fact the Ramsey explicitly invited management to come 

with him to his pickup truck so that it could be established by Vulcan itself that his cell phone 

was in his personal truck. 

39 FMSHRC Page 1054
it's Vulcan's truck; correct?,” Huffman responded, “That is correct.” Tr. 304-05. Huffman 

admitted that Vulcan never took the action it had the authority to take, agreeing that “even if Mr. 

Ramsey said I refuse to let you look in the truck, you could totally overrule that and look in that 

truck, from one end to the other; correct?” Huffman affirmed, “That is correct, Judge.” Tr. 305. 

The Court considered Huffman’s testimony to be dubious. 

Testimony of Edward Barrett 

 Mr. Barrett worked for Vulcan for over 19 years; but he had retired from its employment 

prior to the hearing in this matter. Tr. 310-11. Barrett has a secondary degree in industrial labor 

relations. Tr. 312. His career in human resources includes “36 years on the employer’s side and 

eight years on the union side.” Tr. 311. At the end of his career, Barrett was the vice president of 

Human Resources for Vulcan’s Central Division. Id. 

 Barrett reviewed “some videos of Mr. Ramsey operating the vehicle that had been 

obtained by Mr. Austin ... Mr. Ramsey’s record, his situation with prior discipline, and [with 

that information he] made a determination that the appropriate course of action under the 

circumstances was termination.” Tr. 314. Barrett was then involved in drafting the notice of 

termination discussing these topics, which ultimately requires approval of a VP-GM level, senior 

manager. Tr. 315. 

 Barrett testified that he concluded Ramsey should be terminated because, 

he had full knowledge of the policy, he had received that policy when he was 

employed, he was disciplined for that -- for a violation of the policy in October of 

'13. He was trained on the policy in the course of our open enrollment, refresher 

training in late October of 2013. 

Tr. 316. 

 Barrett also stated that Ramsey would not have been fired if this had been his “first 

offence,” but stated that his “prior record” justified the discharge. Tr. 319. The prior record 

referred to by Barrett was the instance where Ramsey, in Barrett’s words, 

basically lied to... Austin about possessing a cell phone on the premises... only 

after he was confronted with the fact that his mother had called the plant office 

saying [she] got cut off from [her] son [did] he admit to Keith [Austin] that he 

actually did have a cellphone in the [work]vehicle and he... was given a written 

warning. 

Tr. 317; R’s Ex. 13. 

 In Barrett’s account, management chose to discharge Ramsey because, “basically it was a 

repeat situation.” Tr. 320. Barrett admitted that he was not at the site personally for any of the 

events he recounted concerning Ramsey and that, apart from Austin’s video, he conceded that 

“[a]nything [he] learned was what other people at Vulcan were telling [him].” Tr. 322. 

39 FMSHRC Page 1055
 Although Barrett testified that he believes it is safe to use haul truck radios while working 

because “they’re actually installed in the vehicle,” he stated that Vulcan’s policy bars the use of 

“any type of electronic device that would distract the employee.”31 Tr. 324-25. Barrett stated that 

the company handbook provides for a progressive system of discipline, yet it also states that 

Vulcan may terminate an employee for a first offense “depending on the severity of the 

infraction.” Tr. 334. Finally, Barrett denied that his decision to terminate Ramsey was motivated 

by his previous safety complaints, contending that he did not know about them at that time. Tr. 

325-26. However, Barrett did admit that he was aware as of December 1, 2015, that Ramsey had 

filed a prior discrimination complaint. Tr. 325. 

 On cross examination, Barrett testified that the usual steps that Vulcan takes in 

disciplining an employee are: a verbal warning; a written warning; a suspension; and then 

termination. Tr. 339-40. He advised that Vulcan’s policy is that discipline only stays on an 

employee’s record for one year, so the October 2013 warning contained in Exhibit R-6 should no 

longer have been in Ramsey’s record by December 2015. Tr. 337. Yet, Barrett equivocated on 

the issue of whether the October 2013 warning played a role in the decision to terminate 

Ramsey, saying it was not used “directly,” but it did show “awareness of the policy.”32 Tr. 337-

38. 

 Although Barrett could not “recall a specific case” where a Vulcan employee was given a 

final warning as a first disciplinary step, he asserted that among Vulcan’s 1200 employees and 

60 facilities he was “sure” he could find an instance where that occurred. Tr. 341-42. However, 

assurances aside, no actual example was provided by Barrett. He also testified that Vulcan has a 

general rule known as the “day in court” rule, meaning that an employee will not be disciplined 

“without an opportunity to sit down and speak with someone” about their side of the story. Tr. 

343. However, Barrett added that this was not a “written policy,” but rather only a “general rule.” 

Tr. 342. He further qualified that Vulcan’s “day in court” general rule does not necessarily mean 

that a miner would have the opportunity to tell their story to someone not directly involved in the 

incident. Tr. 343-44. 

Barrett also made inconsistent statements on the issue of whether Ramsey was terminated 

in part due to “lack of cooperation” during the December 2015 cell phone incident. Barrett 

testified at hearing that the lack of cooperation was not “a direct factor,” yet he denied that the 

lack of cooperation was “not a significant factor at all.” Tr. 347. He then agreed that, during his 

deposition testimony, given only one week before the hearing, he stated, “[he] didn’t consider 

that [lack of cooperation] a significant factor. Again, we focused on the what [sic] [Ramsey] had 

been doing when he was operating the truck.” Tr. 348 (emphasis added). 

The Court would comment that Barrett’s conclusion and recommendation were built on 

the premise that Ramsey was in fact using his personal cell phone while on the job on December 

																																																													 31 This is at odds with the Respondent’s stated position in this matter. 

32 The Secretary contended that, since Ramsey was re-trained on the ETD policy in 2015, 

the 2013 warning was not relevant to showing his knowledge of the policy. Tr. 339. 

39 FMSHRC Page 1056
1, 2015. The Court has found that Ramsey did not use his cell phone on the job that day. 

Working as he was from that defective premise, Barrett’s testimony must be disregarded. 

Testimony of Glen Lunsford and Tommy Leonard 

 Glen Lunsford has been working at Vulcan’s Bristol plant for 42 years, with the last 15 to 

20 years of that time as a haul truck driver. Tr. 364. Lunsford is an hourly worker with no 

managerial duties. Tr. 368. He testified of becoming concerned about Ramsey using a cell phone 

while driving his haul truck. That conclusion, that Ramsey was using a cell phone, was made 

because on occasion he saw Ramsey looking down at his lap while driving a haul truck. While 

Lunsford admitted that he “didn’t have no idea what [Ramsey] was doing,” that behavior, 

Ramsey looking down at his lap, made him suspicious that Ramsey was using a cell phone. Tr. 

365. Lunsford later reaffirmed that he didn’t know if Ramsey had a cell phone in his truck, only 

that Ramsey was doing something with his lap. Tr. 368, 375. According to Lunsford, Ramsey’s 

looking down while driving his haul truck made him afraid for his safety and he told Austin of 

his fear.33 Tr. 366. 

Tommy Leonard has been working at the Bristol quarry for 40 years. He operates an 

excavator. Tr. 377. Like Lunsford, Leonard is also an hourly employee with no managerial 

duties. Id. Leonard stated that, while loading Ramsey’s haul truck, he could see Ramsey was 

“playing with what [he, Leonard] thought was a phone.” Tr. 378. It was his testimony that he 

could observe Ramsey’s behavior through Ramsey’s side view mirror. Tr. 379. Leonard, like 

Lunsford, reported his concerns to Austin. Tr. 380. 

Leonard recounted the same information about the safety meeting, and recalled there 

being a few meetings in 2015 where management mentioned cell phones. Tr. 383-84. On the 

issue of actually seeing Ramsey possessing or using a cell phone, Leonard admitted that he never 

saw Ramsey holding a cell phone up to his ear, as if to talk with someone. Tr. 387. 

In an obvious attempt to diminish that Ramsey had raised safety issues to Vulcan’s 

management, Leonard stated that “everybody” at the quarry would bring up safety complaints. 

Tr. 385. However, Leonard’s claim contradicted his own deposition testimony on this issue. At 

his deposition, Leonard said that Ramsey was the only person he knew who made safety 

complaints to management. Tr. 385-86. With his contradictory claims exposed, Leonard then 

responded that he had misunderstood the question during his deposition. On re-direct 

examination, Leonard claimed that he may have heard other people talking about Ramsey using 

a cell phone in the haul truck. Tr. 389. On re-cross examination, Leonard admitted that he knew 

																																																													 33 Interestingly, Lunsford, speaking to his awareness of Vulcan having a policy against 

using cell phones, stated he “didn’t really know it was a policy until later.” Tr. 368. It was only 

when Austin held a safety meeting one morning in the fall of 2015 telling the employees not to 

have their cell phones in the mine vehicles, that he stopped bringing his cell phone in his haul 

truck. Tr. 371-72. Ironically, Lunsford admitted that he has used his cell phone at work, “[w]hen 

[his] wife called [him].” Id. That use, in the Court’s estimation, is hard to distinguish from 

Ramsey’s call with his mother. 

39 FMSHRC Page 1057
Ramsey had made safety complaints and talked to other miners about safety, but did not recall 

any details about these complaints. Tr. 390. 

Thus, both Lunsford and Leonard stated that they confronted Ramsey and told him to 

stop using his phone while working before he got caught by management.34 Neither could recall 

what, if anything, Ramsey said in response to the concerns they allegedly raised to him. Tr. 369; 

382. The Court did not consider either Lunsford or Leonard to be especially credible. 

Testimony of Benjamin Cate

 Mr. Cate is an area manager for Vulcan, and supervises the managers of 12 plants, 

including the Bristol quarry. Tr. 392-93. He has held this position since 2010, and has worked for 

Vulcan for 31 years. Id. Although Cate met Ramsey briefly during a meeting at the Bristol 

quarry, he was not at the plant on December 1, 2015. Id. Cate heard secondhand about the 

“phone incident” that day, watched the video that Austin recorded, and personally believed that 

Ramsey had a cell phone based on how Ramsey “was holding his hand and looking at it.” Tr. 

396. Cate told Barrett that he thought Ramsey should be terminated. Tr. 397. He denied, as each 

of Vulcan’s witnesses who spoke to the subject dutifully denied, that the decision to terminate 

was motivated by Ramsey’s previous safety or discrimination complaints. Id. 

 On cross-examination, Cate admitted that he played no role in preparing Exhibit S-7, the 

termination letter, and stated that he never prepares disciplinary documents. Tr. 398. Cate also 

agreed that he said he did not make a recommendation about the discipline that Ramsey should 

receive. Tr. 399. On re-direct examination, Cate offered an interesting perspective about his 

participation, as he perceived a nuanced difference between telling Barrett what he believed 

should be done and making a recommendation. Tr. 399-400. As Cate, an apparent wordsmith, 

explained to Vulcan’s attorney, the Secretary’s attorney asked if he made a recommendation

about the discipline for Ramsey, whereas he only gave his opinion on the subject. Tr. 399. The 

reader can glean the Court’s estimation of the value of Cate’s testimony. 

																																																													 34 This struck the Court as an oddity, which diminishes their credibility, and not simply 

because the witnesses’ testimony paralleled one another. Consider this: we have two witnesses 

who were ostensibly concerned about Ramsey getting caught by management while using his 

cell phone and yet they are the ones who reported to management, informing Austin about the 

alleged conduct. 

39 FMSHRC Page 1058
Other Testimony 

Several other witnesses testified for the Respondent about the practices that Vulcan 

employs regarding authorizations to use cell phones at other quarries in Cleveland, Tennessee 

and Athens-Sweetwater, Tennessee.35 Tr. 401-11. 

Testimony of Amy Reese 

Ms. Reese is Vulcan’s Human Resources supervisor, and has been with the company for 

28 years. She has 15 years of experience with the Human Resources team, and has been a 

supervisor for about a year and a half. Tr. 413. Reese conducted presentations on the 

Respondent’s new employee handbook, which addressed ETDs. Tr. 414-15; Ex. S-2. Because 

this was a new policy, she included two slides about the policy in her presentation. Tr. 415. 

Reese testified that Ramsey was present at the Bristol quarry training on October 29, 2013, 

which she knows in part because HR asked employees to sign sheets acknowledging receipt of 

the handbook. Tr. 415-18. Ex. R 50, and 51. On cross examination, Reese clarified that Vulcan’s 

policy on cell phones appeared in a policy memo, and was only included in the employee 

handbook in October 2013. Tr. 423. The Court would comment that this testimony added 

nothing to the central issues in this matter. 

Testimony of Russell Scott Powers 

 Mr. Russell Scott Powers was also called as a witness for the Respondent — he is the 

foreman at the Bristol quarry, and has worked for Vulcan for 18 years. Tr. 425-26. Austin is 

Powers’ direct supervisor, and Powers knows Ramsey. Id. Powers, though acknowledging 

awareness that Ramsey had some family medical issues, affirmed that it would be fair to say that 

he did not remember giving Ramsey approval to carry his cell phone in his, (i.e. Ramsey’s), haul 

																																																													 35 Except perhaps to point out that Vulcan’s policy on cell phone usage is not uniform 

across its many operations, the value of testimony from Vulcan witness Steve Vickery was 

elusive. Vickery is the plant manager for a Vulcan plant in Cleveland, Tennessee. Apparently 

called to speak to his practice for cell phone use at his mine site, Vickery stated that he has 

authorized that certain people could have their cell phones as long as they use them in a safe 

practice and that it is his understanding that Vulcan’s policy permits such use. Tr. 403. Upon 

cross-examination, Vickery stated that 7 people are authorized to use cell phones at his Vulcan 

plant, all of them being hourly employees. Tr. 404. The only restriction placed on cell phones is 

that they are not to be used while they are “operating.” Id. Equally elusive was the testimony 

Vulcan offered from “lead man” Allen Stewart, an hourly employee, who accompanied Inspector 

LaRue during an inspection of the Athens-Sweetwater quarry in July 2015. Tr. 406. At one point, 

while a third party was waiting for a phone call, Stewart made a statement to LaRue that 

“everyone knows we ain’t supposed to have these phones and stuff... but sometimes it’s the best 

means of communication that we got.” Tr. 407. By Stewart’s account, LaRue then told him to 

stop talking about that. Id. Stewart knew of two employees at his quarry who have special 

authorization from his boss, Mr. Jason Perry, to carry cell phones. Id. Martin Jason Perry was 

next up for Vulcan’s witnesses. Perry is the plant manager for another Vulcan plant, this one in 

Athens-Sweetwater. Offering testimony even more attenuated than that of Vickery or Stewart, 

Perry stated that cell phones may be used for potential family emergencies. Tr. 411. 

39 FMSHRC Page 1059
truck. Tr. 427. Powers also stated that employees with family emergencies are supposed to use 

the office phone to take calls. Tr. 428. 

Mine Act Discrimination Claims 

 This discrimination complaint was brought under section 105(c)(2) of the Mine Act, 

alleging a violation of section 105(c)(1), which states, in relevant part: 

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner [or] representative of miners . . . because such 

miner [or] representative of miners . . . has filed or made a complaint under or 

related to this chapter, including a complaint notifying the operator or the 

operator's agent at the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine. 

30 U.S.C. § 815(c). 

 As the Commission stated in Jaxun v. Asarco, “[t]he Mine Act, the Administrative 

Procedure Act (‘APA’), and the Commission’s Procedural Rules permit a Complainant to 

proceed with an action under section 105(c)(3) of the Mine Act without representation.” Jaxun 

v. Asarco, LLC, 20 FMSHRC 616, 620 (Aug. 2007). 

 The legal framework for assessing discrimination claims brought under the Act is wellestablished and clear. A complainant may establish a prima facie case by showing “(1) that he 

engaged in protected activity, and (2) that he thereafter suffered adverse employment action that 

was motivated in any part by that protected activity.” Pendley v. FMSHRC, 601 F.3d 416, 423 

(6th Cir. 2010). The complainant bears the ultimate burden of proving these elements by a 

preponderance of the evidence. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (Apr. 1981). 

 Protected activity often takes the form of complaints made to the operator or its agent of 

an “alleged danger or safety or health violation. 30 USC § 815(c)(1). Often, the Court will be 

called upon to consider indirect evidence of a discriminatory motivation for the adverse action. 

The Commission has stated that “[d]irect evidence of motivation is rarely encountered; more 

typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps 

Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. 

Cir. 1983). Where direct evidence of motivation is unavailable, the Commission has identified 

several indicia of discriminatory intent, including, but not limited to: “(1) knowledge of the 

protected activity; (2) hostility towards the protected activity; (3) coincidence in time between 

the protected activity and the adverse action; and (4) disparate treatment of the complainant.” 

Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1066 (May 2011) (citing Chacon, 3 

FMSHRC at 2510). When considering indirect evidence, the Court may draw reasonable 

inferences from the facts. Id.

39 FMSHRC Page 1060
 An adverse action is any “act of commission or omission by the operator subjecting the 

affected miner to discipline or a detriment in his employment relationship.” Sec’y of Labor on 

behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984). An 

adverse action must be material, meaning that the harm is significant rather than trivial. In 

determining whether adverse action has occurred, the Commission applies the test articulated in 

Burlington North v. White. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see 

also Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1931 

(Aug. 2012). 

 If a complainant establishes the required elements, the burden shifts to the operator to 

rebut the prima facie case by showing “either that no protected activity occurred or that the 

adverse action was in no part motived by protected activity.” Driessen v. Nev. Goldfields, Inc., 

20 FMSHRC 324, 328 (Apr. 1998). 

 An operator who cannot rebut the prima facie case may still raise an affirmative “mixed 

motive” defense by proving that the adverse action was motivated only in part by protected 

activity, and it “would have taken the adverse action for the unprotected activity alone. Haro v. 

Magma Copper Co., 4 FMSHRC 1935 (Nov. 1982). The operator must prove this defense by a 

preponderance of the evidence. Id., see also Pasula, 2 FMSHRC at 2799-800. When evaluating 

an affirmative defense, the Court follows the two-step analysis outlined by the Commission in 

Chacon v. Phelps Dodge. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508 (Nov. 1981). The first step of the Chacon analysis directs the Court to determine 

whether “the justification is so weak, so implausible, or so out of line with normal practice that it 

was a mere pretext seized upon to cloak discriminatory motive.” 3 FMSHRC at 2516. If the 

Court finds that the justification is not pretextual, it then moves to the second step, which is a 

“limited examination” of the justification’s substantiality, and assesses the narrow question of 

“whether the reason was enough to have legitimately moved that operator” to engage in the 

adverse action.” Id. at 2516-17. 

Discussion 

As noted, the Court fully considered the parties post-hearing briefs. A few comments 

about those submissions are made here, followed by the Court’s further discussion of this case. 

The Court agrees with the Secretary’s remarks summarizing Ramsey’s invocations of 

protected activity to include his safety complaints, all made to Austin, as fully discussed above. 

The lock and key incident is also important because it reveals that Vulcan, acting through Austin 

and Sherrod, had an animus toward the safety-active Ramsey. There is no reasonable explanation 

to justify Vulcan’s many interrogations of Ramsey regarding the lock and key incident. Austin 

and Sherrod effectively goaded Ramsey through the use of the multiple questioning sessions, 

asking repeatedly about the same issues. Sherrod, in particular, so shocked that Ramsey, having 

had enough, would swear as a means of venting because of the repetitive harangues, was hardly a 

model of professionalism. As has been noted, he characterized Ramsey’s answers as a “fairy 

tale” and aggressively put his finger in Ramsey’s face. Even after serving his three-day 

suspension, a suspension which the Court considered to be unwarranted, Ramsey was 

interrogated again. It is noteworthy that Ramsey was never disciplined on the basis of any 

39 FMSHRC Page 1061
violation of the mine’s lock out/tag policy, nor was any employee, except Ramsey, disciplined in 

connection with that matter. 

Following the issuance of the Final Warning and Disciplinary Suspension, Ramsey stood 

up to the unwarranted suspension by having the courage to file a 105(c) complaint against 

Vulcan. In the Court’s estimation, that protected activity, filing a discrimination complaint, made 

Ramsey more of a marked man, as did Ramsey’s making it known to Vulcan that he would be 

applying to MSHA to become a miners’ representative. It was no happenstance that, on the same 

day Ramsey reiterated that intention, by seeking the mine’s identification number so that his 

miners’ application could be completed and submitted, Austin elected to surveil Ramsey from 

atop a high wall, peering down some 50 feet below and recording what he believed was Ramsey 

using a cell phone in his haul truck. 

Thus, the Court concludes that the Secretary well met its burden, under the 

preponderance standard, having established both that Ramsey engaged in protected activity, and 

that Vulcan’s adverse action was motivated by that activity. Vulcan had knowledge of Ramsey’s 

protected activity, displayed hostility towards it, and the adverse action occurred close in time to 

that protected activity.36 

The Secretary, addressing the December 1, 2015 event, contends that there was no 

unprotected activity that could justify Ramsey’s firing. The ostensible unprotected activity put 

forward by Vulcan was use of a personal cell phone in violation of its electronic communications 

policy. As noted, the Court finds that the evidence does not support, at all, that Ramsey was in 

fact using his cell phone while on the job on December 1, 2015. It is clear that Ramsey was using 

an iPod on that date. Ramsey’s cellphone records support that he was not using his cell phone on 

																																																													 36 The Secretary asserts that Vulcan disciplined Ramsey in a “disparate manner” by 

issuing a final warning and suspension with regard to the missing key incident, which essentially 

provided that any kind of transgression on Ramsey’s part in the next year, including any form of 

“problem performance” would cause him to be fired. Ex. S 4. The Secretary’s point is that 

Vulcan simply discarded its “progressive discipline policy” for Ramsey. Sec. Br. at 16-17. 

Although Vulcan asserted that it can go outside of the progressive discipline steps for serious 

violations, the Secretary provided a litany of workplace failures for which only written warnings 

were issued even though, on their face, those failures were more serious. Perhaps the most 

glaring example of a disciplinary process that seems to operate on a chaotic whim is that 

involving an employee who was “given a non-disciplinary warning for bringing a firearm to 

work in direct violation of a Vulcan written policy. Ex. S-18 at RESP 0120.” Id. at 18. In fact, 

Barrett, Vulcan’s former vice president “for human resources, could not think of any case 

involving another employee who was given a final warning as the first step in the disciplinary 

process.” Id. at 18, citing Tr. at 341-42. Apart from these observations, the Court is of the view 

that Vulcan’s actions on December 1, 2015 are themselves more than sufficient to establish its 

discriminatory behavior toward Ramsey. 

39 FMSHRC Page 1062
that date during his time on the job. Vulcan’s policy does not prohibit the use of iPods. Neither 

Vulcan’s Division Policy nor its Handbook prohibits the use of an MP3 player,37 such as an iPod. 

Regarding Vulcan’s post-hearing briefs, Vulcan begins with the claim that Ramsey’s 

claim should fail because he “failed to demonstrate that there was a causal link between his 

protected activity and the termination of his employment which is sufficiently close in time to 

justify an inference of discrimination on the part of Vulcan’s personnel.” R’s Br. at 1. This is 

hardly worth comment – Ramsey’s protected activities were cumulative and, certainly with 

regard to his initial complaint of discrimination, and his effort to file as a miners’ representative, 

those actions were, undeniably, sufficiently close in time to draw the inference. In fact, speaking 

just to the morning of December 1, 2015, Ramsey’s protected activity seeking the information to 

file his miners’ representative application was contemporaneous with the day he was, for all 

practical purposes, fired. Vulcan, for good reason, rapidly moved to its alternative stance that, 

even if there is a link, the evidence shows Ramsey’s firing was in no part motivated by any 

protected activity. Id. To the contrary, the evidence shows that, as Vulcan never established that 

Ramsey was using his cell phone while on the job operating his haul truck on December 1, 2015, 

Ramsey’s firing can only be explained as being motivated by his protected activity. 

 In what the Court finds to be a peculiar stance, Vulcan asserts that in determining 

whether or not the Complainant actually possessed a cellular phone while in the 

haul truck in question on December 1, 2015, the analysis of this case should not 

be driven by hindsight, which necessarily includes information to which Vulcan 

was not privy when its supervisors, in real time, had to address the repeated, 

obstinate refusals by the Complainant to comply with the reasonable request of 

Mr. Austin to show him the electronic device that he had used in the haul truck. 

Id. at 1-2. 

In the Court’s estimation, another way to express Ramsey’s “obstinate refusals” is that 

Ramsey refused to prove his innocence. While Vulcan had full authority to search Ramsey’s haul 

truck and had been invited repeatedly by Ramsey to search his pickup truck, Vulcan refused to 

exercise those available options. The Court has already expressed that Ramsey wisely did not 

take the bait to produce the device. Failing that strategy, with no proof that Ramsey was using a 

cell phone that day, Vulcan would have the case turn on whether its personnel believed that 

Ramsey was using a cell phone while in the mine’s haul truck. Id. at 2. 

 Apart from their central contention — Vulcan’s belief that Ramsey was using his cell 

phone on December 1, 2015 — Vulcan refers to an event more than two years earlier, in October 

2013, when it issued Ramsey a written reprimand for talking on a cell phone while at work. R’s 

Br. at 4. They use this relatively ancient event to bootstrap the claim that it was a violation to 

have or use a cell phone in his haul truck, and that Ramsey knew of the policy, although even 

																																																													 37 The Secretary makes the point that, if an iPod was prohibited, it would have made no 

sense for Vulcan to interrogate Ramsey so many times, as he told them he was using an iPod. 

The record is teeming with references that Vulcan’s policy applied to cell phones alone. 

39 FMSHRC Page 1063
Vulcan admits that only “partially” supports its claim that Ramsey violated the policy on 

December 1, 2015. This argument confuses whether Ramsey knew of the cell phone ban policy 

with whether he actually violated the policy on that December 2015 date. In fact, Ramsey never 

contended that he didn’t know of, nor that he didn’t understand, the policy regarding cell phone 

use at the mine. Therefore, such points on the part of Vulcan are non-issues here. Again, the 

evidence is that Vulcan never established that Ramsey was using his cell phone in his haul truck 

that day, and no amount pointing to other issues changes that. 

 Vulcan’s brief then turns to the “lock out –tag out” incident. Although the Court has 

discussed this at some length already, a few points are worth revisiting. Vulcan’s issue with this 

incident, in which Ramsey admits that he lost a key to a lock, is that “[d]uring the second 

interview, management officials concluded that Complainant was uncooperative, gave silly and 

disrespectful answers to questions, and used profanity and made comments which they felt were 

threatening in nature.” R’s Br. at 5. Vulcan then contends that “[a]fter these interviews, 

Complainant burst into Mr. Austin’s office and demanded the telephone number for the Vice 

President of Vulcan and the ‘miners’ rights’ telephone number while Mr. Sherrod and Mr. Austin 

were on a conference call with Mr. Huffman.” Id. at 5-6. For proof of their claim of Ramsey’s 

outrageous behavior, Vulcan points to the testimony of Mr. Huffman. It needs to be pointed out 

that Mr. Huffman was not even present in Austin’s office when the alleged behavior occurred. 

He was only on the phone. A poor prognosticator, Huffman dramatically testified that he “feared 

that the next sound he heard would be gun shots.” Id. at 6. Suffice it to say, there were no gun 

shots fired, nor was there even a gun present. At any rate, the upshot of the lock and key tale was 

that Ramsey “received a Final Warning and Disciplinary Suspension for his ‘abusive and 

harassing conduct’ and for failing to abide by Vulcan’s policy regarding compliance and 

cooperation with a company investigation.” Id. The tape (or more accurately the recording) of 

claimed abusive and harassing conduct tells the tale, so to speak, and it does not establish such 

conduct. Noteworthy also is that it was Ramsey who recorded the session, not Vulcan. 

 While the Court appreciates the role of full-throated advocacy, and respects the effort 

Respondent’s Counsel put forth in that regard, that does not mean that hollow arguments should 

be presented. One such example is Vulcan’s assertion that the “Complainant was warned about 

his pattern of tardiness.” Id. at 7. By that claim, Vulcan’s idea of tardiness is not just to show up 

for work on time but rather to be at work before the day begins. Of course, Vulcan does not point 

to such a requirement in its work policy, nor did it advise that employees are paid for starting 

work early. Vulcan also points to the September 11, 2105 cell phone incident in which Ramsey 

used his cell phone to contact his mother. Id.; Ex. S-5. The point of this incident is difficult to 

fathom, as Vulcan did not use the event as part of its justification for firing Ramsey. If, for the 

sake of argument, it demonstrates an instance of Ramsey violating the cell phone policy at that 

time, it does not excuse Vulcan’s failure to show that Ramsey used his cell phone on December 

1, 2015. 

 Arriving in its brief at the event which prompted Vulcan to terminate the Complainant, 

Ramsey’s, alleged, conduct of using a cell phone on December 1, 2015, while he was operating a 

mine haul truck, the problem with Vulcan’s theory is that it presents the same deficiency noted 

39 FMSHRC Page 1064
earlier — Vulcan’s claim of Ramsey’s cell phone use was never credibly established, though in 

theory it was completely within their ability to irrefutably make their case. Clearly, Vulcan 

wanted to avoid finding out that Austin was wrong. Thus, it is not surprising that Vulcan 

declined Ramsey’s invitation, permitting them to establish that their claim was valid. It is 

undeniable that Vulcan had full authority to inspect the haul truck, and Ramsey encouraged them 

to search his personal pickup truck by affording them permission to conduct such a search. 

Respondent effectively concedes it has no proof that Ramsey was using his cell phone on that 

date, acknowledging that Austin “believed that handheld electronic device to be a cell phone.” 

R’s Br. at 8. As Vulcan expresses it, 

the critical issue is whether Vulcan’s personnel believed that Complainant had 

violated Vulcan’s policy at the time in question when Keith Austin and other 

management personnel concluded that Mr. Ramsey used a cell phone while in the 

haul truck in violation of Company policy. The credible evidence demonstrates 

that Mr. Austin and other management officials sincerely held this belief at the 

time in question based upon what they knew at the time. 

Id. at 13-14 (emphasis added). 

Vulcan expresses this unusual position, that Vulcan believed Ramsey was using a cell 

phone in the mine’s haul truck, as a “fully plausible” conclusion. Id. at 15. Again, mere belief is 

not enough, particularly where, if Vulcan really believed its claim, such proof, in theory, was 

readily at hand. 

 To remove any doubt that Vulcan’s position is that belief, not proof, can carry the day, 

Vulcan, acknowledging that the Court might conclude that “the device that Mr. Ramsey had in 

the haul truck on December 1, 2015, was in fact an ipod and not a cell phone,” submits that issue 

is not the material issue for decision in this case; rather, the critical issue is 

whether Vulcan’s personnel actually believed that Complainant had a cell phone 

in the haul truck on the day in question. So long as such belief was sincerely held 

and was plausible, it is not material whether it was shown to be correct as a 

factual matter through the hearing process. 

Id. at 16 (emphasis in original). 

Vulcan’s position would have its belief overtake the facts. In taking that stance, Vulcan 

asserts that for the Commission to “substitute its own justification for disciplining the miner,” 

amounts to imposing its own business judgment over the operator’s actions.” R’s Br. at 17. This 

is nothing more than an attempt at legerdemain, because it tries to divert attention from the 

Court’s determinations as to what the evidence established, and what it did not establish, as 

augmented by its credibility determinations. 

Even Vulcan’s citation to Cumberland River Coal Co. and its quoting from that Court’s 

observation that “ ‘[i]n examining the mine operator's justification for terminating a miner, the 

court must examine ‘whether the reasons are plausible, whether they actually motivated the 

operator's actions, and whether they would have led the operator to act even if the miner had not 

39 FMSHRC Page 1065
engaged in protected activity,’” draws the incorrect conclusion from that decision, because it 

claims that the Commission “is limited to a ‘restrained’ examination of the mine operator's 

justification and may not insert its own justification.” Id. at 17, citing Cumberland River Coal 

Co., 712 F.3d 311 (6th Cir. 2013). However, the mine’s justification must be sound and 

supported by facts, not beliefs, sincere or invented. 

In Vulcan’s Response Brief it notes that the Court determined at the hearing that the 

Secretary can’t build its case on the predicate events regarding the lock and key incident. 

Response at 1, citing Tr. 217. That remains true: the Secretary had to prove that Vulcan’s firing 

of Ramsey was based on his protected activity and that a nexus was established between them. 

The Secretary met those burdens. However, the Court would note that doesn’t mean that those 

earlier events are to be ignored entirely, as they provide informative context for the event which 

Vulcan used to fire Ramsey. Therefore, the Court does not agree with Vulcan’s claim that 

Ramsey did not engage in protected activity in July 2015, when he asked for the telephone 

number for the vice president of Vulcan, and for the telephone number for the “miners’ rights.” 

Id. at 2. Certainly, as to the latter request, it was protected and the Court rejects Vulcan’s claim 

that Ramsey’s request for that information was “because he was ‘just tired of being 

interviewed.’” Id. at 3. 

 Although Vulcan has urged that the Court put aside the lock and key incident, it cannot 

resist assailing Ramsey’s earlier filed mine act discrimination complaint of August 2015. That 

first-filed complaint was precipitated by the lock and key incident, but in the context of his 

second discrimination complaint, the matter at issue here, Vulcan asserts it has refuted any 

“inference of a causal link between the two events.” Response at 7. It theorizes that if Vulcan 

wanted to retaliate against Ramsey for filing his first discrimination complaint, it could have 

acted against him for the September 2015 cell phone incident involving the circumstances of a 

call between Ramsey and his mother. Vulcan asserts that its forbearance over the September 

2015 event, coupled with the “approximately two more months beyond [the September] incident, 

weakens any possible inference of a discriminatory motive.” Id. at 7-8. The Court does not share 

Vulcan’s characterization of those events. To the contrary, weak or strong, Vulcan would have 

had an aversion to disciplining Ramsey in September, coming on the heels of his first 

discrimination filing. By December however, it may have concluded that a sufficient interval had 

passed to inoculate it against the appearance of retaliating against Ramsey for his August 

discrimination complaint. 

Implicitly recognizing the weakness of its argument, Vulcan asserts that its decision to 

fire Ramsey was in no part motivated by his earlier discrimination filing and returns again to its 

claim that Vulcan managers’ believed that Ramsey was using his cell phone on December 1st. 

Vulcan states that Ramsey’s only protected activity on that date was his request for the mine’s 

identification number. To deal with that, Vulcan claims that Austin “testified unequivocally” that 

Ramsey did not ask for the mine’s identification number and that Ramsey made no mention of 

becoming a miners’ representative that morning. Id. at 3-4. 

Contrary to Vulcan’s assertion, Austin’s claims and Vulcan’s characterization that Austin 

testified “unequivocally” about the issue, do not settle the matter, as the competing versions of 

39 FMSHRC Page 1066
what was said that day are matters of credibility determinations for the Court. In that regard, the 

Court finds that Ramsey’s account was the only credible version. The Court, closely observing 

both witnesses when they testified, had no ambivalence about this determination – it was 

Ramsey who was credible, not Austin.38 

Conclusion 

As discussed above, Ramsey clearly engaged in multiple instances of protected activity. 

These instances, which also had a cumulative effect, were close in time to the adverse action of 

Ramsey’s firing on December 1, 2015 and one such instance was on the same morning as the 

date he was effectively fired. 

 Ramsey’s complaint of discrimination, filed on December 11, 2015, asserted that on 

December 1, 2015, while Ramsey was working his shift at Vulcan, his boss, Keith Austin, sent 

him home, claiming that he had seen Ramsey on his cell phone. Official Record, Temporary 

Reinstatement Proceeding for Ramsey, Exhibit B. Following an investigation, MSHA special 

investigator Michael LaRue declared that on December 1, 2015, Ramsey sought information 

from Austin so that he could apply to become a miners’ representative. Austin did not supply the 

information and later that same morning Austin accused Ramsey of using his cell phone while 

driving the mine’s haul truck. 

Haul truck drivers, like Ramsey, were allowed to play the radio installed in their trucks 

and to talk on the trucks’ CB radios too. Thus, while the Court has found that Ramsey did not 

use his cell phone while in the mine’s haul truck on December 1, 2015, it is still instructive that 

drivers were allowed to listen to music on the truck radio while performing their jobs. Further, 

use of the Vulcan-installed CB radio in its vehicles provided a virtual, though limited range, 

truck telephone. 

Ramsey was suspended that day and fired three days later. Vulcan’s “Notice of 

Disciplinary Termination,” signed by Austin alone, asserts that “[o]n the morning of December 

1st, I personally observed you repeatedly using an electronic communications device while 

operating a haul truck at the Bristol quarry. When confronted, you told me that you were not 

using a cell phone, but were using an iPod.” Gov. Ex. S-7. Briefly, but without distortion, the 

letter from Austin goes on to state that Ramsey refused to show Austin the device and it asserts 

that in October 2013 and on September 11, 2015, Ramsey had other incidents about cell phone 

use while on the job. Austin’s letter then relates that on September 28, 2015, that is to say, after 

the September 11th incident, Vulcan reminded the entire crew about its policy prohibiting the 

use of phones on the job. 

 In Austin’s letter and recurrently during the hearing and in its post-hearing briefs, as 

discussed previously, Vulcan repeatedly tried to blur what devices were prohibited while 

working under the vague term of “electronic communication devices.” Austin’s letter of 

termination continued that theme of obfuscation but, as a whole, any rational reading of that 

																																																													 38 The remainder of Vulcan’s Response brief is a regurgitation of arguments it advanced 

in its initial brief and therefore will not be repeated. 

39 FMSHRC Page 1067
letter boils down to a policy prohibiting cell phone use. For example, Austin’s letter alleges that 

Ramsey “continued to deny cell phone use” and he reveals that electronic communication 

devices means cell phones as the specific examples he cites are “cellular phones, Blackberries, 

Palm Pilots, Treos, IPhones, IPads,” each of which are cell phones. Gov. Ex. S-7. Notably, an 

iPod is not included as a prohibited device in Austin’s letter. 

It is also true that Vulcan generally, and Austin particularly in his termination letter to 

Ramsey, after making it clear that the policy was about cell phone use, tried to leave wiggle 

room for themselves by employing the phrase that the policy also prohibited “other electronic 

devices on the job.” Ex. S 7. The Court does not accept these stratagems. 

Austin’s letter of termination to Ramsey works under a fundamental and essential 

premise — that Ramsey was using a cell phone while operating a mine haul truck on December 

1, 2015. From that premise, Austin’s letter then moves to his determination of the “appropriate 

level of discipline to apply,” citing a July 30, 2015 incident for “inappropriate and disruptive 

conduct” toward Austin and one of Vulcan’s Safety Representatives. Ex. S-7-2. That July 2015 

incident was invoked by Austin as the sole springboard to justify Ramsey’s termination. By 

Vulcan’s own statement, the action to fire against Ramsey came about because of his alleged cell 

phone use on December 1, 2015. Distinct from the alleged cell phone use violation, the discipline 

for the alleged violation relied essentially on the July 30th incident, alleging bad conduct. It is 

noted that, as with its attempt to vaguely infer that electronic communication devices covered 

more than cell phones, Vulcan tried to roll into the mix that Ramsey’s “prior record of 

performance, conduct and discipline” were also considered, but the only specific item identified 

was the July 30, 2015 incident. 

Thus, in a nutshell, Ramsey was fired on Vulcan’s claim that he was using his cell phone 

while on the job on December 1, 2015. There were two stories presented on the issue of whether 

Ramsey was using a cell phone on that day while operating the mine’s haul truck – Ramsey’s 

testimony and Austin’s. As between the two, the only credible testimony was Ramsey’s. Vulcan 

never established that Ramsey was, in fact, using his cell phone. Instead, the credible evidence is 

that Ramsey was using a music player, his iPod, which does not function as a cell phone. Having 

failed to establish that Ramsey was using a cell phone, Vulcan’s case collapses. 

Further, the Court rejects Vulcan’s stance that it was up to Ramsey to establish his 

innocence. While Vulcan claimed that Ramsey could simply go to his personal vehicle, a pickup 

truck, and bring the phone to them, as has been noted this ignores that Vulcan certainly had the 

authority to search the haul truck Ramsey was using, and it avoids Ramsey’s unconditioned and 

multiple offers for Vulcan to search his pickup truck. 

The Court’s determinations are based on the record evidence and the Court’s credibility 

determinations. With that in mind, the evidence establishes that Ramsey stood out, within the 

small group of hourly employees at the Bristol quarry because of his willingness to bring safety 

issues to the attention of his supervisor. When Ramsey felt he was being singled out unfairly 

during a lock and key investigation, he filed a discrimination complaint preceding the one at 

issue today, thereby raising his visibility as a miner who actively exercised rights protected under 

the Act. Ramsey engaged in protected activity when he complained about his sweatshirt 

39 FMSHRC Page 1068
becoming ensnared in a moving machine part and by his inquiry to Vulcan management about 

the information he needed to apply as a miners’ rep. 

 The Court finds that Austin was not receptive to addressing safety issues that Ramsey 

raised. For example, he failed to fill out a near miss form after Ramsey reported one to him. Tr. 

162-63. Austin began to consider Ramsey as a problem for the mine, as evidenced by the fact 

that he began taking notes on his conduct in May 2015. At that point Ramsey had been working 

at Vulcan for over a year. Austin’s close scrutiny, tied in time as it was to Ramsey’s assertions of 

safety issues and miners’ rights, supports the Court’s conclusion that management saw Ramsey 

as “troublesome” due to his exercise of protected activities. As the Secretary has noted, the 

Commission has held that hostility towards a miner who exercises his or her right to make safety 

complaints is a circumstantial indicator of discriminatory intent. Sec. Br. at 13, citing Jungers v. 

U.S. Borax, 15 FMSHRC 300, 308 (Feb. 1993).39

 Considering all of the evidence, including, as mentioned above, the Court’s credibility 

assessments and in particular the Court’s evaluation of the believability of Ramsey as compared 

to Austin, the Court finds that Ramsey was, by far, the more credible witness. This conclusion 

was reassessed and reaffirmed by the Court when it had the opportunity to hear and observe the 

testimony of Austin and Ramsey again, when the hearing reconvened in Charlotte for the 

purpose of trying to fill in gaps in the transcript of the original, first, day of the hearing. The 

point is that the Court determined that its original credibility determinations were correct, and 

that Ramsey was more credible than Austin. Accordingly, the Court finds that Ramsey was 

truthful in his testimony that he was not using a cell phone on December 1, 2015 and that 

Austin’s cell phone video capture of Ramsey while in his truck at that time utterly failed to show 

otherwise. Upon those findings and for the other reasons articulated in this decision, the Court 

finds that Ramsey did not violate the Respondent’s ETD policy. Vulcan, therefore, had no 

legitimate basis to fire Jerry Ramsey. 

 Order

Wherefore, finding that the Secretary established that Jerry Ramsey engaged in protected 

activity, that Vulcan took adverse action for that activity and that Vulcan failed to establish any 

viable defense, the Court ORDERS the Respondent to reinstate Jerry Ramsey to his former 

position at the Bristol Quarry and to restore all benefits40 due, so that he is fully returned to his 

position as if he had never been terminated. Further, Vulcan is ordered to expunge all references 

to the termination of the Complainant, and the asserted reasons therewith, from his personnel 

file. 

																																																													 39 “Circumstantial indicia of discriminatory intent by a mine operator against a 

complaining miner include the following: knowledge by the operator of the miner's protected 

activities; hostility towards the miner because of his protected activity; coincidence in time 

between the protected activity and the adverse action complained of; and disparate treatment of 

the complaining miner by the operator.” Id. (internal citations omitted). 

40 Such restoration will include, for example, the period of compensation between 

Ramsey’s unlawful discharge and the date of economic reinstatement of February 11, 2016. 

39 FMSHRC Page 1069
Within ten (10) days of the issuance of this Decision, the Respondent SHALL post this 

decision on a bulletin board at the mine that is visible to every employee, along with a visible 

and clear notice explaining that: the Respondent has been found liable for discrimination against 

an employee; that such discrimination shall be remedied; and that it will not reoccur in future. 

The notice shall also inform all employees of their rights in the event that they experience 

workplace discrimination. 

Pursuant to Procedural Rule 44(b), a copy of this decision will be sent to the office of 

the applicable Regional Solicitor so that the Secretary may take the actions required by the 

rule. 29 C.F.R. § 2700.44(b). 

The Parties are hereby also ORDERED to confer within 21 days of the issuance of this 

Decision for the purpose of reaching an agreement on the specific actions and monetary amounts 

that will constitute the complete relief to be ordered in this matter. If an agreement is reached, 

the parties shall submit it within 30 days of the issuance of this Decision. 

If an agreement cannot be reached, the parties are FURTHER ORDERED to submit to 

this Court, within 30 days of the issuance of this Decision, their respective positions concerning 

the issues on which they cannot agree, along with supporting arguments, case citations, and 

references to the record. For areas involving monetary relief on which the parties disagree, they 

shall submit specific proposed dollar amounts for each category of relief. In the rare event that 

there are factual disputes requiring an evidentiary hearing, the parties shall submit a joint hearing 

request and identify those issues. 

The Court retains jurisdiction of this matter until a final Decision is issued, disposing of 

all specific remedies to which the Complainant is entitled. Accordingly, this Decision shall not 

become final until an Order has been entered granting any specific relief and awarding any 

monetary damages which are appropriate. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

39 FMSHRC Page 1070
Distribution: 

Thomas J. Motzny, Esq. and Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219 

Stanley E. Keen, Esq., Regional Solicitor, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, GA 30303 

Mr. Jerry Ramsey, 1948 Hickory Tree Road, Bluff City, Tennessee 37621 

John B. Flood, Esq., Lauren M. Marino, Esq., and William K. Doran, Esq., Ogletree, Deakins, 

Nash, Smoak & Stewart, P.C., 1909 K Street NW, Suite 1000, Washington, DC 20006 

39 FMSHRC Page 1071
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHE: 412-920-7240 / FAX: 412-928-8689

May 9, 2017 

 

DECISION 

Appearances: Tony Oppegard, Esq., Lexington, KY, & Wes Addington, Esq., 

Appalachian Citizens’ Law Center, Whitesburg, KY, Representing the 

Complainants 

Marco Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True, 

Lexington, KY, Representing the Respondent 

Before: Judge Lewis 

MICHAEL WILSON, 

 JUSTIN GREENWELL & 

 BRANDON SHEMWELL, 

 Complainants, 

 v. 

ARMSTRONG COAL COMPANY, INC., 

 Respondent. 

BRANDON SHEMWELL, 

 Complainant, 

 v. 

ARMSTRONG COAL COMPANY, INC., 

 Respondent. 

JUSTIN GREENWELL, 

 Complainant, 

 v. 

ARMSTRONG COAL COMPANY, INC., 

 Respondent. 

DISCRIMINATION / 

INTERFERENCE PROCEEDING 

Docket No. KENT 2015-673-D 

MADI-CD 2015-18 

Mine: Parkway Mine 

Mine ID: 15-19358 

DISCRIMINATION / 

INTERFERENCE PROCEEDING 

Docket No. KENT 2016-96-D 

MADI-CD 2015-14 

Mine: Parkway Mine 

Mine ID: 15-19358 

DISCRIMINATION/ 

INTERFERENCE PROCEEDING 

Docket No. KENT 2016-108-D 

MADI-CD 2015-15 

Mine: Parkway Mine 

Mine ID: 15-19358 

39 FMSHRC Page 1072
These cases are before me upon complaints of discrimination and interference brought by 

Michael Wilson, Justin Greenwell, and Brandon Shemwell (“Complainants”), pursuant to § 

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

STIPULATIONS 

A. Armstrong is subject to the Federal Mine Safety & Health Act of 1977. 

B. Armstrong mines and produces coal at the Parkway Mine that enters into and has 

an effect upon interstate commerce within the meaning of the Federal Mine Safety 

& Health Act of 1977. 

C. Armstrong is subject to the jurisdiction of the Federal Mine Safety & Health 

Review Commission and the Administrative Law Judge has the authority to hear 

this case and issue a decision. 

Resp. Amended Prehearing Report, 4; Tr. 18-19. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact are based on the record as a whole and my careful observation of the 

witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into 

consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, 

in each witness’s testimony and between the testimonies of the witnesses. In evaluating the 

testimony of each witness, I have also relied on his or her demeanor. Any failure to provide 

detail as to each witness’s testimony is not to be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not 

required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). 

I. Summary of Testimony 

A. Brandon Heath Shemwell 

The Complainant, Brandon Heath Shemwell, appeared and testified at hearing. Tr. 45. He 

had worked at Parkway Mine since April 2009 in various positions, including roof bolt operator, 

“Ram” car operator, scoop operator, and bolter. Tr. 46. Shemwell had worked in the coal 

industry for 11 years, and was designated as a miners’ representative on February 28, 2014. Tr. 

45, 47. He had become a miners’ representative because he had become concerned about safety 

issues at Parkway Mine, including his fear that Respondent had been cheating in its dust 

sampling procedures. Tr. 48. 

After he had become a miners’ representative, Shemwell noticed a change in attitude 

toward him by both management and coworkers. Tr. 48. Some of the men shunned him. Tr. 48. 

39 FMSHRC Page 1073
During the 14 months prior to June 11, 2015, Shemwell had frequently accompanied 

MSHA inspectors—“pretty much every time [he] was asked.” Tr. 50. During MSHA inspections, 

Shemwell would note safety issues that the MSHA inspector may not have noticed. Tr. 50-51. 

On one occasion, he had pointed out rub rails that had gone off a car, which led the MSHA 

inspector to order the car shut down. Tr. 51-52. 

Management would become upset at Shemwell’s pointing out of safety violations to 

MSHA inspectors. Tr. 52. A superintendent, Danny Thorpe, “cuss[ed] and rave[d]” at him. Tr. 

52. The safety managers, Steven DeMoss and John T. Scott, had also become upset at Shemwell 

for pointing out safety violations. Tr. 52-53. 

On June 11, 2015, the date at issue, Shemwell had been asked by DeMoss if he wanted to 

travel with the federal inspector. Tr. 54. Shemwell was instructed to call Danny Presley in order 

to arrange a ride with the inspector on a four-man buggy. Tr. 55-57. Shemwell usually 

accompanied the inspectors the entire time they were on mine property, including the time that 

MSHA inspectors would write up any citations. Tr. 58. 

Shemwell contacted mine employees with a “mine site phone,” which was like a cell 

phone and was issued to each miner who had his own extension number. Tr. 59. On June 11, 

2015, after being told by DeMoss to contact Presley for a ride, Shemwell phoned Presley 12 

times without success. Tr. 60. Presley neither answered the phone nor called Shemwell to 

determine whether Shemwell needed a ride to participate in the MSHA inspection. Tr. 61. 

Shemwell did not have the authority to order someone to give him a ride. Tr. 61. 

Shemwell was finally contacted by John T. Scott who asked him to speak on the phone 

with the MSHA inspector, Alan Frederick. Tr. 62. Shemwell was informed by Frederick that the 

MSHA inspection had been completed and was asked if he had any questions. Tr. 62. Due to 

being so upset over not having been provided a ride, Shemwell did not ask any questions. Tr. 62. 

Shemwell testified that if after this incident Respondent had again failed to provide 

transportation to him for an MSHA inspection, he would not have continued acting as a miners’ 

representative. Tr. 63. 

Shemwell testified that Complainants Justin Greenwell and Michael Wilson had reported 

to him that John T. Scott had stated that MSHA inspectors could not issue citations in situations 

where the safety violation was first discovered by the miners’ representative. Tr. 64. Such a 

position would essentially prevent the miners’ representative from fulfilling his duty to protect 

miners from potential safety hazards. Tr. 65. Further, if MSHA would not issue citations in such 

situations, there would be no assurance that the company would abate unsafe conditions in a 

timely fashion. Tr. 65. Shemwell mentioned the missing rub rails violation as a case in point. 

Only after Shemwell had pointed out the unsafe condition to an MSHA inspector, and only after 

Armstrong was cited, did Respondent finally abate the condition. Tr. 65-66. 

Shemwell believed that Respondent had failed to timely notify him of and provide him 

with a ride to the MSHA inspection on June 11, 2015, because they had been irritated with him 

39 FMSHRC Page 1074
for having fulfilled his miners’ representative duties and because they were annoyed with Justin 

Greenwell for having pointed out safety problems a few days earlier. Tr. 67-69. 

On cross examination Shemwell agreed that the rub rail problem had been in his and 

Greenwell’s units. Tr. 73. Although DeMoss had not liked it when Shemwell pointed out safety 

violations to MSHA inspectors, he had never “laid hands” on Shemwell. Tr. 73. DeMoss’s 

changed attitude toward Shemwell did not cause him to give up being a miners’ representative, 

but did make him “hesitant’ and had bothered him. Tr. 73. Shemwell, however, agreed with his 

prior deposition testimony that he did not care about DeMoss’s attitude and could deal with it. 

Tr. 74. Neither of Respondent’s employees, Thorpe and Scott, had directed anger toward 

Shemwell personally. Tr. 74. Shemwell was not prevented from doing his job as miners’ 

representative despite Armstrong’s unhappiness over his pointing out of safety problems. Tr 75. 

During the “normal course of action” the company would call Shemwell on his mine cell 

phone to notify him of an MSHA inspection or call his boss to arrange a ride for him. Tr. 78. 

When Inspector Frederick had informed Shemwell that the MSHA inspection had been 

completed, Frederick told him that he did not know what had happened regarding the failure to 

contact Shemwell. Tr. 78-79. 

Shemwell agreed that he had expressed no concerns to Frederick during their 

conversation, and neither did he question Respondent nor MSHA on the date at issue. Tr. 79. 

According to company cell phone records, Shemwell had been able to contact Justin 

Greenwell’s number on June 11, 2015. Tr. 79-80; See also JX-1. 

Although Scott’s reported statements made him hesitant, Shemwell continued in his 

miners’ representative duties. Tr. 82. 

B. Justin Neil Greenwell 

The Complainant Justin Neil Greenwell also appeared and testified at hearing. Tr. 85. 

Greenwell had worked for approximately four years for Respondent before quitting his 

employment a year previously. Tr. 86. He had worked nine years total in the coal industry. Tr. 

86. Complainant had initially worked as an underground roof bolt operator for Respondent, later 

being moved above ground as a loader operator. Tr. 86. After discovering he had black lung 

disease, Greenwell had exercised his Part 90 right to work in a less dusty environment.1 Tr. 87. 

Greenwell had become a designated miners’ representative on February 28, 2014, after 

becoming concerned about various safety issues at Parkway mine, including the tampering with 

of a dust pump. Tr. 87. 

 1

 On cross examination, Greenwell indicated that he had undergone a drug test two days 

before he had quit work. Tr. 113-115. He further confirmed that he had convictions for assault, 

possession of marijuana, and public intoxication. Tr. 114. He further confirmed that he had been 

involved in an incident at work, shortly before his resignation, in which he had backed into a 

guy-wire, cutting all power to the mine. Tr. 116-117. 

39 FMSHRC Page 1075
Between February 28, 2014, and June 11, 2015, Greenwell frequently traveled with 

MSHA inspectors. Tr. 89. Greenwell would watch and observe the MSHA inspection and be on 

the look-out for unsafe conditions. Tr. 89, 92. Miners would also approach him to relay their 

concerns about safety issues to the MSHA inspector. Tr. 90. 

Greenwell also noticed the rub rail problem and asked an MSHA inspector, who was 

uncertain as to safety implications to enquire into such, which ultimately lead to an MSHA 

citation. Tr. 92. 

Greenwell also noted a change in management’s attitude toward him after he had become 

a miners’ representative: they had become “angry” at him. Tr. 92. An example of the hostile 

attitude of management was the action of a second shift foreman, Jeff Wilkins, toward 

Greenwell. The foreman demanded that Greenwell stay by the MSHA inspector’s side−even 

after the inspector had finished his inspection and had told Greenwell that he could leave. 

Wilkins had gone so far as to order Greenwell to accompany the MSHA inspector to the 

bathroom and shower. Tr. 93-94. Greenwell felt Respondent was attempting to discourage him 

from accompanying MSHA inspectors on their inspections. Tr. 94. 

Mine management would advise Greenwell that it wasn’t his job to point out safety 

problems. Tr. 95. 

Greenwell was also told that it imposed a “hardship” when he left his job duties to 

accompany MSHA inspectors. Tr. 96. One section foreman, Billy Harold, called Greenwell a 

“slow walker,” advising Greenwell to think about what was more important−his job or his 

miners’ representative duties. Tr. 96-97. On another occasion, Greenwell had reported 

management’s failure to hold a required fire drill leading to a citation. Tr. 98. When the drill was 

eventually held, Complainant was singled out during the training. Tr. 98. 

On June 11, 2015, Greenwell had been asked by Steve DeMoss if he’d like to accompany 

an MSHA inspector. Despite agreeing to such, Greenwell never received a call. Tr. 99. Only later 

in his shift did he happen to notice MSHA inspector, Jerry Walker, going into the bathhouse. 

Upon learning that Walker had already completed his inspection, Greenwell asked why he hadn’t 

been called. Walker indicated that “they didn’t have a ride” for Shemwell and that a company 

representative had accompanied the inspector rather than Greenwell. Tr. 101-102. 

Greenwell had pointed out roof safety issues to an inspector on June 10, 2015, and he felt 

that this report motivated management’s decision to not contact him on June 11, 2015. Tr. 103-

104. 

Greenwell had also pointed out a malfunctioning methane monitor to an MSHA 

inspector, which he also felt motivated management’s decision to not contact him. Tr. 105-106. 

On July 8, 2015, Greenwell was traveling with an MSHA inspector, Charles Ramsey, 

along with Complainant miners’ representative, Michael Wilson. Greenwell had noted some 

loose roof bolts, which he had pointed out to Inspector Ramsey. Tr. 108-110. Greenwell also 

pointed out to the inspector a piece of machinery that was leaking oil. Tr. 110. Greenwell heard 

39 FMSHRC Page 1076
John T. Scott express management’s position to Ramsey that an MSHA inspector could not issue 

a citation if a miners’ representative had first pointed out the safety violation. Tr. 111. 

Such a position, in Greenwell’s mind, would defeat the purpose of traveling with MSHA 

personnel during inspections because it would mean that no violation would be abated if first 

seen by the miners’ representative. Tr. 112. Greenwell had sometimes not traveled with MSHA 

inspectors because of this. Tr. 112-113. In fact he eventually quit because he was tired of all the 

hostility directed toward him as a miners’ representative. Tr. 113. 

Greenwell agreed that neither DeMoss nor Scott had ever directly spoken to him in a 

hostile manner. Tr. 119. DeMoss had no problem with Greenwell traveling with an MSHA 

inspector on June 11, 2015. Tr. 119. Greenwell had sometimes declined to participate in MSHA 

inspections. Tr. 120. Nobody from Armstrong had ever told Greenwell on June 10, 2015, that 

there was no room for him to travel with MSHA inspectors. Tr. 121. Greenwell did not attempt 

to call management regarding such. Tr. 122-123. 

Complainant again asserted that he never knew that Jeremy Walker was underground 

until he saw the inspector at the bathhouse. Tr. 120. Steve DeMoss had told him that the 

inspector had only wanted one person to travel with him. Tr. 127. 

C. Michael Steve Wilson 

Complainant, Michael Steve Wilson, appeared and testified. Wilson, whose nickname 

was “Flip,” had worked in the mines for 40 1⁄2 years, 37 of which as a continuous miner operator. 

Tr. 128. Wilson had become a miners’ representative at Parkway mine in February 2014 and had 

retired from Armstrong in April 2015. Tr. 129. Complainant had started working for Respondent 

in 2009 and had become a miners’ representative “to make it better for the young guys.”2 Tr. 

130. Prior to becoming a miners’ representative, Wilson had gotten along well with management. 

Tr. 131. However after Wilson became a representative, he felt that management had “turned on” 

him, treating him like “a piece of shit.” Tr. 131. 

Wilson filed for Part 90 after he had become a miners’ representative. Tr. 132. He began 

to operate an above ground hand loader, leaving his underground continuous miner position. Tr. 

132. Wilson testified that various members of management had become hostile toward him, 

including Danny Thorpe, John T. Scott, Steve DeMoss, Jeff Wilkinson, Danny Presley, and 

Keith Casebeer. Tr. 133. Wilson testified Respondent’s employees engaged in various acts of 

vandalism toward him, including writing “die rat” on his locker and super-gluing his lock. Tr. 

134. 

After his retirement in April 2015, Wilson continued working as an unpaid miners’ 

representative, traveling 25-30 miles each way from his residence to Parkway mine. Tr. 134-135, 

149. As a non-employee miners’ representative, Wilson still regularly traveled with MSHA. Tr. 

135. During MSHA inspections, Wilson would point out possible safety violations. Tr. 136. 

 2

 On cross examination Wilson conceded that he himself had violated various safety 

regulations. Tr. 141-142. However, he asserted that he had taken “deep cuts’ in the past at 

management’s urging. Tr. 146-148. Wilson further admitted that he had been convicted of five 

counts of assault and receiving stolen property in the distant past. Tr. 142. 

39 FMSHRC Page 1077
On July 8, 2015, Wilson traveled with MSHA Inspector Charles Ramsey, Justin 

Greenwell, and John T. Scott. Tr. 137. Complainant(s) noticed some loose roof bolts (“pins”), 

which they pointed out to the MSHA inspector. Tr. 137-138. John T. Scott objected to any 

citations being issued on the basis that federal inspectors could not issue citations in situations 

where the violation was first discovered by a miners’ representative. Tr. 138-139. 

Wilson had not stopped traveling with MSHA inspectors despite management’s changed 

attitude. Tr. 144. 

D. Steven James DeMoss 

Steven James DeMoss appeared and testified at hearing on behalf of Respondent. 

DeMoss was safety manager at Parkway mine in June 2015. Tr. 151. He had worked in 

the mining industry since 2002, first working as a halster on a bolter and then pinner. Tr. 153. He 

began working at Parkway mine in approximately 2009, working as a bolt man, pin man, ram car 

operator, belt examiner, and face boss. Tr. 154. Toward the end of 2013 he became a safety 

analyst for Respondent. 

In June 2015 Armstrong used a miners’ representative log to keep track of the MSHA 

inspections that each miners’ representatives had accompanied and which miners’ representative 

was next in line. Tr. 156. A record was kept of the miner’s names, whether they had traveled, or 

whether they had declined to accompany the MSHA inspector.3

 Tr. 157. Prior to June 17, 2015, 

Justin Greenwell had declined to travel four times. Tr. 160. 

When an MSHA inspector arrived at Parkway mine, DeMoss would normally ask the 

inspector if he wanted a miners’ representative to travel with him, or the inspector himself would 

request such. Tr. 102. DeMoss would then check to see which miners’ representative was next in 

rotation and ask that person if he wished to participate in the MSHA inspection. Tr. 162. If that 

miners’ representative declined, then DeMoss would continue through the list until someone 

indicated their willingness to go. Tr. 162. The MSHA inspector could also indicate his 

preference as to miners’ representative whom he wished to accompany him. Tr. 163. 

On June 11, 2015, DeMoss noticed that the MSHA vehicle was in the mine parking lot. 

Tr. 164. He asked the miners’ representatives if they wanted to participate in the MSHA 

inspection. Both Shemwell and Greenwell wanted to exercise their rights to travel. Tr. 165. 

DeMoss indicated that both would travel. Tr. 166. After pre-calibrating spotters (gas detectors), 

DeMoss saw District 10 Assistant District Manager, Brian Dodson, and District 10 Field 

Supervisor, Alan Frederick, arrive. Tr. 166. 

DeMoss was asked if there was a miners’ representative available and he indicated 

Shemwell would be participating. Tr. 166. Neither Dodson nor Frederick informed DeMoss 

where they wanted to go in the mine. Tr. 167. 

 3

 “Travel” meant that the miners’ representative exercised his right and requested to 

travel with MSHA. 

39 FMSHRC Page 1078
DeMoss testified that he told Dodson and Frederick that he would call Danny Presley to 

pick Shemwell up. Tr. 167. However either Frederick or Dodson stated to DeMoss that they 

wanted him to call Shemwell directly and to have Shemwell call Presley to pick him up. Tr. 167. 

DeMoss agreed to follow their directives; however, he had never previously notified 

miners’ representatives this way, and no MSHA inspector had ever made such a request in the 

past. Tr. 167. 

DeMoss believed that he may have told Frederick or Dodson that this was not the normal 

way he contacted miners’ representatives regarding MSHA inspections, but didn’t question their 

instructions, believing they were concerned about “pre-notification.” Tr. 167. 

DeMoss then attempted to call Shemwell several times on the mine phone. Tr. 168. 

DeMoss testified “there was not a one hundred percent signal everywhere in the mines.” Tr. 168. 

A miner might be tracked but not be able to talk or text on the phone. Tr. 168. 

Referring to his call log, DeMoss stated he had first called Shemwell at 9:57 a.m. on June 

11, 2015. Tr. 169-170; R-5. Despite 12 calls, DeMoss was unable to reach Shemwell. Tr. 171. At 

10:10 AM Shemwell had successfully phoned DeMoss at which time DeMoss, pursuant to 

MSHA directives, instructed Shemwell to contact Danny Presley to get him a ride. Tr. 172. 

Presley would have been “at the rehab place” where reception would have been poor.4

 Tr. 172. 

DeMoss himself did not accompany the MSHA inspectors; rather John T. Scott did. Tr. 

173. DeMoss estimated that the group, Dodson, Frederick, and Scott, had been underground for 

two to three hours. Tr. 175. DeMoss “figured” that Shemwell had gotten a hold of Presley and 

assumed Shemwell had gotten a ride. Tr. 175. 

DeMoss observed Scott, Frederick, Dodson, and Jeremy Walker emerging from the mine. 

Tr. 176. He asked Scott the whereabouts of Shemwell but Scott did not know. Tr. 176. DeMoss 

later learned that Shemwell had been unable to get a hold of Presley. Tr. 177. 

DeMoss could not recall whether Walker had mentioned anything about a miners’ 

representative not being present nor did he remember Frederick or Dodson saying anything about 

such (at the end of their inspection). Tr. 177. 

DeMoss denied that Armstrong had ever attempted to block miners’ representatives from 

obtaining rides. Tr. 177 

Regarding the July 8, 2015, incident at issue, DeMoss recalled that MSHA inspector 

Ramsey, as well as Greenwell, Wilson, and Respondent’s safety supervisor, Scott, had gone on 

an underground inspection. Tr. 178. 

After the group had returned from the inspection, DeMoss recalled a discussion regarding 

miners’ representatives finding violations before the MSHA inspector noticed the violations. Tr. 

181. He testified that in such instances, “the negligence and gravity wouldn’t be as high as if the 

 4

 The “rehab place” was the area where there had been a roof cave-in. Tr. 174. 

39 FMSHRC Page 1079
inspector actually found it.” Tr. 181. DeMoss testified that John Scott had gotten this information 

from either MSHA inspector, Jeremy Walker, or Alan Frederick. Tr. 182. 

On cross examination DeMoss admitted to some inconsistencies in the miners’ 

representative log. Tr. 182-187; 191-192; R-1. DeMoss agreed that beginning at 6:00 AM on 

June 11, 2015, with MSHA’s arrival at the mine, a miners’ representative had the right to travel 

with him. Tr. 189. He further agreed that MSHA Inspector Walker had been underground for 

several hours without a miners’ representative. Tr. 190. On June 11, 2015, Alan Frederick and 

Brian Dodson were traveling together as MSHA inspectors. Though Brandon Shemwell had 

been designated as the next miners’ representative to travel at 6:45 AM, and despite him having 

been asked by MSHA at 8:45 AM who would be the designated miners’ representative, DeMoss 

first attempted to call Shemwell at 9:57 AM. Tr. 193. 

DeMoss, in explaining the failure to timely contact Shemwell, asserted: “I’m going to do 

what the Assistant District Manager and the Field Supervisor tells me to do.” Tr. 194. 

DeMoss agreed that Shemwell did not have the authority to order other miners to give 

him a ride to where MSHA inspectors might be and was totally dependent upon management to 

provide transportations. Tr. 195. 

DeMoss further agreed that MSHA could not order management to travel with them 

during an inspection. Tr. 197. Nor could management be ordered to provide MSHA with 

transportation. Tr. 197. Neither could management order an employee to give a miners’ 

representative a ride to an inspection. Tr. 198. 

Normally, DeMoss sent Danny Presley or someone else from the safety department to 

pick up a miners’ representative. Tr. 198. DeMoss conceded that neither Frederick nor Dodson 

actually stated that they were worried about “pre-notification.” Tr. 199. 

On June 11, 2015, the chain of command at the mine was the following: (1) Danny 

Thorpe, Superintendent; (2) Chad Paldwin, Mine Manager; (3) DeMoss, Safety Manger; (4) John 

Scott, Safety Analyst. There was a tracking device outside at the Parkway mine which could 

track any miner within 200 feet of where they were. Tr. 201. On June 11, 2015, Presley was the 

day shift foreman and would have been in the rehab area of the belt line where phone reception 

would have been poor. Tr. 202. DeMoss indicated that it was “illegal” for a miner to power off 

his phone while he was in the mine. Tr. 205. 

In order to assure that Shemwell had been able to travel with the inspectors he did one 

thing: he called Shemwell and told Shemwell that he’d need to arrange his own ride. Tr. 206. 

DeMoss speculated that, although Shemwell could not get through to Presley, Scott was 

able to do so because Presley may have been standing in a better reception area. Tr. 207. 

DeMoss had no explanation why Shemwell had been unable to contact Presley in 12 

phone call attempts but he, in the middle of the calls, was able to do so. Tr. 209. 

39 FMSHRC Page 1080
DeMoss agreed that Respondent did not have the right to tell a miners’ representative that 

he could not travel with an inspector because only a two man ride was available to transport a 

MSHA inspector and company’s representative. Tr. 211. 

DeMoss himself was not present during the July 8, 2015, meeting between the MSHA 

inspectors, Safety Analyst Scott, and Complainants Greenwell and Wilson. Tr. 209-210. 

After his recollection was refreshed by means of a prior deposition, DeMoss recounted 

that John T. Scott had told MSHA Inspector Ramsey that Ramsey’s supervisor, MSHA’s Field 

Office Supervisor, Alan Frederick, had stated that citations were not to be issued for any 

violations found by miners’ representatives and only for violations that an inspector had found 

himself. Tr. 212. Frederick told DeMoss that if a miners’ representative finds a violation but the 

MSHA inspector does not see it, a citation cannot be issued on the miner’s word alone: the 

inspector would need to “actually visually see” the citation.5

 Tr. 213. 

DeMoss testified that Scott’s position that MSHA cannot issue a citation if a miners’ 

representative sees the violation first was “crazy.” Tr. 214. However, such a scenario might 

affect negligence and gravity. Tr. 214. 

DeMoss made no attempt on July 8, 2015, or thereafter to talk to Frederick or anyone else 

at MSHA regarding its policy for issuing citations when a miners’ representative first sees the 

violation. Tr. 215. 

On June 11, 2015, if he had called a foreman underground to alert him of MSHA arrival, 

DeMoss agreed this would be advance notice. Tr. 219. Had he called underground, DeMoss 

feared that MSHA might have perceived such as “prenotification.” Tr. 220. Although telling 

Shemwell to call Presley to arrange transportation might also be giving advance notice of a 

MSHA inspection, DeMoss did what MSHA instructed him to do. Tr. 223. 

E. John T. Scott 

At hearing John T. Scott appeared and testified on behalf of Respondent.6 Tr. 224. In 

June 2015 Scott was employed by Respondent at Parkway mine as a safety supervisor. Tr. 226. 

DeMoss was his boss at the time. Tr 226. He had received training as a police officer, had a 

Class A mine foreman paper through the state of Kentucky, was a certified mine emergency 

technician, and held a Kentucky Mine Inspector certification. Tr. 227-228. He had worked in the 

mines as a general laborer, roof bolter operator, car operator, equipment face operator, scoop 

operator, and mine foreman. Tr. 228-229. 

 5

 This testimony, as discussed infra, conflates and confuses two different issues: 

violations based solely upon hearsay miners’ representative reports versus violations based upon 

initial miners’ representatives’ observations subsequently confirmed by MSHA inspectors. 

6

 Scott indicated that his actual middle name was Ellis but that as an adolescent he was 

nicknamed “Trouble,” which stuck. Tr. 225. 

39 FMSHRC Page 1081
Scott began working at Armstrong in 2009 until being terminated on June 24, 2015. Tr. 

230. It was his understanding that miners’ representatives’ job was to represent miners as to 

health and safety issues, with their job duties including accompanying MSHA inspectors. Tr. 

230. Scott indicated that in June 2015, a rotational list was utilized at Armstrong to determine 

what miner would travel with MSHA. Tr. 231. Scott stated that it was ultimately up to MSHA to 

decide which miners’ representative would travel with them. Tr. 232. Various MSHA 

inspectors−Charlie Jones, Josh Orr, Jeremy Walker, Alan Frederick, Charles Ramsey, and 

another unnamed individual−had so advised him. Tr. 232. As Scott understood it, miners’ 

representatives had to stay with the inspector. MSHA Inspector Richie Breen had so advised 

him. Tr. 234. 

On June 11, 2015, there had been a rock fall on the belt line and Scott had accompanied 

MSHA Assistant District Manager Alan Frederick and Brian Dodson underground to examine 

the fall area. Tr. 236. Scott later learned that Inspector Jeremy Walker was also underground but 

did not know this earlier in the day because he “was not supposed to know” where Walker was 

at. Tr. 237. 

Scott heard DeMoss inform Frederick and Dodson that Shemwell was the designated 

miners’ representative and that he would call Shemwell and send somebody after him. DeMoss, 

however, was instructed to call Shemwell, tell him MSHA was at the mine, and that Shemwell 

should call somebody for transportation. Tr. 238. DeMoss explained that normally Respondent 

would go and get the miners’ representative but was told: “you’re not doing it that way...you tell 

him to have somebody come and get him.” Tr. 238. Dodson told DeMoss that he didn’t want 

anyone to know that MSHA was there. Tr. 238. Scott heard DeMoss call Shemwell informing 

him of the MSHA inspection and Shemwell’s need to contact Presley for a ride but did not hear 

Shemwell’s side of the conversations. Tr. 239. 

Scott, Frederick, and Dodson proceeded to the rock fall area where the inspector, Jeremy 

Walker, and a mine examiner rode up. Tr. 240. Frederick instructed Walker to get off his ride 

and to accompany the group to the belt line. Tr. 240. Scott drove a four seat ride with Walker, 

Frederick, and Dodson. Tr. 241. Frederick asked Scott about Shemwell’s location. Tr. 241. Using 

his cell phone Scott reached Shemwell on his first attempt, telling Shemwell that Frederick 

wished to speak to him. Tr. 242. Scott heard Frederick tell Shemwell that the MSHA inspection 

had been completed, that there had been a mix-up on their end, and that he was sorry but they 

were leaving. Tr. 242. Scott questioned Frederick as to Shemwell’s reaction and was told 

everything was fine. Tr. 243. 

Scott denied that he had ever attempted to block miners’ representatives’ rides. Tr. 244. 

As to the incident on July 8, 2015, Scott was with Complainants, Wilson and Greenwell, 

and MSHA Inspector Ramsey when Wilson pointed out something wrong with the door switch. 

Tr. 246. MSHA Inspector Ramsey thereupon issued a citation, which lead to Respondent 

repairing the door. Tr. 246-247. Subsequently Wilson pointed out a high cable in front of a door, 

which resulted in another citation. Tr. 247. Later, Ramsey informed Scott that he was also citing 

Respondent for a roof bolt safety violation, which prompted Scott to enquire who first 

discovered the violation. Tr. 248. 

39 FMSHRC Page 1082
It was Scott’s belief that if he or another miner first discovered a safety violation, this 

was a mitigating circumstance that would affect the gravity because “that shows we’re looking.” 

Tr. 248. Scott asserted, “that’s part of the law,” which had always been told him by all Federal 

inspectors. Tr. 248. If a violation is first identified by a miner or management and is flagged and 

corrected, “it’s not that serious and lessens the gravity.” Tr. 248. 

Scott further asserted that he had in the past been instructed by Alan Frederick and 

Jeremy Walker that if a miners’ representative first noticed a safety problem, this should not be a 

violation. Tr. 249-250. 

Scott conceded that (when Ramsey had cited him for a roof bolt violation) he argued in 

the presence of Greenwell and Wilson that a citation should not be issued because a miners’ 

representative first pointed out the violation. Tr. 250. Citing Frederick’s past opinion, Scott 

further argued that, if Ramsey still followed through with a citation, the gravity should be lower. 

Tr. 250. 

Scott admitted that Greenwell had become upset over his remarks, stating, “a violation is 

a violation.” Tr. 250. Scott reasoned that miners’ representatives are not inspectors: “Their job is 

for the health and safety of the men.” Tr. 250. 

A few days after the incident Scott met Wilson at a “Burger Queen” where Wilson 

advised him that he was filing a complaint which wasn’t against Scott, but “against Federal” for 

their faulty advice. Tr. 250-251. Greenwell subsequently saw Scott at the mine where he told him 

substantially the same thing that the complaint was against MSHA. Tr. 252. 

On cross examination Scott was questioned regarding the discrimination complaint filed 

against Respondent regarding the July 8, 2015, incident at issue. Tr. 254-255. 

Scott admitted that the Complainants’ discrimination complaint’s pleadings were 

accurate in that he had tried to talk MSHA Inspector Ramsey out of issuing a citation for safety 

violations first pointed out by miners’ representatives, arguing that citations could only be filed 

in instances where the MSHA inspector was the first individual to discover the violation. Tr. 

254-255, Exhibit E. Scott again testified he was relying upon information given to him by 

MSHA Inspector Alan Frederick. Tr. 255-256. 

Scott conceded that the inspectors had also seen the violations at issue but only after they 

had been first pointed out by miners’ representatives. Tr. 250. Scott agreed that Wilson was only 

doing his job in pointing out the safety violations: “If you see something wrong, for God’s sake 

tell somebody.” Tr. 251, 256-257. 

Scott further conceded that he did not mention a lowering of gravity or negligence to 

Ramsey on July 8, 2015, but only that Ramsey shouldn’t issue a citation at all because miners’ 

representatives first pointed out the violation. Tr. 257. 

As to the June 8, 2015, incident at issue, Scott had not actually heard Dodson voice 

concerns about “prenotification” to DeMoss. Tr. 259. Although he was a safety assistant, Scott 

39 FMSHRC Page 1083
made no efforts to locate Shemwell when Shemwell did not appear at the rock fall inspection 

site. Tr. 261. Nor did he raise the matter with any other supervisors at the scene. Tr. 262. Scott 

could not cite any statutory provision or rule barring Respondent from sending somebody to pick 

up a miners’ representative. Tr. 264-265. Scott further agreed that MSHA did not have the 

authority to order a particular miners’ representative or management official to accompany it 

during an inspection. Tr. 265. He also agreed that a miners’ representative was totally dependent 

upon the company to provide him with a ride to travel with federal inspectors. Tr. 266. 

Scott further agreed that management could have looked at their tracking system on the 

surface of Parkway mine to determine where Shemwell was on June 5, 2015−as long as the 

system was up and functioning. Tr. 267. 

F. Danny Presley 

At hearing Danny Presley appeared and testified on behalf of Armstrong. Tr. 271. 

Presley worked for Armstrong in June 2015 but was now off work due to a back injury. 

Tr. 272. Presley could not recall any conversations with Shemwell on June 11, 2015. Tr. 275. 

Presley testified that he was on pain medication and had memory problems. Tr. 275. 

II. Contentions of the Parties 

The Complainants argue that Shemwell’s miners’ representative rights were interfered 

with when the Respondent did not notify Shemwell of the June 11, 2015, inspection, did not 

offer Shemwell transportation to meet a separate inspection party on that date, and told 

Shemwell that he had to arrange his own transportation. The Complainants further argue that 

Greenwell’s miners’ representative rights were interfered with when the Respondent did not 

notify Greenwell of the June 11, 2015, inspection and failed to provide him transportation so that 

he could accompany the inspector. Furthermore, the Complainants argue that Safety Supervisor 

Scott generally interfered with miners’ representative rights due to his statements on July 8, 

2015, in the presence of miners’ representatives that MSHA inspectors could not issue citations 

for violations found by miners’ representatives. 

The Respondent argues that this Court should apply the interference test developed by 

ALJ Barbour in Secretary on behalf of Pepin v. Empire Iron Mining, 38 FMSHRC 1435 (June 

2016), rather than the interference test endorsed by two Commissioners in UMWA on behalf of 

Franks & Hoy v. Emerald Coal Resources, 36 FMSHRC 2088 (Aug. 2014), and applied 

subsequently by several ALJs. However, the Respondent argues that under either of the tests, it 

should prevail. 

The Respondent argues that it acted properly and did not interfere with any miners’ 

representative’s rights. With respect to the events of June 11, 2015, Respondent argues that it 

was within the discretion of the MSHA inspector to decide who, if anyone, would accompany 

the inspector. They argue that MSHA Assistant Manager Dotson and Field Supervisor Frederick 

rejected the practice of calling the mine foreman to pick up Shemwell as the miners’ 

representative. Instead, they directed DeMoss to call Shemwell and for Shemwell to call the 

39 FMSHRC Page 1084
mine foreman for a ride. The MSHA personnel indicated that the usual procedure for calling the 

miners’ representative and offering a ride would constitute unlawful pre-notification. Respondent 

argues that the evidence shows that the Respondent did not engage in interference against 

Shemwell or Greenwell. 

With respect to the statements made by Safety Supervisor Scott, the Respondent argues 

that Shemwell was not present for the statements, and therefore should not be permitted to bring 

a claim. Further, Respondent argues that the First Amendment and Due Process counsel against a 

finding of interference. 

III. Character Evidence and Evidence of Past Crimes

At hearing the Respondent questioned the Complainants’ veracity due to their past 

criminal convictions. Tr. 115, 142. Justin Greenwell had reportedly been convicted of first 

degree assault, possession of marijuana, and public intoxication. Tr. 114. Michael Wilson had 

been convicted of five assaults and receiving stolen goods. Tr. 142. 

This Court recognizes that the Federal Rules of Evidence allow, under certain 

circumstances, for the admission of evidence regarding a witness’ character, including evidence 

of past crimes. (See inter alia Rules 404, 405, 608, 609). However, this Court found such 

evidence to be of little or no probative value in resolving the material factual questions in the 

case sub judice. Indeed, the most critical factual question of what Scott uttered in the presence of 

Complainants, Greenwell and Wilson, on July 8, 2015, was resolved by Scott in his hearing 

admissions. As such, there was no need to make any credibility determinations as to what 

Complainants allegedly heard and as to what Scott actually said. 

Traditionally, in most jurisdictions, felonies, without regard to the mature of the 

particular offense, and crimen falsi, crime(s) involving falsity, without regard to the grade of the 

offense, were admissible to attack a witness’ character for truthfulness. (see also commentary to 

Rule 609 of Federal Rules of Evidence). 

On their face, Greenwell’s convictions do not appear to fall within either category nor do 

Wilson’s assault convictions. Moreover, this Court observes that history is replete with examples 

of individuals who, though pugnacious and alcoholic, were men of great character−Ulysses S. 

Grant, Audie Murphy, and Winston Churchill being only a few of many examples.7

As to Mr. Wilson’s conviction for receiving stolen goods, such appears to have been in 

the distant past. Rule 609(b) essentially provides that any conviction taking place more than 10 

years previous should only be admitted if its probative value outweighs it prejudicial effect. This 

Court found little probative value as to this evidence of past crimes−especially in view of Scott’s 

admissions and Wilson’s obvious passion to be an advocate for miners’ safety in his miners’ 

representative capacity. 

 7

 Indeed, during 40 years in the practice of law, this Court has encountered more than a 

few lawyers and judges who, though bellicose and tippling, were men of recognized honesty and 

truthfulness. 

39 FMSHRC Page 1085
Under the total circumstances−regardless of Respondent’s evidence of Greenwell’s and 

Wilson’s character−this court found that both Complainants reasonably viewed Scott’s 

interactions with and comments to the MSHA inspector as tending to interfere with their 

protected rights under § 105(c). None of the character evidence or past crime evidence presented 

by Respondent persuaded this Court that the Complainants were being less than honest in their 

testimony as how their willingness to exercise their rights as miners’ representatives was chilled. 

At hearing Respondent’s witnesses sometimes appeared to conflate and confuse two 

distinct issues: whether a MSHA inspector can issue a citation solely based upon the alleged 

observation of a safety violation by a miners’ representative that is not seen by the inspector 

versus whether a MSHA inspector can issue a citation if the violation is first pointed out by the 

miners’ representative and then only confirmed by the inspector. Tr. 250, 254-55; Ex-E. 

There is no need to address the former issue as in the case sub judice the safety violations 

were also subsequently seen by the MSHA inspector. (see inter alia: Tr. 256.)8 As to the latter 

issue, there is no question that Scott’s asserted position would violate § 103(g). 

IV. Credibility Assessment 

A. Steven James DeMoss 

This Court found this witness only partially credible.9 At times DeMoss seemed 

purposely obtuse during cross-examination. The efforts he exerted in attempting to contact 

Shemwell and ensuring that Shemwell participated in the June 11, 2015, MSHA inspection 

suggested, in the best light, a benign indifference to Shemwell’s § 103(g) rights. Likewise, his 

expressed fears of being cited for “prenotification” were not altogether convincing. Further, his 

unquestioning embrace of Scott’s position on the lowering of gravity and negligence in cases 

where miners’ representatives first find safety violations was also disconcerting. 

B. Brandon Heath Shemwell 

This Court fully credited Shemwell’s testimony that he wanted to exercise his § 103(g) 

right to travel with a MSHA inspector on June 5, 2015, that he made honest attempts to 

participate in the inspection, and that he was genuinely upset over being thwarted at such. 

Shemwell’s testimony was essentially uncontradicted by Respondent as to the critical elements 

of his interference claim. This case turned not on Shemwell’s testimony as upon respondent’s 

 8

 Moreover, this Court observes that there is abundant Commission case law holding that 

the fact of violation may be based upon (reliable) hearsay alone. Secretary Of Labor Mine Safety 

And Health Administration v. Productos De Agregados De Gurabo, 37 FMSHRC 2441, 2451-53 

(Oct. 28, 2015)(ALJ).

9

 At hearing DeMoss’ private counsel indicated that there might be reason for DeMoss to 

invoke his fifth amendment privilege if questioned regarding an alleged dust pump tampering 

incident at subject mine that had a collateral connection to the within controversy. This Court, of 

course, took no adverse inference from such in assessing DeMoss’ testimony. See Tr. 71-72.

39 FMSHRC Page 1086
claimed justification for its failure to contact and provide him with transportation to the MSHA 

inspection. 

C. Justin Neil Greenwell 

Justin Greenwell gave consistent testimony regarding the July 8, 2015, incident at issue. 

As noted within, Greenwell’s recollections of Scott’s remarks regarding MSHA inspectors being 

barred from issuing citations where violations were first pointed out by miners’ representatives 

were essentially confirmed by Scott at hearing. 

Whether Greenwell ultimately left his employment for other non-discriminatory grounds 

is not ultimately dispositive of his within interference claim in that this Court fully credited 

Greenwell’s testimony that Scott’s remarks on July 8, 2015, chilled his desire to exercise his § 

103(g) rights. This Court found Greenwell to be also quite sincere in his expressed desire to 

protect miners’ health and safety in his position as miners’ representative. 

D. Michael Wilson 

Michael Wilson was quite credible in his descriptions of Scott’s fundamental 

misapprehension of § 103(g)’s statutory intent−that miners themselves should play an integral 

role in the enforcement of mine safety and health standards by alerting others to hazards. Indeed, 

Scott was Wilson’s best corroborating witness. 

Whatever the character flaws imputed to Wilson by Respondent−this Court nonetheless 

found Wilson to be an individual sincerely devoted to his duties as a miners’ representative and 

honestly committed to miners’ health and safety. That Wilson was willing to continue in his role 

in an unpaid capacity post-retirement is persuasive evidence of such. 

Given the total circumstances it was abundantly clear to this Court that Wilson in good 

faith reasonably viewed Scott’s remarks as tending to interfere with Wilson’s protected § 103(g) 

rights. 

E. John T. Scott 

This Court found Respondent’s witness, John T. Scott, to be a credible and honest 

individual. A former police officer, Scott readily admitted that he had argued with MSHA 

Inspector Ramsey−in the presence of Complainants Greenwell and Wilson−that MSHA 

inspectors could not issue citations for safety violations that were first pointed out by miners’ 

representatives. Indeed, Scott’s forthright admissions, as a matter of fact and law, substantially 

established Wilson’s and Greenwell’s interference claims arising out of July 8, 2015, incident at 

issue. 

Scott’s testimony essentially corroborated much of Complainants’ hearing testimony. 

(See inter alia Scott’s acknowledgement that his remarks regarding the issuance of citations had 

generally upset Greenwell.) 

39 FMSHRC Page 1087
While finding Scott to be a quite believable witness, this Court nonetheless found much 

of Scott’s testimony to be troubling. Given Scott’s years of coal mine experience and his position 

of safety supervisor this Court was shocked at Scott’s fundamental lack of understanding 

regarding § 105(g) protections. That Scott in good faith believed that mine operators were to be 

given a carte blanche waiver of responsibility as to safety violations first pointed out by miners’ 

representatives is profoundly disturbing. 

This Court wonders if Scott, as a former police officer, would so blithely embrace a 

proposition that criminal wrong-doers could not be charged for crimes whose existence was first 

pointed out by their defense counsel to the police. 

Because of the Secretary’s discovery refusals discussed herein, this Court is unable to 

determine what was actually said by MSHA personnel to Scott and/or whether Scott 

misinterpreted or misunderstood any of such remarks. However, even assuming that Frederick 

provided misinformation to Scott, Scott’s failure to have reasonably questioned such patently 

erroneous advice affecting miners’ health and safety is baffling and saddening. 

V. The Test for Interference 

The test for interference under Section 105(c) is not well-settled, and each party argues 

that this Court should apply a different test. Section 105(c) states: 

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner, representative of miners or applicant for 

employment in any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator’s agent, or the representative of the miners at the coal or 

other mine of an alleged danger or safety or health violation in a coal or other 

mine, or because such miner, representative of miners or applicant for 

employment is the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101 or because such miner, representative 

of miners or applicant for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

30 U.S.C. 815(c)(1). 

The Act prohibits both discrimination because of protected activity and interference with 

the exercise of statutory rights. Most cases before the Commission are of the former, and follow 

the Pasula-Robinette framework, wherein the Claimant presents a prima facie case by showing 

that he or she engaged in protected activity, that there was an adverse action, and that the adverse 

action was motivated in any part by that activity. See Turner v. Nat 7 Cement Co. of 

39 FMSHRC Page 1088
California, 33 FMSHRC 1059, 1064 (May 2011); Sec'y of Labor on behalf of Pasula v. Consol 

Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d 1211 (3d Cir. 

1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(Apr. 1981). 

However, the Act’s text and legislative history make clear that the Act protects miners 

against “not only the common forms of discrimination, such as discharge, suspension, 

demotion..., but also against the more subtle forms of interference, such as promises of benefits 

or threats of reprisals.” S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). Interference cases 

have been relatively rare at the Commission, with an increased frequency of such cases in the 

past few years, so a majority of Commissioners have never explicitly laid out a test for 

interference. 

In United Mine Workers of America obo Mark A. Franks and Ronald M. Hoy v. Emerald 

Coal Resources, LP, 36 FMSHRC 2088 (Aug. 2014), two Commissioners endorsed a test 

suggested by the Secretary. According to this test, an interference violation occurs if: 

1) A person’s action can be reasonably viewed, from the perspective of 

members of the protected class and under the totality of the circumstances, 

as tending to interfere with the exercise of protected rights, and 

2) The person fails to justify the action with a legitimate and substantial 

reason whose importance outweighs the harm caused to the exercise of 

protected rights. 

Id. at 2108. This test has been applied by several ALJs in a variety of interference cases. See e.g. 

Lawrence Pendley v. Highland Mining Co. & James Creighton, 37 FMSHRC 301 (Feb 12, 

2015)(ALJ Andrews); Scott D. McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (June 

11, 2015) (ALJ Feldman); Sec’y of Labor obo Greathouse et al. v. Ohio County Coal, 37 

FMSHRC 2892 (Dec. 30, 2015) (ALJ Miller). 

However, in Sec. of Labor on behalf of Mindy S. Pepin v. Empire Iron Mining 

Partnership, 38 FMSHRC 1435 (June 6, 2016), ALJ Barbour cast doubt on the Franks test. 

Judge Barbour held that the Secretary’s interpretation of Section 105(c) was unreasonable and 

not entitled to Chevron deference because it “entirely reads out the word ‘because’ and all 

subsequent language” from the provision.10 Id. at 1449. Judge Barbour held that the word 

“because” required that the Complainant prove that the Respondent’s interference with the 

 10 The pertinent language of Section 105(c)(1) states: “No person shall discharge or in 

any manner discriminate against or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of any miner...because such miner... 

has filed or made a complaint under or related to this Act...” 30 U.S.C. 815(c)(1)(emphasis 

added). 

39 FMSHRC Page 1089
exercise of miners’ statutory rights was motivated by the exercise of protected rights. Id. at 1453-

54. While acknowledging that the Commission has traditionally based its interpretation of 

interference on the NLRB’s interpretation of similar language, which does not require a showing 

of intent, and that courts have held that the word “because” in Title VII disparate impact cases 

does not require a showing of intent, the judge held that a plain reading of the Act required such. 

Id. at 1450-51, n. 11. Accordingly, he created the following test, which places intent front and 

center: In order to prove an allegation of illegal interference under section 105(c)(1), the 

Secretary must show that “(1) the Respondent's actions can be reasonably viewed, from the 

perspective of members of the protected class and under the totality of the circumstances, as 

tending to interfere with the exercise of protected rights, and that (2) such actions were motivated 

by the exercise of protected rights.” Id. at 1453–54. 

Following Pepin, the Commission had the opportunity to determine the appropriate 

interference test in Sec. of Labor on behalf of Thomas McGary and Ron Bowersox and UMWA v. 

The Marshall County Coal Co., McElroy Coal Co., Murray American Energy, Inc. and Murray 

Energy Corp., 38 FMSHRC 2006 (Aug. 26, 2016)(hereinafter referred to as “McGary”)11. The 

Secretary in McGary argued that the Commission should apply the test from Franks, whereas the 

Respondent argued before the Commission that because there was no interference test endorsed 

by a majority of Commissioners, it should only apply its previous precedential decisions in Sec’y 

on behalf of Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005), and Moses v. Whitley 

Dev. Corp., 4 FMSHRC 1475 (Aug. 1982). 

Commissioners Young, Nakamura, and Althen held that the “Franks two-step test is 

consonant with the Commission's decisions in Gray and Moses and thus it was not error for the 

Judge to apply it in this instance.” 38 FMSHRC at 2012. The Commission further stated: 

The language of the first prong of the Franks interference opinion test is entirely 

consistent with Moses and Gray. In Moses, the Commission concluded that the 

operator's conduct constituted interference because it would “chill the exercise” of 

miners' protected rights. 4 FMSHRC at 1478-79. Consequently in Gray, the 

Commission analyzed “whether the employer engaged in conduct which, it may 

reasonably be said, tends to interfere with the free exercise of [protected] rights.” 

27 FMSHRC at 9 (citation omitted). 

The second prong of the Franks interference opinion two-step test is similarly 

grounded in Commission precedent. In Moses, the Commissioner recognized that 

an operator may have legitimate and substantial reason for its conduct in 

question. See 4 FMSHRC at 1479 n.8 (“This is not to say that an operator may 

never question or comment upon a miner's exercise of a protected right. Such 

question or comment may be innocuous or even necessary to address a safety or 

health problem ....”). 

Id. In a footnote, Commissioners Young and Althen clarified that they “do not find it necessary 

 11 In McGary, the Respondents did not challenge the application of the Franks

interference test before the ALJ, which complicated the procedural posture of the issue before 

the Commission. McGary, 38 FMSHRC at n. 11, n. 22. 

39 FMSHRC Page 1090
to settle upon a final, specific test of interference in this case.” Id. at n. 11. They noted that the 

question of which test should apply to interference cases has never been fully briefed before the 

Commission, and therefore it would be inappropriate for the Commission to settle on one test 

over another. Id. Commissioner Nakamura noted that he believed that the Franks test was the 

appropriate test for interference cases. Id. Citing Supreme Court precedent in Tex. Dep't of Hous. 

& Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), Griggs v. Duke 

Power Co., 401 U.S. 424 (1971), and Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), he 

observed, “that the Supreme Court has often recognized that statutes prohibiting discrimination 

“because of” congressionally designated criteria need not include a motive element.” Id. 

Commissioners Jordan and Cohen wrote a separate decision, concurring in part and 

dissenting in part. In pertinent part, they agreed with the Judge’s application of the Franks test. 

Id. at 2028-2030. Commissioner Jordan noted in a footnote that she joins Commissioner 

Nakamura in his endorsement of the Franks test. Commissioner Cohen noted that he would 

apply the Franks test in the McGary case, but explained that “absent briefing from the Secretary, 

the regulated community and miners, however, Commissioner Cohen does not believe it prudent 

to settle upon a specific test for interference under the section 105(c) of the Mine Act at this 

time.”12 Id. at n. 22. 

Accordingly, McGary clarifies that whereas there is no settled test for interference cases, 

the Franks test is an appropriate test, and not contrary to the Act or Commission precedent. The 

undersigned will apply the Franks test for these reasons, and because the Pepin test would 

appear to lead to absurd results under too many circumstances. 

Unfortunately, Section 105(c) is not the model of legislative precision.13 Section 

105(c)(1)—a 203-word run-on sentence—is no exception. This is perhaps due to the fact that the 

 12 Commissioner Cohen did not describe a circumstance in which an interference case 

would warrant a different test. 

13 For example, Section 105(c)(2), which describes the procedures for Temporary 

Reinstatement, states that the Secretary shall commence an investigation of a complaint “within 

15 days of the Secretary’s receipt of the complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Commission, on an expedited basis upon application of the 

Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. 815(c)(2)(emphasis added). Read plainly, this clause, with its use of the 

word “shall,” would seem to deny the Commission ALJs of any discretion in granting or denying 

a Temporary Reinstatement application, and would make a hearing wholly unnecessary. 

However the Commission has not interpreted the clear words of the statute in this manner, and 

has instead detailed procedures for a Temporary Reinstatement hearing, 29 C.F.R. 45, and 

Commission ALJs have denied applications by the Secretary for Temporary Reinstatement. See 

e.g. Sec’y of Labor obo Lawrence D. Hagene v. Prairie State Generating Co., LLC, 38 FMSHRC 

290 (Feb. 22, 2016) (ALJ); Sec’y of Labor obo Levi Bussanich v. Centralia Mining Co., 22 

FMSHRC 107 (Jan. 27, 2000)(ALJ), aff’d by the Commission, 22 FMSHRC 153 (Feb. 22, 2000); 

Sec’y of Labor obo Daniel R. Brusca v. Twentymile Coal Co., 30 FMSHRC 552 (June 25, 

2008)(ALJ). 

39 FMSHRC Page 1091
history of mining legislation follows quickly on the heels of the history of mining disasters. The 

1969 Coal Act was passed soon after the 1968 Farmington Mine disaster.14 Public Law 91-173 

(Dec. 30, 1969). Similarly, the 1977 Mine Act was passed soon after the 1976 Scotia Mine 

disaster and the 1977 Porter Tunnel Mine disaster.15 One should of course give effect to every 

word in a statute, but one should not interpret words so narrowly such that they lead to absurd 

results that are contrary to the purpose of the law. 

Though the Pepin test’s strict reading of the word “because” in the Act to require the 

Complainant to show that the Respondent was “motivated by the exercise of protected rights,” 

has some appeal, it would lead to results that are contrary to the Act’s and the provision’s 

purpose. According to the Pepin test, an agent of the operator would be legally permitted to 

interfere with a miner’s statutory rights because he doesn’t like the miner, because there was a 

lack of resources, because he was ignorant of the miner’s statutory rights, or a host of other 

reasons that are not motivated by the exercise of protected rights. 

Additionally, because the Pepin test requires that “such actions were motivated by the 

exercise of protected rights,” it would only find interference as a reaction to miner’s conduct, and 

not in instances where the operator preemptively interfered with miners’ rights. Such an example 

of preemptive inference can be found in the McGary case, where the mine CEO held mandatory 

“Awareness Meetings” wherein miners got the impression that all safety complaints should first 

be reported to mine management, in contravention to their statutory rights to make anonymous 

complaints to MSHA. McGary, 38 FMSHRC at 2015-16. In the McGary case, the CEO’s 

conduct was perhaps in response to previous complaints, but what about an instance where a 

mine operator opens a mine and includes such information in the initial training? If the 

Complainant cannot show that the operator’s motivations were because of the exercise of 

protected rights—and how could he if the mine just opened—should that conduct be 

permissible? 

This requirement is in conflict with the first prong of both the Franks test employed in 

McGary, as well as the first prong of the Pepin test, which asks if the Respondent’s actions can 

 14 Indeed, the first two sentences of the Purpose of the Coal Act in the House Report 

state: 

During the early hours of November 20, 1968, an explosion rocked Consolidation 

Coal Co.'s No. 9 mine near Farmington, W. Va. When the mine was sealed 

several days later, it became the tomb for 78 miners working that tragic midnight 

shift who could not have escape and for whom no rescue operation could 

succeed. 

H. Rept. 91-563, 91st Congress, 1st Session, October 1969. 

15 The Introduction of the Senate Report accompanying the bill provides a long list of 

mine disasters, ending with Scotia and Porter Tunnel (Tower City). S. Rep. 95-191, 95th Cong., 

1st Session (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977 (1978). 

39 FMSHRC Page 1092
be reasonably viewed “as tending to interfere with the exercise of protected rights.” McGary, 38 

FMSHRC at 2011; Pepin, 28 FMSHRC at 1453-54. The phrase “tending to interfere” indicates 

that the employer’s conduct is inclined to interfere with future miner conduct. However, the 

second prong in Pepin requires a predicate exercise of protected rights that the conduct be in 

reaction to. If a mine operator is interfering with a miner’s statutory rights, why should the 

Complainant who is in a worse position to make a showing of the operator’s motivations be 

required to show why the operator is acting in such a manner? Instead, the operator should be 

required to show why the interference with a miner’s statutory rights was due to “a legitimate 

and substantial reason whose importance outweighs the harm cause to the exercise of protected 

rights,” as required by the Franks test. If it cannot, then the conduct should be prohibited under 

Section 105(c). 

VI. Respondent’s Conduct Tended to Interfere with the Exercise of Miners’ Rights in 

Docket Nos. KENT 2016-96-D and KENT 2016-108-D, However There was a 

Legitimate and Substantial Reason Present in Docket No. KENT 2016-96-D 

In Docket Nos. KENT 2016-96-D and KENT 2016-108-D, Complainants Shemwell and 

Greenwell allege that Respondent’s failure to notify them of the June 11, 2015, MSHA 

inspections and failure to provide Shemwell transportation to accompany the inspector 

constituted interference. Shemwell and Greenwell were designated as miners’ representatives on 

February 28, 2014. Tr. 45, 47, 87. Both Shemwell and Greenwell testified that mine management 

treated them worse once they started serving as miners’ representatives. Tr. 48-49, 93-95. The 

Respondent does not deny that neither Shemwell nor Greenwell were notified about the 

inspection or provided transportation, but states that the failure to notify Shemwell was due to 

the MSHA inspector’s specific orders regarding notification. 

The relevant facts of these cases are that on June 11, 2015, inspector Walker arrived at 

the mine at 6:00 am. Tr. 187. DeMoss was unaware if Walker had asked for a miners’ 

representative or if one was available when he arrived, but he later learned that an Armstrong 

examiner had been accompanying Walker. Tr. 190, 221. 

At 6:45 am DeMoss asked Shemwell and then Greenwell if they wanted to walk around 

with the MSHA inspector should one be there on that day, to which they both responded yes. Tr. 

54, 99, 165. DeMoss did not tell them that there was already an inspector at the mine, and they 

did not know that there was an inspection already proceeding. Tr. 100, 126, 190-91. Based on 

Inspector Walker’s notes, it is likely that he did not go underground until approximately 6:45 am, 

when DeMoss was meeting with the miners’ representatives. EX. R-2. 

Later in the morning, between 8:30 am and 9:00 am, MSHA District 10 Assistant 

Manager Brian Dotson and Field Supervisor Allen Frederick arrived at the mine for inspection. 

Tr. 166. DeMoss told them that he would call Presley to pick up Shemwell so he could 

accompany the inspectors. Tr. 167, 238. MSHA personnel told DeMoss not to do so, and instead 

instructed DeMoss to call Shemwell, and have Shemwell call Presley for transportation. Tr. 238, 

259. Though not specifically told the reason behind this directive, DeMoss testified that he 

believed it was due to MSHA’s concern with pre-notification of the inspector’s presence.16 Tr. 

 16 Advance notice of an inspection is prohibited by Section 103(a) of the Act. 

39 FMSHRC Page 1093
167, 238-39. Over the following 13 minutes, DeMoss tried to call Shemwell 12 times, but was 

unable to reach him. Tr. 170-71. When Shemwell called back, DeMoss explained that Shemwell 

had to contact Presley for a ride. Tr. 56-60, 172. 

Shemwell thereafter attempted to call Presley 12 times between 10:12 am and 11:21 am 

to arrange a ride, but he could not reach him. Tr. 58-61. Shemwell called Greenwell and asked if 

there were any rides available to transport him to the inspection party, but Greenwell could not 

locate any. Tr. 121-122. Later that morning, Shemwell spoke with Scott, and Scott told him that 

the inspection had concluded and asked Shemwell if he had any questions. Tr. 62-63. Shemwell 

responded that he did not. Tr. 62-63. 

Later, when Greenwell enquired with Inspector Walker and DeMoss why he was not 

informed about the inspection and offered transportation, they both indicated that there was no 

room on the ride. Tr. 101-102, 120, 126. Greenwell testified that had DeMoss informed him that 

there was an ongoing inspection during the 6:45 am meeting, he would have traveled with the 

inspector. Tr. 102. He further testified that if the company continued to fail to inform him of 

inspections and offer him transportation, he would not continue to exercise his rights as a miners’ 

representative. Tr. 113. 

According to the Mine Act, miners’ representatives “shall be given an opportunity to 

accompany the Secretary or his authorized representative during the physical inspection of any 

coal or other mine...for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine.” 30 U.S.C. §813(f). Such opportunity must mean that 

miners’ representatives are provided notification, as well as the time and resources necessary to 

facilitate the walkaround. Miners’ representatives are dependent upon mine management for 

appropriate notification of inspection. Furthermore, the record clearly shows that miners’ 

representatives like Shemwell or Greenwell have no authority to order anyone to provide a ride, 

and are instead dependent on mine management. Tr. 61, 195-196. I find that a failure to notify a 

miners’ representative or provide him with adequate transportation would tend to interfere with 

the exercise of the miners’ representative’s statutory rights of accompanying the MSHA 

inspector. 

However Shemwell’s case (Docket No. KENT 2016-96-D) contains evidence that MSHA 

representatives ordered the Respondent to notify Shemwell in the manner it did, which further 

led to the lack of transportation. Tr. 167, 238-239, 259. Although the undersigned agrees with 

Complainant that the Respondent could have, and perhaps should have, engaged in further 

efforts in ensuring that Shemwell was notified and provided transportation, the MSHA 

inspector’s orders complicate this matter.17 If a federal inspector orders mine personnel to use a 

specific means of notification and arrangement for transportation, even if inefficient or 

problematic, there is a legitimate and substantial justification for complying. 

In Greenwell’s case (Docket No. KENT 2016-108-D), no such justification exists. 

Respondent made no efforts in informing Greenwell of Inspector Walker’s presence, or trying to 

 17 MSHA repeatedly refused to make personnel available for deposition. 

39 FMSHRC Page 1094
find him transportation. In this instance, they simply shirked their duties. Accordingly, I find that 

the conduct contained in KENT 2016-108-D constituted unlawful interference. 

 

VII. Respondent Interfered With the Exercise of Miners’ Rights in Docket No. KENT 

2015-673-D 

The circumstances surrounding Docket No. KENT 2015-673-D involve statements made 

on July 8, 2015, by Armstrong safety director, John T. Scott, to MSHA inspector, Charles 

Ramsey, in the presence of miners’ representatives Wilson and Greenwell. During the July 8 

inspection, Greenwell pointed out some loose roof bolts, a piece of machinery that was leaking 

oil, and a problem with a door switch to the MSHA inspector. Tr. 108-110, 137, 246-47. This led 

to the inspector issuing three citations. Tr. 247-48. Scott challenged the citations, and told the 

MSHA inspector that citations could not issue if a miners’ representative had first pointed out the 

safety violation.18 Tr. 111, 138-39. I find that such comments made in the presence of miners’ 

representatives would tend to interfere with the exercise of miners’ rights, and there is no 

legitimate and substantial justification. 

Wilson, Greenwell, and Shemwell each testified that if the Respondent continued to 

argue to MSHA that if a miners’ representative points out a violation to an inspector a citation 

cannot issue, or if MSHA did not issue citations for those violations, they would not continue to 

exercise their walkaround rights. Tr. 66, 81, 112, 138-139. Indeed, miners’ representatives serve 

in this important capacity to make the mines safer. Any reasonable miners’ representative would 

reason that if his presence lessened MSHA’s ability to issue citations, he would likely rethink his 

role, and would perhaps conclude that it would be safer if no miners’ representative walked 

around with the inspector. 

Scott testified that he was told by MSHA inspector Frederick or Walker of the rule that 

MSHA cannot issue a citation if a miners’ representative first discovers the violation. Tr. 182. 

Though a mine operator has a right to challenge any citation or defend its conduct to the 

inspector, the comments made in the instant case were unreasonable and should not have been 

made in the presence of miners’ representatives. However, there are several problems with 

Scott’s conduct. Even if Scott was indeed informed on a previous occasion by MSHA personnel 

that a citation cannot issue if a miners’ representative first discovers the violation—or he 

misunderstood their statements to mean such—as safety director he should have found the notion 

unreasonable and suspicious. The Mine Act is a strict liability statute, meaning that the 

circumstances surrounding discovery would not impact the fact of violation. Furthermore, if such 

were the case, then miners’ representatives would be dissuaded from speaking up, and simply 

hope silently that the MSHA inspector noticed the violations. Indeed, mine safety manager 

DeMoss called Scott’s position “crazy.” Tr. 214. 

 18 I find Wilson and Greenwell’s account of Scott’s statement challenging the citation 

more credible than Scott’s testimony that he was challenging the gravity and negligence. Tr. 250. 

In addition to Wilson and Greenwell providing more credible testimony, Scott’s testimony was 

inconsistent. After testifying that he was only referring to gravity and negligence, he admitted 

that the Complainants’ discrimination complaint’s pleadings were accurate in that he had tried to 

talk inspector Ramsey out of issuing the citation because miners’ representatives first discovered 

the violations. Tr. 254-55; Ex-E. 

39 FMSHRC Page 1095
If Scott somehow believed this unreasonable notion, he should have discussed the matter 

with MSHA either prior to, or after, the inspection, while out of the presence of the miners’ 

representatives. Any reasonable person would recognize that raising the argument in the 

presence of the miners’ representative would have the unintended, or intended, consequences of 

dissuading miners’ representatives from reporting violations to MSHA inspectors. Respondent 

raises a freedom of speech argument, stating that one should not suffer liability under the Mine 

Act for clarifying one’s rights under the Act. However, the Respondent’s arguments are 

misplaced, and the cases it cites in support are inapposite. The issue in the instant case is not 

solely what was said, but that it was said in the presence of the miners’ representatives. The First 

Amendment often requires a balancing of the right to free speech with other rights. See eg. NLRB 

v. Gissel Packaging Co., 395 U.S. 575 (1969) (Supreme Court found interference under NLRA 

based on threats of plant closure made by employer to employees to dissuade unionization). If 

the Respondent’s argument was followed, then much of the Act’s discrimination protections (as 

well as many other regulatory provisions) would be hollowed of all meaning. 

The Respondent certainly had the right to clarify its understanding of MSHA’s citation 

protocol. However, in doing so in the presence of the miners’ representatives, its comments 

tended to interfere with the representatives’ rights. Furthermore, there is no significant 

justification for why the comments were made in their presence. As such, I find that Scott’s 

comments made in the presence of miners’ representatives constituted interference under Section 

105(c) of the Mine Act. 

ORDER 

Based on the above, the Court finds that Respondent violated Section 105(c) in Docket 

Nos. KENT 2016-108-D and KENT 2015-673-D by unlawfully interfering with miners’ 

protected activities. The Court finds no interference in Docket No. KENT 2016-96-D. 

It is hereby ORDERED that Armstrong Coal cease and desist from interfering with the 

rights of miners’ representatives. 

It is FURTHER ORDERED that Armstrong Coal’s management personnel undergo 

comprehensive specialized training by MSHA personnel in the statutory rights of representatives 

under Section 105(c) of the Act. 

It is FURTHER ORDERED that Armstrong Coal post this decision at the Parkway 

Mine in a conspicuous unobstructed place where notices to employees are customarily posted, 

for a period of 60 days. 

39 FMSHRC Page 1096
It is FURTHER ORDERED that Respondent pay Complainants’ reasonable attorney 

fees and costs. 

 Pursuant to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a copy of this decision will 

be sent to the office of the Regional Solicitor having responsibility for the area in which the 

Highland 9 Mine is located so that the Secretary may take the actions required by the rule.19

 /s/ John Kent Lewis 

 John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main St., Whitesburg, KY 41858 

Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

 19 It should be noted that any significant penalty based upon the negligence or gravity of 

Respondent’s conduct will be closely scrutinized by the undersigned in light of MSHA’s refusal 

to make available information necessary to this case. 

39 FMSHRC Page 1097
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE 443

DENVER, CO 80202-2500

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

May 9, 2017 

 

DECISION AND ORDER

Appearances: Randy L. Cardwell, Mine Safety and Health Administration, U.S. Department of 

Labor, Vacaville, California, for Petitioner; 

 Luis A. Garcia, Office of the Solicitor, U.S. Department of Labor, Los Angeles, 

California, for Petitioner; 

 Alberto Ramirez, pro se, Sacramento, California, for Respondent. 

Before: Judge Miller 

 This case is before me upon a petition for assessment of 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. § 815(d) (“the Act”). This docket involves one citation issued pursuant to 

Section 104(a) of the Act with an originally proposed penalty of $114.00. The parties presented 

testimony and evidence regarding the citation at a hearing held in Sacramento, California, on 

April 12, 2017. The Secretary provided a memorandum of law regarding this single guarding 

violation prior to the hearing. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Vernalis Plant is a surface sand and gravel mine located in San Joaquin County, 

California. The parties have stipulated that Teichert Aggregates is an “operator” as defined in 

Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and that the mine is subject to the provisions 

of the Mine Act and the jurisdiction of the Commission. Jt. Stips. ¶¶ 2-6. 

Citation No. 8873581 was issued for violation of 30 C.F.R. § 56.14107(a) for an 

inadequate guard on a head pulley. The Secretary alleges that the violation was unlikely to cause 

injury, that if an injury did occur it would be permanently disabling, that the violation was not 

significant and substantial, and that it was the result of low negligence. The Secretary proposed 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

TEICHERT AGGREGATES, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2017-0028 

A.C. No. 04-02792-419417 

Mine: Vernalis Plant 

39 FMSHRC Page 1098
a penalty of $114.00 based on his penalty criteria. Based upon the parties’ stipulations, my 

review of the entire record, my observation of the demeanors of the witnesses, and consideration 

of the parties’ legal arguments, I find that the Secretary has proven that a violation occurred as 

alleged. 

A. MSHA’s Inspection 

Inspector William Edminister has been a mine inspector for nine years, and has a total of 

16 years mining experience. He is familiar with the Vernalis sand and gravel operation and 

familiarized himself with the mine file prior to conducting an inspection there. The mine 

employs approximately 40 to 50 miners, with production primarily on the day shift. Edminister 

travelled to the mine on August 1, 2016, to conduct a regular inspection beginning in the late 

afternoon. During the course of his inspection, he observed the 2 CNV 25 tripper conveyor. The 

tripper conveyor is an overland conveyor that moves finished product from one location to 

another, where it is dumped onto a stock pile. The end of the conveyor, where this citation was 

issued, is on a trolley and can be moved to change the location of dumping. Edminister and the 

others in the inspection party walked the length of the conveyor on the designated walkway, up 

the slope to the discharge point at the top. At the end of the conveyor walkway, the inspector 

climbed a ladder about seven or eight feet up to the work platform. From that platform, 

Edminister observed a second work platform higher up where the head pulley was located. The 

platform with the pulley was surrounded by a handrail. The Respondent’s Exhibit 3-14 shows an 

aerial view of the conveyor and work platform with the pulley. Edminister did not enter the 

work platform, but observed that a miner could enter it by climbing over or through the 

handrails. Other than the handrails, the head pulley was not guarded on either side. The 

unguarded area was 26 inches wide and 40 inches above the work platform. The aerial 

photograph shows a shovel on the work platform that miners use to dislodge material in the 

discharge chute, bringing them very close to the unguarded portion of the pulley. 

The Secretary’s Exhibits 3 and 4 are photographs that show the unguarded pulley as 

observed by the inspector. The inspector explained that there were exposed moving machine 

parts at the drive shaft area where the head pulley passes over the drum. The primary purpose of 

the work platform, which was added after the conveyor was purchased, is to service the head 

pulley. The bearings must be changed periodically, and miners must occasionally access the 

platform to unclog the discharge point. Some maintenance on the pulley can be completed by 

visual inspection, and lubrication is done with a remote grease line. However, if the grease line 

fails or material builds up at the chute, a miner must enter the area and will be exposed to the 

moving parts. 

Edminister testified that the moving parts as he observed them could pull a miner into the 

area, possibly causing a fatal injury. He was told that the pulley had been unguarded for quite a 

while, but he was not certain exactly how long. He understood that the mine had a lock-out/tagout policy for anyone accessing the area and that the area was not accessed often. Due to the 

limited exposure, he designated the citation as non-S&S and unlikely to cause injury. He chose 

also to designate the negligence as low because mine management believed that the handrail 

around the work platform was sufficient to protect miners from the pulley. 

 

39 FMSHRC Page 1099
 The mine operator called three witnesses, all of whom were present for at least part of 

this inspection. Chris Walters, the assistant hot plant operator, has worked at the plant for 13 

years. He has not worked on the cited platform but testified that the miners are trained not to 

enter the area unless they have de-energized and locked out the belt. He also explained that the 

miners know not to go past the handrails on the platform, and that the only time a miner would 

come close to the pulley would be to do work on it. He explained that miners occasionally enter 

the area to change the direction of the discharge chute, but that they de-energize the equipment 

first. The moving parts are not accessible, in his view, when miners are following the safety 

procedure. Mark Muniain, the plant repairmen, agreed that the area is accessed only for 

maintenance, which is infrequent. He testified that it was possible for a miner to go through or 

over the rails and access the cited area, but that this would be against the mine’s safety 

procedures. 

Michael Goss has been a superintendent for Teichert for 14 years and has worked at the 

Vernalis location slightly more than a year. He was called at home when Edminister arrived to 

conduct an inspection, and he returned to the mine to accompany the inspector. He was present 

for the inspection of the conveyor area and the work platform. He explained that the unguarded 

pulley had been unguarded during the year he was at the plant, and he believed that the work 

platform had been added eight or ten years earlier when the bearings on the pulley had to be 

changed. He believes additional guarding was not necessary because the area with moving 

machine parts was completely enclosed by a handrail with a mid-rail. In his view, if someone 

were to trip and fall as they entered the work platform, the handrail would prevent contact with 

the unguarded area. 

B. The Violation 

Based on his observations, Edminister issued Citation No. 8873581 for an unguarded 

head pulley. The Secretary alleges a violation of 30 C.F.R. § 56.14107, which provides that 

(a) Moving machine parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail, and takeup 

pulleys, flywheels, couplings, shafts, fan blades, and similar 

moving parts that can cause injury. 

(b) Guards shall not be required where the exposed moving parts 

are at least seven feet away from walking or working surfaces. 

The parties agree that a work platform on the 2 CNV 25 tripper conveyor provided access to the 

head pulley, and that there were moving machine parts inside the pulley which had the potential 

to cause injury. The parts were exposed to someone standing on the work platform. The issue is 

whether the machine parts were “guarded” under the meaning of the standard. The Secretary 

argues that the exposed parts of the head pulley violated § 56.14107. However, Teichert argues 

that the handrails surrounding the pulley were sufficient guarding to satisfy the standard. In the 

Secretary’s view, the handrails did not constitute a guard because they were too easily defeated. 

A plurality of the Commission has found that § 56.14107 is ambiguous because “its 

language is broad and does not specify the extent of guarding required or explain how moving 

39 FMSHRC Page 1100
parts should be guarded.” Alan Lee Good, 23 FMSHRC 995, 1004 (Sept. 2001) (Jordan and 

Beatty, Comm’rs). In cases involving an ambiguous regulatory provision, Commission judges 

must defer to the Secretary’s interpretation of his own regulation “as long as it is reasonable.” 

Small Mine Dev., 37 FMSHRC 1892, 1894 (Sept. 2015) (quoting Tenet HealthSystems 

Healthcorp. v. Thompson, 254 F.3d 238, 248 (D.C. Cir. 2001)); see also Auer v. Robins, 519 

U.S. 452, 461 (1997) (holding that an agency’s interpretation of its own regulation is 

“controlling unless plainly erroneous or inconsistent with the regulation”). 

The purpose of MSHA’s guarding standards is to “prevent, to the greatest extent possible, 

accidents in the use of [mechanical] equipment.” See Arch of Ky., Inc., 13 FMSHRC 753, 756 

(May 1991) (quoting 38 Fed. Reg. 4976, 4977 (Feb. 1973)) (interpreting a different guarding 

standard). Here, several witnesses testified that it was possible for a miner to climb over or 

through the handrail to reach the work platform near the pulley. If he did so, he would be 

exposed to the moving machine parts. The additional guard required by the inspector would 

prevent such a person from coming into contact with the moving parts. The additional guard did 

not impede the functioning of the pulley and would be crucial in the event of someone entering 

the work platform without de-energizing the pulley. Thus, I find that the handrail alone would 

not prevent an accident involving the pulley “to the greatest extent possible.” Therefore, the 

Secretary’s interpretation requiring a guard on the specific moving parts is a reasonable 

interpretation of the regulation. 

Teichert also argues that additional guarding was not necessary because the mine has a 

lock-out/tag-out policy which would require that the pulley be de-energized before anyone 

performed maintenance on it. However, the Commission has found that guarding standards 

should be interpreted to account for “all relevant exposure and injury variables” including “the 

vagaries of human contact.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). 

Consistent with this, Commission judges have interpreted guarding standards to require that 

guarding be adequate to prevent injury in the event that an employee carelessly disregards a 

lock-out/tag-out policy. See, e.g., Climax Molybdenum Co., 38 FMSHRC 2453, 2460 (Sept. 

2016) (ALJ); Dix River Stone Inc., 29 FMSHRC 186, 203 (Mar. 2007) (ALJ); Calco Inc., 15 

FMSHRC 480, 484 (Mar. 1993) (ALJ). Here, I credit the miners’ testimony that Teichert had a 

lock-out/tag-out policy that was consistently followed. Nevertheless, the pulley guarding needed 

to account for the unlikely event of a miner entering the area without following the policy. The 

guarding observed by the inspector would not have been adequate to prevent injury in that 

occasion. Accordingly, I find that the Secretary has proven a violation of the standard. 

C. Fair Notice 

While I find that the Secretary’s interpretation of the standard is reasonable, Teichert is 

entitled to due process protections prior to enforcement of that interpretation. Hecla Ltd., 38 

FMSHRC 2117, 2125 (Aug. 2016). Due process requires that laws “give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). In the 

context of regulatory interpretation, a court must not allow deference to an agency’s 

interpretation to “validat[e] the application of a regulation that fails to give fair warning of the 

39 FMSHRC Page 1101
conduct it prohibits or requires.” Id. (quoting Suburban Air Freight, Inc. v. Trans. Sec. Admin., 

716 F.3d 679, 683-84 (D.C. Cir. 2013)). This is known as the “fair notice doctrine.” Id. 

The Commission evaluates fair notice using the reasonably prudent person standard. 

Hecla, 38 FMSHRC at 2125. Under that test, application of a standard to a set of facts is 

consistent with fair notice if “a reasonably prudent person familiar with the mining industry and 

the protective purposes of the standard would have recognized the specific prohibition or 

requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). In 

applying the reasonably prudent person standard, the Commission has taken into account a wide 

variety of factors, including the text of the regulation, its placement in the overall regulatory 

scheme, explicit definitions in the regulations or the Act, the regulatory history, the consistency 

of the agency’s enforcement, and whether MSHA has published notices informing the regulated 

community of its interpretation. See Hecla, 38 FMSHRC at 2125-26; Wolf Run Mining Co., 32 

FMSHRC 1669, 1682 (Dec. 2010); Island Creek Coal Co., 20 FMSHRC 14, 24-25 (Jan. 1998); 

Morton Int’l, Inc., 18 FMSHRC 533, 539 (Apr. 1996); Ideal Cement Co., 12 FMSHRC at 2416. 

Also relevant is the testimony of the inspector and the operator’s employees as to whether they 

believed the cited condition to be a violation. Island Creek, 20 FMSHRC at 24-25. Finally, the 

Commission has looked to evidence of accepted safety practices in the industry. See BHP 

Minerals Int’l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996); Ideal Cement, 12 FMSHRC at 2416. 

In this case, the mine operator has not provided sufficient facts to establish a fair notice 

defense. There was some testimony that the work platform without a guard had been in place for 

eight to ten years, but another witness said the platform had only been in place for a year or two. 

Further, there was no indication that the practice of leaving that pulley unguarded was an 

accepted safety practice in the industry or that it had been viewed by a previous inspector. 

Instead, the Secretary has shown that MSHA has published many notices regarding this type of 

guard, and provided power point presentations and training materials. The Secretary introduced 

a portion of MSHA’s Program Policy Manual, which is sent to mine operators. Sec’y Ex. 7. The 

manual states that “the use of chains to rail off walkways and travelways near moving machine 

parts ... is not in compliance with” § 57.14107. Id. The Secretary also introduced a PowerPoint 

presentation that is available to mine operators on the MSHA website. Sec’y Ex. 9. The 

PowerPoint presentation includes a photograph of a pulley on a work platform with a handrail 

and indicates that the guarding is insufficient. Id. at 24. At the Vernalis plant, miners could 

easily crawl over or through the handrails to the work platform to dislodge rock or to work on the 

conveyor. In fact, Respondent’s Exhibit 3-14, an aerial photograph of the conveyor and the 

pulley cited, shows a shovel laying on the work platform, presumably to dislodge rock that may 

be caught in or around the pulley area. A reasonable miner would have been aware that a guard 

was needed in this situation, particularly in view of the information in the PowerPoint and 

Program Policy Manual from MSHA. When the mine added the work platform, it should have 

been aware that the moving pulley needed a guard. 

The MSHA inspector designated the citation as low negligence and non S&S. He 

indicated that he designated the violation as low negligence for several reasons. First some of 

the mine personnel believed that the handrail was sufficient to protect against inadvertent contact 

with the moving pulley. Next the work platform had probably been in place during past 

inspections without the guard. Likewise, the inspector believed the gravity was not serious, 

39 FMSHRC Page 1102
given the limited use of the work platform and the mine’s training and lock-out/tag-out policies. 

Therefore, in addition to the low negligence, Edminister designated the violation as not 

significant and substantial. I agree that the mine operator’s arguments do not negate the 

violation, but instead indicate that the violation was properly designated as low negligence and 

was non-S&S. 

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 “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). The Secretary calculates penalties using the penalty 

regulations set forth in 30 C.F.R. § 100.3 or following the guidelines for special assessments in 

30 C.F.R. § 100.5. When an operator notifies the Secretary that it intends to challenge a penalty, 

the Secretary then petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. 

Commission judges are not bound by the Secretary’s penalty regulations or his special 

assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that 

in assessing civil monetary penalties, the judge must consider six statutory penalty criteria: the 

operator’s history of violations, its size, whether the operator was negligent, the effect on the 

operator’s ability to continue in business, the gravity of the violation, and whether the violation 

was abated in good faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the 

Commission has held that judges must make findings of fact on the statutory penalty criteria. 

Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir. 

1984). Once these findings have been made, a judge’s penalty assessment for a particular 

violation is an exercise of discretion “bounded by proper consideration of the statutory criteria 

and the deterrent purposes underlying the Act’s penalty scheme.” Id. at 294; see also Cantera 

Green, 22 FMSHRC 616, 620 (May 2000). The Commission requires that its judges explain any 

substantial divergence from the penalty proposed by the Secretary. Am. Coal, 38 FMSHRC at 

1990. However, the judge’s assessment must be de novo based upon her review of the record, 

and the Secretary’s proposal should not be used as a starting point or baseline. Id. 

39 FMSHRC Page 1103
The Secretary has proposed a penalty of $114.00 for this violation. The history of 

violations introduced by the Secretary shows that the mine regularly complies with the standards 

and abated this violation in good faith. The mine operator is a large one, and has not raised the 

issue of the ability to pay. The negligence is low and the violation is not significant and 

substantial. Based upon my review of the six penalty criteria, I assess the penalty of $114.00 as 

proposed by the Secretary. 

III.ORDER 

Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $114.00 

within 30 days of the date of this decision. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Randy Cardwell, CLR, U.S. Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor, 

Vacaville, CA 95687 

Luis Garcia, Senior Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 350 S. 

Figueroa Street, Suite 370, Los Angeles, CA 90071 

Alberto Ramirez, Project Manager, Teichert Aggregates, 3500 American River Drive, P.O. Box 

15002, Sacramento, CA 95864 

39 FMSHRC Page 1104
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE 443

DENVER, CO 80202-2536

303-844-3577 FAX 303-844-5268

May 11, 2017 

DECISION

Appearances: Timothy Turner, Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for the Secretary; 

Kristin R.B. White, Esq., Jackson Kelly PLLC, Denver, Colorado, for 

Freeport-McMoRan Sierrita, Inc., for Respondent. 

Before: Judge Manning 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Freeport-McMoRan Sierrita, Inc., (“Freeport”) 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”). 

Freeport operates the Sierrita Mine (“Sierrita”), a surface copper mine in Pima County, Arizona. 

These dockets involve thirteen section 104(a) citations issued by the Secretary to 

Freeport. Prior to hearing the parties settled four of the thirteen citations. On April 18, 2017 the 

Secretary filed a Motion to Approve Partial Settlement and Order Payment. The motion is 

addressed at the end of this decision. The parties presented testimony and documentary evidence 

on the nine remaining section 104(a) citations at a hearing held in Tucson, Arizona and filed 

post-hearing briefs. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

FREEPORT-MCMORAN SIERRITA, 

 INC., 

 Respondent

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2015-0873-M 

A.C. No. 02-00144-385291 

Docket No. WEST 2016-0414-M 

A.C. No. 02-00144-404052 

Docket No. WEST 2016-0691-M 

A.C. No. 02-00144-415949 

Docket No. WEST 2017-0002-M 

A.C. No. 02-00144-418450 

Sierrita Mine 

39 FMSHRC Page 1105
I. DISCUSSION WITH FINDINGS OF FACT 

& CONCLUSIONS OF LAW 

WEST 2015-0873 

Citation No. 8929292 

Citation No. 8929292 alleges a violation of section 56.14100(b) of the Secretary’s safety 

standards and asserts that the emergency steering system on a haul truck was not being 

maintained in a functional condition, which in turn exposed the driver to collision/rollover 

hazards that could result in a fatal accident. The citation states that the truck travels along 

elevated, winding roadways where both small and large mobile equipment travel. The citation 

further alleges that a steering test was conducted three times and the wheels could not be turned. 

Section 56.14100(b) requires that “[d]efects on any equipment, machinery, and tools that affect 

safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” 30 

C.F.R. § 56.14100(b). 

Inspector Enrique Vidal1 determined that an injury was reasonably likely to be sustained 

and, if an injury occurred, it could reasonably be expected to be fatal. He determined that the 

condition was significant and substantial (“S&S”), that one person was affected, and that 

Freeport’s negligence was moderate. The Secretary proposed a penalty of $4,329.00 for this 

alleged violation. 

Summary of the Evidence 

On April 15, 2015 Inspector Vidal conducted an inspection of a haul truck at the Sierrita 

Mine. As part of the inspection he asked the driver to test the truck’s emergency steering system. 

Tr. 43. 

The emergency steering system is designed to provide the driver with backup steering 

power in the event the engine goes out and truck loses power. Tr. 43-44. The system is composed 

of accumulators that hold pressurized nitrogen that can be activated in the event of an engine 

failure to provide the driver with steering power for a limited period of time during which the 

driver can steer the truck into a berm or out of the way. Tr. 43-44, 46. 

Vidal explained that testing the emergency steering system requires two persons. Tr. 45. 

Here, Vidal had the driver test the system by pulling the truck onto a flat area, chocking the back 

wheels, and then having a man on the ground turn off the engine2

 to simulate an engine failure so 

the driver could test the emergency steering from inside the cab. Tr. 44, 69. Vidal was not aware 

of how the truck’s service manual recommended testing the system. Tr. 69. 

 1

 Inspector Vidal has been with MSHA for 18 years and performs approximately 30 

inspections a year. Tr. 9. He is a certified accident investigator, trained as a mechanic and, prior 

to MSHA, worked 29 years in the mining industry, primarily as a heavy equipment mechanic. Tr. 

10-11. 

2

 The haul trucks are equipped with an engine shut off mechanism at ground level. 

39 FMSHRC Page 1106
Vidal testified that, during the test, when the driver of the truck turned the steering wheel, 

the truck wheels only turned a few inches. Tr. 45, 67-68. At some point the driver told Vidal that 

he did not know how to do the test and that the drivers are not allowed to conduct the tests. Tr. 

45, 74. As a result, Vidal allowed a mechanic to conduct another test. Tr. 45, 75. The system was 

ultimately tested three times, and in each case it failed to work properly. Tr. 43, 45. 

Vidal understood that the emergency steering systems on the haul trucks were tested by 

mine personnel every 500 hours as part of preventative maintenance (“PM”). Tr. 47. In his 

opinion, while there is no requirement to conduct a steering test daily, he believed that the testing 

method used by Freeport was not enough because the drivers of the truck, who are told not to test 

the system, would not have knowledge whether the system was operational. Tr. 47-48, 75. Vidal 

observed no issues with the engine that day and the truck’s monitoring systems were not alerting 

to any problems. Tr. 69. 

Based on his observations, Vidal issued Citation No. 8929292 which alleged that Freeport 

had failed to correct the unsafe condition presented by the non-functional emergency steering 

system in a timely manner. Tr. 43. The hazard, according to Vidal, was that a haul truck driver 

going down a ramp would not have emergency steering if the engine went out. Tr. 44. Vidal 

testified that the truck travels near edges of benches and around other smaller vehicles, and the 

lack of emergency steering would create a hazard that could cause a collision or rollover. Tr. 48-

51. It was unclear how long the steering had been defective and Vidal observed no problems with 

the truck’s engine and, although he stated he had seen engines go out, he could not provide 

specific instances. Tr. 49-50. 

Ramon Figueroa3

, a technical coordinator in the mine’s maintenance department, testified 

that he was present when the inspector conducted the tests on the haul truck’s emergency steering 

system. Tr. 88-89, 130, 143, 152. 

Figueroa explained the procedure for checking the emergency steering system in much 

the same way that the inspector did, but stated that the wheels do not need to be turned all the 

way each direction but only need to be turned until movement is observed, and then turned back 

the other direction. Tr. 131-132, 158. In support of this statement, he pointed to the truck’s 

maintenance manual, which states that testing involves visually confirming that the “front wheels 

turn left as the steering wheel is turned left[,]” and vice versa. Tr. 136-136, 159; RX-4 No. 7. 

According to Figueroa, the inspector’s method of having the wheels turned all the way to the 

right and then all the way back to the left is not the correct method to test the emergency 

steering. Tr. 134. The mine checks the system during the PM conducted on the truck every 500 

hours of operation, which usually works out to every three to four weeks. Tr. 132. The manual 

for the truck recommends testing every 500 hours. Tr. 133. 

 3

 Figueroa has worked at this mine since 1974, with short stints elsewhere during layoffs. 

Tr. 87-88. He has worked as a helper, mechanic, and lead supervisor. Tr. 88. As a member of the 

mine maintenance department he is responsible for care of multiple pieces of equipment, 

including haul trucks. Tr. 89. 

39 FMSHRC Page 1107
Figueroa explained that, given the procedure required to test the emergency steering 

system, the system check should not be done by the drivers and should, instead, be completed by 

the maintenance department. Tr. 130-131. The only way a driver can do the test is to park at the 

ready line in the pit where there is not much room and a person on the ground could get hit and 

crushed by a wheel when it turns. Tr. 132-133, 163. 

Figueroa testified that, at the time of the inspection, the truck’s monitoring system 

detected no issues and no alarms were sounding. Tr. 130, 139. According to Figueroa, during the 

first test the wheels turned all the way to the right, but did not come back. Tr. 138-139, 156. On 

the second test the wheels moved a little bit, but not as much as during the first test. Tr. 156. 

Figueroa opined that the condition was created because, when the wheels were turned all 

the way to the right, one of the system’s three accumulators was drained. Tr. 152-153, 158. The 

low accumulator would have been discovered when the truck was brought in for PM. Tr. 139-

167. He stated that the emergency steering system was functioning and the condition was not a 

hazard or safety defect because there was still plenty of pressure in the two other accumulators 

and the tires moved as required by the truck’s manual. Tr. 139-140, 158, 166-167. On crossexamination Figueroa conceded that when the other trucks at the mine were tested that day the 

wheels turned all the way to the left and right. Tr. 160. He further agreed that if a truck in this 

condition had just received PM the defect could be there for a few weeks without being 

corrected. Tr. 162. 

Figueroa explained that, in order for the secondary steering system to be needed, an 

engine or steering pump would have to fail. Tr. 141. This happens on average maybe one to two 

times a year and the truck’s message center will notify the driver to pull over and shut down 

immediately. Tr. 141, 155, 162. 

Fact of Violation 

I find that the Secretary failed to meet his burden of proof and that the citation should be 

vacated. The cited standard requires that defects on equipment that affect safety shall be 

corrected in a timely manner. In order to satisfy the standard the Secretary must show that there 

was a defect that affected safety, and that the defect was not corrected in a timely manner. Here, 

while the cited condition was a defect that affected safety, the Secretary failed to establish that 

the defect was not corrected in a timely manner. 

The emergency steering system’s inability to provide power sufficient to turn the wheel 

more than, at most, a few inches is a defect that affects safety. The purpose of the system is to 

provide steering power for the haul truck in the event the engine goes out and the primary 

steering system loses power. Without this system, the driver of the haul truck would not have full 

steering control of the truck in the event the engine went out. Drivers are aware of the system 

and undoubtedly would rely on it if the engine went. Notably, while losing an engine is not a 

frequent occurrence at this mine, it does happen on average one to two times a year. Had this 

truck’s engine gone out, the driver would have had limited control over the direction of travel. 

While this limited control may be sufficient in many instances, the limitation nevertheless affects 

safety given that the driver would not have the same level of control that a fully functional 

39 FMSHRC Page 1108
system would provide. I credit Vidal’s testimony that the truck travels on hills and benches, and 

operates in the area of other smaller equipment. Given the limited control, and the areas in which 

this truck operated, both the driver’s safety and the safety of others in the area were impacted. 

According, I find that this defect affected safety. 

Freeport argues that there was no defect affecting safety because the truck passed the 

emergency steering test as described in the truck’s service manual. Freeport Br. 3. This argument 

lacks merit. While the service manual may have outlined a method for testing the emergency 

steering system, the manual is silent as to how far the wheels must turn during the test. Although 

the parties dispute how much the wheels turned during the three tests, there is no dispute that, 

when tested, the wheels on this truck did not turn all the way in each direction like the other 

trucks tested that day did. 

The Secretary failed to establish that the defect was not corrected in a timely manner. In 

Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001), the Commission stated that “[w]hether 

the operator failed to correct the defect in a timely manner depends entirely on when the defect 

occurred and when the operator knew or should have known of its existence.” Here, the 

Secretary did not introduce credible evidence establishing when the defective condition 

developed.4

 Nevertheless, the Secretary argues that the court should find that the condition was 

not corrected in a timely manner because the mine did not require its drivers to conduct a preshift check of the system and Freeport only checks the system every 500 hours of operation as 

part of its PM program. Sec’y Br. 8. Consequently, the Secretary argues, “it was possible the 

defect could sit dormant for up to four weeks before the operator found out [the defective 

condition] existed.” Id. I find this argument unavailing. 

The Secretary argues that the mine should check the system during every pre-shift 

examination and should have known of the condition’s existence. I disagree. There is no 

requirement that the emergency braking system be checked as part of a pre-shift examination. 

The truck’s service manual recommends testing only every 500 hours, which is exactly what 

Freeport did. Further, I credit Figueroa’s testimony that having mechanics in the maintenance 

department test the system, as opposed drivers on the ready line where there is not much room, is 

the safer method. 

I find that Freeport’s reliance on the manual in determining when and where to test the 

system was reasonable. The Secretary has failed to meet his burden of proof. Citation No. 

8929292 is VACATED. 

Citation Nos. 8929293, 8929294 and 8929295 

Three of the citations in this docket allege essentially identical violations of section 

56.14101(a)(3) of the Secretary’s safety standards, which requires that “[a]ll braking systems 

installed on the equipment shall be maintained in functional condition.” 30 C.F.R. § 

 4

 Commission Judges have vacated citations under similar circumstances. Northern 

Aggregate, Inc., 37 FMSHRC 562, 594 (Mar. 2015) (ALJ); Nelson Quarries, Inc., 36 FMSHRC 

3143 (Feb. 2014) (ALJ) 

39 FMSHRC Page 1109
56.14101(a)(3). MSHA inspector Enrique Vidal issued each of the citations. I address the 

citations together. 

Citation No. 8929293 alleges that the left front brake assembly of a haul truck was 

leaking brake oil, which affected the truck’s braking effectiveness in the event of an emergency 

and exposed the driver to collision and rollover hazards which could result in a fatal accident. 

The citation further alleges that the truck travels elevated, winding roadways where all types of 

mobile equipment travel. 

Citation Nos. 8929294 and 8929295 allege essentially the same thing, with the only 

difference being that those citations involve a right front brake assembly and left rear brake 

assembly respectively. 

In each of the three citations Inspector Vidal determined that an injury was unlikely to be 

sustained, but that if an injury occurred, it could reasonably be expected to be fatal. He 

determined that the conditions were not S&S, that one person was affected, and that Freeport’s 

negligence was moderate. The Secretary has proposed a penalty of $585.00 for each of these 

alleged violations. 

Summary of the Evidence 

On April 21, 2015 Inspector Vidal was at the mine to conduct a mandatory inspection. Tr. 

13. While inspecting the equipment in the pit he observed what he believed were violative 

conditions on three different haul trucks. 

Vidal testified that the brake assemblies on the three subject haul trucks have two types of 

oil, one of which is gear oil and is used on the spindle and large bearings, and another of which is 

brake oil and used for the brake assembly. Tr. 22. The two types of oil are easy to differentiate by 

their “thickness, tackiness.” Tr. 22. While gear oil is roughly 50 to 60 weight and very thick, 

brake oil is approximately 30 weight and much thinner and clearer. Tr. 22-23. Vidal testified that 

the purpose of brake oil in the brake system is to make the brake function by compressing the 

springs. Tr. 20-21. The brake oil is added to the brake assembly via an oil tank on the exterior of 

the truck. Tr. 21. The wheel bearings with gear oil are next to the brake assemblies. Tr. 23. 

According to Vidal, mine personnel check all fluids every shift, including the brake oil, and top 

off the oil tanks if there is any leakage. Tr. 24, 73. 

Vidal testified that section 56.14101(a)(3) requires the service brakes to work and that a 

brake test is not required in the field when a leak is observed since he already knows that 

something is wrong with the system. Tr. 72-74. The only time testing is required is when there is 

a question whether the brakes are operational. Tr. 74. However, on cross-examination he agreed 

that a leak may not necessarily affect functionality. Tr. 61-62. Moreover, he acknowledged that 

the technology for brakes had changed quite a bit since he was a mechanic. Tr. 61. 

Vidal observed and photographed brake oil leaking from one of the brake assemblies on 

each of the three trucks. Tr. 19, 32-33, 37; GX-9 p. 1, GX-3 P-1, GX-6 p.1. He was adamant that 

the leaks were brake oil, as opposed to gear oil. Tr. 23-24. Based on his observations, Vidal 

39 FMSHRC Page 1110
issued Citation Nos. 8329293, 8929294, and 8929295 to Freeport for alleged violations of 

section 56.14101(a)(3) because the break assemblies were leaking and, therefore, were not being 

maintained. Tr. 18-19, 32, 38-39. In each instance Vidal believed that an injury was unlikely to 

be sustained, but that if an injury occurred it would be fatal given that the trucks operate all day, 

in all types of weather, on elevated haul roads and a collision or rollover could occur. Tr. 27-29, 

35-36, 39. 

On cross-examination Vidal agreed that he did not test the functionality of the brakes on 

the three cited trucks, was not aware of any issues with the functionality of the brakes, and no 

tests were done to determine where the leaking oil was coming from. Tr. 63-667. In writing the 

citations he relied only on his visual observation of the leaking assemblies. Tr. 63-66. Further, he 

agreed that the trucks’ monitoring systems did not indicate any problems with the brakes and he 

was not sure if the overstroke pins had been engaged. Tr. 63-67. Moreover, he conceded that it 

was unlikely overstrokes would ever be triggered since the oil tanks were topped off every shift. 

Tr. 73. 

Ramon Figueroa was present during the inspection of each of the three trucks and 

testified that the three citations involved the same issue, i.e., leaking brake assemblies. Tr. 91-92, 

106. While he agreed that there was an oil leak, he disagreed that the leak was at the service 

brake on each of the three trucks. Tr. 92. He explained that, while the model numbers of the three 

trucks were not identical, the brake assemblies were designed the same. Tr. 93-94. Each brake 

assembly consisted of three different systems: the service brake component which includes a 

brake piston that applies the service brake, a cooling package that runs through the brake itself, 

and a parking brake release piston. Tr. 94. Each of these systems runs on its own independent 

circuit of brake oil. Tr. 103, 119, 163. The cooling system runs on brake oil at low pressure and 

high volume and provides a heat exchange to the assembly, but is not part of the actual service 

braking system. Tr. 94, 145-146. 

Figueroa described the brake assembly in detail through the use of schematic drawings. 

Tr. 96-99, 122-; RX-3. Relying on those drawings, as well as the work orders that were 

submitted on the trucks, he explained that the leaks were not from the service brake lines, but 

rather from the Duo-Cone seals that separate the brake assemblies from the wheel groups.5 Tr. 

95, 99-100, 102-103, 145. The Duo-Cone seals are what hold in the cooling system brake oil. Tr. 

124,144, 146. Had the leaks been from the service brake circuits, the overstroke switches would 

 5

 Figueroa explained that the brake system uses hydraulic oil as brake oil. Tr. 97. While 

the terms used by the parties differ from witness to witness, it is clear they were talking about the 

same thing. For clarification’s sake I refer to the fluid as brake oil throughout this decision. The 

brake oil, which is used by the brake assemblies, is a lighter, 10 weight brake oil, while the gear 

oil used by the wheel groups is a thick and sticky 60 weight oil. Tr. 95, 99-100, 145. 

39 FMSHRC Page 1111
have been thrown and an alarm would have been triggered.6

 Tr. 106. Here, there were no 

overstrokes and the trucks’ monitoring systems had not triggered an alarm or warning from an 

overstroke, or indicated any other problems with the brakes. Tr. 89-90, 106-107. The service 

brakes were in perfect condition. Tr. 164. Figueroa knew the leaks were not from the parking 

brake circuits because hydraulic pressure is what enables the parking brakes to release and, had 

there been a drop in pressure, the brakes would have dragged. In addition, there were no 

temperature issues with the parking brakes. Tr. 107. 

Figueroa explained that these types of leaks are caused when dirt gets behind the O-rings, 

or in the face of the Duo-Cone seals, and those parts start to wear out. Tr. 102. While the DuoCone seals were not in perfect condition, they were functional. Tr. 164. Because these leaks 

involved brake oil from the cooling circuits and not from the service brake circuits they did not 

affect the functionality of the service brakes and there were no safety hazards. Tr. 103-104. These 

trucks have 300 gallon brake oil tanks that service each of the three circuits and are checked by 

the driver each day. Tr. 104, 148. The driver will report these types of leaks and the trucks will be 

serviced during the next opening in the department’s PM schedule. Tr. 104-105. In the event a 

problem is detected with the braking systems, miners are trained to pull over, set the parking 

brake and call maintenance. Tr. 120. 

Figueroa testified that the inspector did not test the brakes that day and none of the 

drivers reported weak brakes, brake noise or brake chatter. Tr. 108-109. When the brakes were 

taken apart in order to fix them, the mechanics found everything was functional and the only 

issue was the leaking Duo-Cone seals. Tr. 109. 

Fact of Violation 

I find that the Secretary failed to meet his burden and that each of the three citations 

should be vacated. The cited standard requires that braking systems on equipment be maintained 

in functional condition. Consequently, in order for the Secretary to establish a violation he must 

show that the braking systems were not maintained in a functional condition. 

The Secretary argues, and I agree, that the cited standard’s use of the term “braking 

systems” encompasses the entire brake assembly. Sec’y Br. 4. Here, the brake assemblies 

included three different components which utilized brake oil: the service brake, the parking 

brake, and the brake cooling components. Each of these components had its own independent 

brake oil circuit which was served by the same brake oil reservoir. 

 6

 Figueroa explained that the service brake includes a large air chamber that actuates a 

piston which converts air pressure to hydraulic pressure to operate the service brake. Tr. 108, 

126. The hydraulic pressure is between 675 and 750 psi and, if there is a leak, the pressure is 

going to go all the way down and push the oil out and cause the overstroke switch to be thrown, 

and in turn cause an alarm to sound in the cab, after which the truck would be taken out of 

service. Tr. 108, 124, 127. The overstroke switch is bolted to the air system and is triggered when 

the there is a leak in the hydraulic circuit of the service brake that allows the air piston to go too 

far. Tr. 127. 

39 FMSHRC Page 1112
I credit Figueroa’s testimony that, in each case, the source of the leaking brake oil was the 

Duo-Cone seals where oil was leaking from the cooling circuits. Figueroa credibly testified as to 

why a leak at the Duo-Cone seal could only be from the cooling circuit and not from either the 

parking brake or service brake components. Specifically, he explained that, had the leaks been 

from the parking brake circuits a drop in pressure would have caused the parking brakes to drag 

since pressure is what enables the parking brakes to disengage. No signs of dragging, such as 

temperature issues, were present. Further, he explained that, had a leak been present in the 

service brake circuits the brake overstroke switches would have been triggered and an alarm 

would have sounded, yet there were no overstrokes and the trucks’ monitoring systems reflected 

such. Notably, the inspector did not conduct any testing to determine the sources of the leaks. 

Given that the sources of the leaking oil were the cooling circuits, the next question that must be 

asked is whether those leaks affected the functionality of the braking systems. 

I find that the Secretary failed to meet his burden of proof to establish that the braking 

systems were not being maintained in a functional condition. At no point during his testimony 

did Vidal address the brake assemblies’ cooling components and the Secretary presented no 

evidence on the impact a leak in the cooling system would have on the functionality of the brake 

systems. In fact, when asked on direct examination what was the purpose of the oil in the brake 

systems, Vidal responded that it was “used to compress the springs[.]” Tr. 20-21. No testimony, 

from either party, indicates that springs were involved in either the cooling or service brake 

systems. Moreover, although there is no dispute that leaks did exist on each of the cited brake 

assemblies, the presence of a leak, by itself, does not establish that a brake system is not being 

maintained in a functional condition. Vidal confirmed as much on cross-examination when he 

agreed that a leak on a part may not necessarily affect functionality. Tr. 61-62. Moreover, as 

conceded by Vidal, the braking systems of haul trucks are significantly more sophisticated and 

complex than they were when he was a mechanic. 

While the Secretary takes issue with the Freeport’s practice of filling the brake oil 

reservoir each shift, and argues that doing so only amounts to a “Band-Aid masking the 

defect[,]” the issue here is not whether the Duo-Cones had a “defect,” but rather whether the 

braking systems were maintained in a “functional” condition. Sec’y Br. 5. Here, I find no 

credible evidence that these leaks affected the functionality of the braking systems. Freeport’s 

practice of refilling the reservoirs each shift, while not optimal in the Secretary’s opinion, 

enabled the braking systems to function as designed. The leak would have been repaired during 

the next PM. Under different circumstances a leak may in fact evidence an operator’s failure to 

maintain a brake system in a functional condition but, under the facts of this case, the Secretary 

has failed to meet his burden of establishing that any of the three components utilizing the brake 

oil was not functioning as intended. Accordingly, Citation Nos. 8929293, 8929294 and 8929295 

are VACATED. 

WEST 2016-0414 

Citation No. 8934664 

Citation No. 8934664 alleges a violation of section 56.20003(a) of the Secretary’s safety 

standards and asserts that, due to a holding tank overflowing, the base of the stairway in the 

39 FMSHRC Page 1113
sump floor area was obstructed by an accumulation of material made up of slurry and water that 

created a slip, trip and fall hazard that could result in a lost time injury. Section 56.20003(a) 

requires that “[a]t all mining operations . . . [w]orkplaces, passageways, storerooms, and service 

rooms shall be kept clean and orderly[.]” 30 C.F.R. § 56.20003(a). 

Inspector Enrique Vidal determined that an injury was unlikely to be sustained, but that if 

an injury occurred, it could reasonably be expected to result in lost workdays or restricted duty. 

He determined that the condition was not S&S, that one person was affected, and that Freeport’s 

negligence was moderate. The Secretary has proposed a penalty of $243.00 for this alleged 

violation. 

Summary of the Evidence 

On January 7, 2016 Inspector Vidal was traveling in the area of the mine’s molybdenum 

plant when he observed an accumulation of material on a stairway and on the floor at the bottom 

of the stairway. Tr. 55, 78; GX-16 p. 1. Vidal testified that the stairway was the dedicated access 

point to an area where miners worked “24/7.” Tr. 55-56, 58. After having his memory refreshed 

he acknowledged that the area was the secondary containment area. Tr. 71-72. Vidal learned that 

the accumulation of material, which consisted of a “slurry of concentrated water mixture[,]” 

some of which was dry, had come from a tank that had overflowed due to a “burp” in the system. 

Tr. 55-56. A burp occurs when material does not flow through the system as designed, which in 

turn plugs up the system and causes a spill. Tr. 55. Vidal was not sure how long the material had 

been present, or how often the tank overflowed. Tr. 56. There was a sump in the area that could 

be used to clear the spillage, but it was not working. Tr. 56-57. While Vidal initially testified that 

workers were in the area, on cross-examination he acknowledged that the workers were actually 

50 feet away from the area and he did not see any persons in the sump/secondary containment 

area. Tr. 58, 72. 

Based on his observations, Vidal issued Citation No. 8934664 to Freeport for failing to 

keep the cited work area clean. Tr. 54. He determined that Freeport exhibited moderate 

negligence because any miner could have identified this problem and documented it, reported it, 

and barricaded it. Tr. 59. Vidal acknowledged that the area was barricaded. Tr. 59. While no 

mitigating circumstances were presented by the mine at the time, Vidal noted that a supervisor 

was not in the area and, as a result, he did not believe there was high negligence. Tr. 59. 

David Scott Robinson7

, who is currently a health and safety specialist for Freeport, was 

escorting the inspector when the cited condition was discovered. Tr. 81-82. Robinson explained 

that, prior to the citation being written, the mine had experienced issues with the leach process 

and the plant had been stopped. Tr. 78. When the process was stopped all of the harder and 

heavier material that had been flowing though the plant settled in the pipes and vessels. Tr. 78. 

That morning the plant was restarted and a backflow occurred, which in turn caused material to 

overflow. Tr. 78. This occurs roughly six times a year. Tr. 82, 85. 

 7

 Robinson has been a health and safety specialist at the mine for four years, and prior to 

that worked in the security department. Tr. 76-77. 

39 FMSHRC Page 1114
Robinson explained that the overflow material fell into the secondary containment area, 

which is below the leach process and designed specifically for the purpose of holding material in 

the event of an overflow. Tr. 78-80; GX-16 p. 1. The area has a three foot tall wall surrounding it 

in order to hold material and is equipped with a sump that is only run when there is spill and 

material needs to be sucked up and put back into the system. Tr. 79-80, 83. Robinson explained 

that the dry material on the stairs would be removed with squeegees and hoses and eventually 

sucked back up through the sump and put into the system. Tr. 83, 85. On the day in question 

miners were cleaning the area and pushing material toward the sumps. Tr. 80. Employees would 

only be in the area in order to turn on the sumps and use the squeegees and hoses to push 

material to the sump. Tr. 79-81, 86. 

Fact of Violation 

I find that the citation should be vacated. The cited standard, as relevant to this case, 

requires that workplaces and passageways shall be kept clean and orderly. The secondary 

containment area and staircase were clearly a workplace and passageway. I credit Robinson’s 

testimony that those areas are only entered in the event of a spill for the sole purpose of cleaning 

the area, which ultimately is what the standard is intended to encourage. In Nelson Quarries, I 

vacated a citation where the Secretary issued a housekeeping citation for material covering a 

walkway to a screen. Nelson Quarries, Inc., 30 FMSHRC 254 (Apr. 2008) (ALJ). There, in 

vacating the citation I stated that there was no evidence that miners walked or worked in the area 

without first cleaning it. Here, cleaning is the only work conducted in the cited area. 

The purpose of section 56.20003(a) is to encourage mine operators to keep workplaces 

clean and orderly. When the specific purposes of an area is to contain material which, by its very 

nature, is not clean and orderly, a mine operator should not be held liable under this standard for 

allowing that area to become dirty and unorderly. Holding otherwise would be illogical and such 

an interpretation would lead to the absurd result that mine operators would be in violation of the 

standard while in the process of cleaning or preparing to clean, which is the activity the standard 

seeks to encourage. See Consolidation Coal Co., 15 FMSHRC 1555 (Aug. 1993) (Rejecting 

interpretation of a standard which would defeat the intention of the standard). I credit Robinson’s 

testimony that on the day in question the mine was actively engaged in addressing issues related 

to the spill, which had just developed that morning. Accordingly, Citation No. 8934664 is 

VACATED.

8

WEST 2016-0691 

This docket includes two citations that involve many of the same facts and circumstances. 

Accordingly, I address the citations together where appropriate. 

 8

 The transcript of the hearing includes testimony from the inspector indicating that the 

cited area was barricaded. Tr. 59. The Secretary, in his brief, disputes this testimony and states 

that the area was not barricaded. Sec’y Br. 10. The Secretary offers no cite in support of the 

statement. In reaching my decision to vacate this citation I have not relied upon the testimony 

offered by the inspector on this issue. 

39 FMSHRC Page 1115
Citation No. 9302025 alleges a violation of section 56.16009 of the Secretary’s safety 

standards and asserts that two persons were not clear of a load, i.e., a 700 pound steel pipe 

spacer, while it was suspended at roughly head height. The persons were steadying the load with 

their hands while standing on top of a roughly two foot wide cement divider with a drop-off of 

approximately four feet on each side. This exposed them to being struck should the load fall 

while persons were next to it. Section 56.16009 requires that “[p]ersons shall stay clear of 

suspended loads.” 30 C.F.R. § 56.16009. 

Inspector Robert Jacobs9

 determined that an injury was reasonably likely to be sustained 

and, if an injury occurred, it could reasonably be expected to result in lost workdays or restricted 

duty. He determined that the condition was S&S, that one person was affected, and that 

Freeport’s negligence was moderate. The Secretary has proposed a penalty of $783.00 for this 

alleged violation. 

Citation No. 9302026 alleges a violation of section 56.11001 of the Secretary’s safety 

standards and asserts that a person was not clear of a load, i.e., a 700 pound steel pipe spacer, 

while it was suspended approximately 15 feet above the individual. The individual had a fall 

harness on which was attached to a retractable lanyard that crossed under the load to its anchor 

point approximately eight feet away. If the load had fallen it would have struck the lanyard and 

pulled the person into contact with the load. Section 56.11001 requires that “[s]afe means of 

access shall be provided and maintained to all working places.” 30 C.F.R. § 56.11001. 

Inspector Robert Jacobs determined that an injury was reasonably likely to be sustained 

and, if an injury occurred, it could reasonably be expected to be fatal. He determined that the 

condition was S&S, that one person was affected, and that Freeport’s negligence was moderate. 

The Secretary has proposed a penalty of $2,598.00 for this alleged violation. 

 Summary of the Evidence 

On May 12, 2016 Jacobs observed a 700 pound, three foot diameter pipe spacer being 

lowered by a boom truck into a steel structure where miners were waiting. Tr. 178-179, 203. The 

boom operator was approximately 30 to 40 feet away from where the miners were and could not 

see the load in the structure. Tr. 180-181. The opening of the structure through which the spacer 

was being lowered was approximately ten feet by ten feet. Tr. 180. Miners inside the structure 

were standing on top of cement walls, approximately four to five foot tall, that ran parallel to 

each other and created a trough. Tr. 180, 250. One of the miners standing on the wall inside the 

structure was observed guiding the spacer into place with his hands while it was being lowered. 

Tr. 180-181. As Jacobs approached the scene, the miner pulled his hands back from the load, 

which was at approximately shoulder height at the time. Tr. 181. Jacobs observed no taglines on 

the load, nor were mine personnel using any other tools to maneuver the spacer while it was 

suspended. Tr. 181. 

 9

 Jacobs has been with MSHA for over eight years and has been trained on crane safety. 

Tr. 177-176. Prior to working for MSHA, Jacobs worked nine years at a remote mine where he 

was in charge of compliance. Tr. 176-177. The remoteness of that mine required that deliveries 

be made by helicopter via suspended loads. Tr. 176. As a result, Jacobs is familiar with the 

regulations for suspended loads. Tr. 194 

39 FMSHRC Page 1116
Jacobs, when questioned about photos of the miners lowering the spacer into place, 

agreed that the photos depicted the area in question, but stated that he did not take the photos and 

the photos did not reflect the conditions as he observed them that day. Tr. 181-182; GX-20. He 

explained that, while the photos show a tagline connected to the load and miners using the 

tagline as well as push-pull sticks, taglines were not connected, nor were miners using push-pull 

sticks when he observed the scene. Tr. 182-183, 201-202. 

Jacobs was concerned that the miner touching the spacer was at risk if the load were to 

shift or drop, as the load could contact the miner or cause him to fall from the narrow cement 

wall he was standing on. Tr. 182, 211. A miner who lost his balance, given the narrow wall, 

would not be able to readjust his center of balance and, in turn, would fall. Tr. 211. Further, if the 

load were to fall while the miner was guiding it with his hands, Jacobs stated the miner’s natural 

reaction would be to grab the load, which would cause the miner to fall with the load. Tr. 204. A 

miner not touching the load is at less of a risk of falling with the load. Tr. 204. Jacobs opined that 

the miners should have put taglines on the load prior to suspending it and used those taglines to 

maneuver the load. Tr. 183. 

Based on his observations, Jacobs issued Citation No. 9302025 because the miner with 

his hands on the spacer was not clear of the load, as is required by the cited standard. Tr. 178-

179. He explained that, in addition to staying out from underneath the load, the standard requires 

people to stay out of areas where the load could swing or shift if the rigging failed so that if the 

load were to drop they would not be struck. Tr. 179, 197, 202. While Jacobs had never seen a 

boom shift with a suspended load, he believed it could occur if the operator misread a signal 

from one of the miners relaying information to the operator. Tr. 184, 205. On cross-examination 

Jacobs acknowledged that he did not observe any problems with the rigging or boom, or the 

training of the boom operator, and explained that, in order for changes to be made to the rigging, 

a load must be put down. Tr. 196, 205-206. Counsel for Freeport questioned Inspector Jacobs 

regarding the applicability of an MSHA Program Policy Letter (“PPL”), RX-7. Jacobs testified 

that the PPL was not clear and disagreed with Freeport’s counsel that the PPL allowed miners to 

approach and touch a suspended load to attach and detach equipment to/from the load. Tr. 197-

199. 

Shortly after Jacobs observed the miner with his hands on the load he went to look for a 

supervisor. Tr. 207. During that time, and while the load was being lifted back out of the 

structure and still above the opening, one of the miners in the structure moved such that his 

retractable lanyard, which was providing fall protection, crossed the open area below the 

suspended load. Tr. 187. Jacobs explained that, had the load fallen, it would have most likely 

come in contact with the lanyard and pulled the person into the load. Tr. 187-188. The men 

inside the structure were working in an area approximately 12 to 14 feet wide and were standing 

on top of a concrete wall approximately 10 to 12 inches wide, roughly 4 to 5 feet above the 

bottom of the trough. Tr. 18-7-188. The miner at issue had clamped his lanyard onto a beam and 

crossed over to another side of the opening, roughly 6 to 8 feet from his anchor. Tr. 188-189. 

Jacobs explained that this fall protection system, as used here, would not prevent a fall 

because lanyards, which function like a seatbelt, have to be at near vertical from the anchor point 

in order to work, and will not catch until a certain degree from vertical, e.g., 30 degrees, is 

39 FMSHRC Page 1117
reached during a fall. Tr. 188-190. Here, while the lanyard would likely catch if the miner fell 

backwards, if a miner fell forwards, being 8 feet away from the anchor point would result in a 

miner falling while the lanyard retracted and until that degree from vertical was made, and then 

swinging the miner into the opposing cement wall once the lanyard did catch. Tr. 188-189. 

Jacobs noted that the lanyard was beneath the load for only approximately five seconds. Tr. 189. 

Based on his observations, Jacobs issued Citation No. 9302026 because the working area 

in the structure was not safe, as evidenced by the walls the miners were standing on, their 

lanyard clamping locations, and because a miner’s retractable lanyard was exposed under the 

suspended load. Tr. 186-187, 206. In order to satisfy the standard the operator could have 

provided beam clamps for the lanyards closer to their working positions. Tr. 190. Jacobs 

designated the citation as S&S and determined that a fatal injury was reasonably likely to occur 

because, if the load fell, nothing would have prevented serious injury since the load would have 

contacted the lanyard and, because the miner’s harness attachment point was between his 

shoulder blades, pulled the miner into the load headfirst. Tr. 191. Jacobs attributed the violation 

to moderate negligence because there was no supervisor present, which he found to be a 

mitigating circumstance. Tr. 192. 

Mario Rivera10, a diagnostic mechanic at the time the subject citations were issued, 

testified that on the day in question the mine was using a boom truck to lower a sweep and 

spacer into the structure.11 12 Tr. 215. Given the dimensions of the opening in the structure the 

spacer had to be lowered in a vertical position. Tr. 222. 

After lowering the sweep into the trough at the bottom of the structure the miners began 

to lower the spacer into the structure. Tr. 218-219, 221. Rivera testified that a 10 foot tagline was 

attached to the spacer when it was being lowered and stated that the mine never suspends a load 

without a tagline. Tr. 226, 236-237, 246. Rivera, who was inside the structure and standing on 

one of the walls of the trough, reached out when the load was at about chest/belly height and 

touched the load with his hands to turn the load to connect a “come-along” to an eye-bolt on the 

 10 Rivera is currently the mill supervisor and has worked at the mine since 2014. Tr. 214. 

He has received training on suspended loads, operating cranes, and rigging through the National 

Crane Operators, as well as on-site training at the mine. Tr. 216. 

11 Rivera referred to the spacer as a “spool.” For clarification’s sake, I refer to the object 

as a spacer throughout this decision. The sweep and spacer are essentially pipe conduits for 

slurry. Tr. 218-219. 

12 Rivera’s testimony relied heavily on describing what was occurring in the photos, GX20, which were not taken at the time the citations were issued. Tr. 247. At points during Rivera’s 

testimony on direct examination, counsel for Freeport would ask what was occurring in the 

photos and would then ask about what occurred the first time the spacer was lowered. This 

resulted in confusing testimony as to what time period Rivera was discussing. 

39 FMSHRC Page 1118
spacer, which would then be used to pull the spacer into place on top of the sweep.13 Tr. 221, 

223-225, 227-228, 238, 246. He did not use the tagline to turn the load because it was on the 

opposite side of the spacer when the load was lowered to him. Tr. 237. Rivera opined that, had 

the spacer come loose it would have fallen straight down and he was not worried about it falling. 

Tr. 240. At that point the inspector arrived and had the miners lift the spacer out of structure. Tr. 

227, 229. Rivera was not sure if the inspector saw the tagline. Tr. 246. Mine personnel then 

conducted a safety meeting where they checked the rigging and found a way to re-rig the load 

and lower it into place.14 Tr. 226, 229. 

Rivera testified that at no point did his retractable lanyard go under the suspended load, 

and he never saw the retractable lanyard worn by the other miner in the area go under the load. 

Tr. 231, 242. Had he seen that occur he would have immediately stopped the job. Tr. 242. Rivera 

explained that the retractable lanyard systems he and the other miner in the area were wearing 

would have engaged immediately if one of them fell since the shock absorbers had been 

removed. Tr. 241-242. On cross-examination Rivera stated that while the lanyard would have 

prevented him from falling to the ground, it would not have prevented him from swinging. Tr. 

252. 

Citation No. 9302025 

Fact of Violation 

I find that the citation should vacated. The cited standard requires that miners “stay clear” 

of suspended loads. There is no dispute that the spacer was a suspended load. For reasons set 

forth below, I find that the Secretary has failed to meet his burden to establish that Freeport 

failed to comply with the Secretary’s interpretation of the cited standard. 

The Secretary’s regulations do not define what “stay clear of” means in the context of 

section 56.16009. In Dawes Rigging & Crane Rental, the Commission explained that “stay[ing] 

clear . . . requires more than simply staying out from directly underneath a suspended load[,] . . . 

and [w]hether a person is clear of a suspended load must be determined by considering the 

particular facts surrounding the violation.” 36 FMSHRC 3075, 3078 (Dec. 2014) (citing 

Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981)). 

While the standard requires miners to stay clear of suspended loads, the Secretary, in 

Program Policy Letter No. P17-IV-01, has crafted an exception which allows miners, under 

 13 A “come-along” is “a small portable winch usually consisting of a cable attached to a 

hand-operated ratchet.” Merriam-Webster.com, https://www.merriamwebster.com/dictionary/come-along (last visited April 24, 2017). Rivera noted that the mine had 

initially tried to use push-pull sticks as part of the job but, given the small area the miners were 

working in and the length of the sticks, stopped using them. Tr. 234-235, 247. 

14 Rivera explained that the miners were ultimately able to get the spacer into place by 

attaching a chain fall to lower the spacer into a horizontal position after it was on the ground and 

then attaching a “come-along” to an eyebolt on the spacer which was then used to move the 

spacer horizontally into place. Tr. 227, 234, 236, 249. 

39 FMSHRC Page 1119
certain circumstances, to attach and detach equipment to suspended loads. RX-7. The PPL, the 

subject of which is “Suspended Loads (30 C.F.R. §§ 56/57.16009),” states that“[i]f the only 

activity at issue involves miners (including riggers) working near load-attaching equipment in 

order to attach and detach this equipment from the object or materials being hoisted, and if 

MSHA determines that miners are not exposed to a foreseeable risk of being struck by load 

attaching equipment, MSHA does not intend to cite under §§ 56/57.16009.”15 RX-7 p. 2. 

The Secretary, in his brief, concedes that the standard “does not unequivocally . . . forbid 

the use of hands to position a load[.]” Sec’y Br. 14. However, he argues that “‘a reasonably 

prudent person familiar with the mining industry and the protective purposes of the standard’ 

would certainly not expect to be in compliance with the standard when miners are present within 

the arc of the load, directly under the load, or in the area that would be affected should the load 

fall.’” Sec’y Br. 14 (citing CCC Group, Inc., 34 FMSHRC 1192, 1198 (May. 2012) (ALJ). I 

disagree when considering the facts presented here. 

At hearing the inspector testified that the PPL was not clear on whether the exception for 

allowing attaching or detaching of equipment applied to “suspended loads.” Tr. 198-199. While 

the PPL could have been better crafted, I find that it clearly applies to the attaching or detaching 

of equipment to suspended loads. Otherwise, the PPL would serve no purpose, since there is no 

need to stay clear of unsuspended loads that would require an exception under this standard. 

I credit Rivera’s testimony that he approached and touched the load for the sole purpose 

of attaching the “come-along” to an eye-bolt on the spacer, which would then be used to pull the 

spacer into place on top of the sweep. The PPL defines “load attaching equipment” as being 

equipment “such as, the load blocks, ropes, slings, shackles, and any other ancillary attachment.” 

While a “come-along” is not explicitly listed, I find that it fits within the category of “other 

ancillary equipment.” 

Neither the Secretary nor the Commission is bound by the policy statements included in 

PPLs. However, this PPL provides a reasonable interpretation of the cited standard. That 

interpretation allows for miners to contact suspended loads for the purpose of attaching and 

detaching equipment. As relevant to this matter, it allowed for the miner to contact the load for 

the purpose of attaching the come-along. Mine operators should not be held liable for violations 

of mandatory standards where their actions fit squarely within interpretations published by the 

Secretary. I find that the Secretary has failed to meet his burden and that the citation should be 

VACATED.

16

 15 While the PPL became effective on February 6, 2017, I find it can be used to interpret 

the safety standard. This PPM was issued to clarify the standard rather than to change its 

meaning. 

16 While not critical to my decision, I agree with Rivera that the load was suspended 

above an opening and, had the load fallen, it would have fallen straight down into that opening 

and not struck miners standing on the walls around the opening, which is ultimately the concern 

of the cited standard. See CCC Group, Inc., 34 FMSHRC 1192, 1198 (May 2012) (ALJ) (stating 

that the “cited standard is aimed at preventing a miner from being struck by a suspended load.”). 

39 FMSHRC Page 1120
Citation No. 9302026 

Fact of Violation 

I find that the Secretary has established a violation of the cited standard. The cited 

standard requires that safe means of access be provided and maintained to all working places. 

There is no dispute that miners were in the area to install the sweep and spacer. As a result, the 

area was a working place. I find that safe access was not provided in the area because of the 

passage of the lanyard under the suspended load and the position of the miner’s lanyard anchor. 

I credit Jacob’s testimony that a miner was positioned such that his lanyard extended 

under the suspended load. I further credit his testimony that if the lanyard were struck by the 

suspended load the miner would have been pulled into the opening and potentially into the load. 

Allowing a miner’s lanyard to pass under a suspended load does not constitute safe access. 

Freeport argues that the inspector did not observe the actual condition and, instead, only 

speculated that the lanyard passed under the suspended load. Freeport Br. 15. I do not believe 

that accurately reflects the testimony. I find that, while Jacob’s testimony appears to indicate he 

did not see the miner move from one position to the other, he did see the lanyard positioned 

under the suspended load. Rivera testified that his lanyard did not move under the suspended 

load and he did not observe the lanyard of the other miner in the area pass beneath the load. 

However, Jacobs testified that the condition existed for only “[f]ive seconds or so. Not very 

long.” Tr. 189-190. Given the short duration that the lanyard was under the suspended load, I find 

it likely Rivera simply did not see the condition. 

I also find that safe access was not provided because of the position of the anchor points 

for the retractable lanyard worn by at least one miner. Freeport disputes that miners who fell 

from their locations on the wall would have struck the bottom of the trough. Freeport Br. 16. 

However, Rivera did not dispute that the lanyard would not prevent a miner from swinging if he 

fell. I credit Jacobs’ testimony that, given the location of the miner’s anchor point approximately 

eight feet away, a miner who fell into the opening would have swung and struck a concrete wall, 

which is unsafe. See Rock N Road Quarry, 36 FMSHRC 1278 (May 2014) (ALJ). The Secretary 

has proven that safe access was not provided. 

Gravity & S&S 

An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In 

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

violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of 

danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek 

Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a 

39 FMSHRC Page 1121
violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 

1275, 1278-79 (Dec. 1998). 

The Commission has explained that the focus of the Mathies analysis “centers on the 

interplay between the second and third steps.” ICG Illinois, 38 FMSHRC 2473, 2475 (Oct. 2016) 

(citing Newtown Energy Inc., 38 FMSHRC 2033 (Aug. 2016)). The second step requires the 

judge to adequately define the “particular hazard to which the violation allegedly contributes[,]” 

and then determine whether “there exists a reasonable likelihood of the occurrence of the hazard 

against which the mandatory safety standard is directed.” Id. at 2475-2476. This determination 

must be made “based on the particular facts surrounding the violation[.]” Id. The third step then 

requires the judge to assume the existence of a hazard and assess whether the hazard “was 

reasonably likely to result in serious injury.” Newtown at 2038; ICG Illinois at 2476. 

The “reasonably likely” provision does not require the Secretary to prove that an injury 

was “more probable than not.” U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In 

addition, the “Secretary need not prove a reasonable likelihood that the violation itself will cause 

injury” but, rather, that the hazard contributed to by the violation is reasonably likely to cause an 

injury. Musser Engineering, Inc. and PBS Coals Inc., 32 FMSHRC 1257, 1280-81 (Oct. 

2010)(emphasis added); Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011). 

I find that the Secretary established that the violation was S&S and that the gravity was 

serious. I have already found that Freeport violated the standard. Here, the hazard to which the 

violation allegedly contributes is two-fold. First, the location of one miner’s lanyard under the 

suspended load exposed the miner to having his lanyard hit by a falling suspended load, which in 

turn would cause the miner to be pulled into the opening and potentially striking the load. The 

Secretary presented no evidence that this was anything but an isolated occurrence. I credit 

Rivera’s testimony that, had he seen a lanyard positioned under the suspended load, he would 

have stopped the job. Moreover, Jacobs testified that he saw no problems with the rigging, boom, 

or the training of the boom operator. Accordingly, I find that this particular hazard was unlikely 

to occur. However, that is not the end of the analysis. 

Second, the location of the miner’s lanyard anchor as relative to the miner’s position 

exposed the miner to falling and swinging into a concrete wall. I credit Jacob’s testimony that 

miners who lost their balance would not be able to regain it while standing on the narrow walls 

and, in turn, would fall. The only protection from falling was the retractable lanyard system. 

Here, while the lanyard may have prevented a miner from striking the ground, it would not have 

prevented a miner from swinging into the concrete wall. A miner falling from an elevated surface 

and swinging into a concrete wall is likely to sustain an injury of a reasonably serious nature. 

Negligence 

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

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

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

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). The Commission 

analyzes negligence by considering what actions would have been taken under the same or 

39 FMSHRC Page 1122
similar circumstances by a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the safety standard. Brody Mining LLC, 37 

FMSHRC 1687, 1702 (Aug. 2015). 

I find that Freeport was moderately negligent. Inspector Jacobs determined Freeport was 

moderately negligent and that the lack of a supervisor in the area at the time was a mitigating 

circumstance. I agree. Freeport had conducted a job hazard analysis and was-using preestablished anchor points for the lanyards. While the location of those anchor points may not 

have been appropriate, Freeport had taken steps in an effort to provide a safe working place. I 

find that moderate negligence is appropriate. I assess a penalty of $2,600.00 for this violation. 

WEST 2017-0002 

This docket includes two citations that involve many of the same facts and circumstances. 

Accordingly, I address the citations together where appropriate. 

Citation No. 8833133 alleges a violation of section 56.16007(a) of the Secretary’s safety 

standards and asserts, in pertinent part, that a miner did not use a tagline while steadying a 

suspended load by hand as it was placed in the bed of a truck, thereby exposing persons to the 

hazard of a fall or shifting of the load, which would have caused blunt force permanently 

disabling injuries. The citation further alleges that, while a tagline was present at some point, it 

fell off the load. Section 56.16007(a) requires that “[t]aglines shall be attached to loads that may 

require steadying or guidance while suspended.” 30 C.F.R. § 56.16007(a). 

Inspector Sidney Garay17 determined that an injury was reasonably likely to be sustained 

and, if an injury occurred, it could reasonably be expected to be permanently disabling. He 

determined that the violation was S&S, that one person was affected, and that Freeport’s 

negligence was moderate. The Secretary has proposed a penalty of $918.00 for this alleged 

violation. 

Citation No. 8833134 alleges a violation of section 56.16009 of the Secretary’s safety 

standards and asserts, in pertinent part, that a miner did not use a tagline while steadying a 

suspended load by hand as it was placed in the bed of a truck. As a result, the miner was not 

clear of the load, which exposed him and other persons working nearby to the hazard of a fall or 

shifting of the suspended load. Section 56.16009 requires that “[p]ersons shall stay clear of 

suspended loads.” 30 C.F.R. § 56.16009. 

Inspector Garay determined that an injury was reasonably likely to be sustained and, if an 

injury occurred, it could reasonably be expected to be permanently disabling. He determined that 

 17 Inspector Garay has been with MSHA for 15 years and currently supervises the Mesa 

Arizona South field office. Tr. 255. In addition to performing approximately 24 mine inspections 

a year he is responsible for reviewing the performance of his inspectors, interacting with the 

mining community, making field visits to operators, and providing information to industry 

groups. Tr. 256. He has worked as an accident investigator and received training, both while with 

MSHA and prior to his employment with MSHA, regarding safe crane operation and suspended 

loads. Tr. 256-257, 281. He currently holds no certifications with respect to cranes. Tr. 258, 282. 

39 FMSHRC Page 1123
the violation was S&S, that one person was affected, and that Freeport’s negligence was 

moderate. The Secretary has proposed a penalty of $918.00 for this alleged violation. 

 Summary of the Evidence 

On July 5, 2016 Freeport personnel were using a boom truck to lift materials up to and 

down from an elevated surface on a large shovel. 18 The materials19 were being loaded onto a 

pallet which was rigged with a nylon sling that could be lifted by the boom. Tr. 324. 

Inspector Garay was at the mine to conduct a spot inspection for an issue unrelated to this 

matter. Tr. 260, 282-283. While traveling in a vehicle with one of the mine’s representatives from 

the health and safety department, Garay observed a miner in the bed of the boom truck. Tr. 261-

262, 282. The miner was approximately four feet off the ground and not using fall protection. Tr. 

263. According to Garay, the miner was under a load suspended from the boom, had has arms 

extended with hands elevated above his head and was touching the suspended load. Tr. 261-262, 

268, 285-286. Garay initially observed the miner’s hands holding both the side and bottom of the 

load. Tr. 285. As the load was lowered the miner’s hands moved from holding the bottom and 

side of the load, to palming the load. Tr. 303. Garay recalled that the suspended load did not have 

a tagline on it and the miner’s palms were out as he touched the load and guided it into place on 

the bed of the boom truck. Tr. 270, 285, 298. Garay was approximately 100 to 200 feet away 

from the miner when he first observed the condition. Tr. 267, 287. By the time Garay and the 

mine representative arrived at the boom truck, the load was already in the bed of the truck. Tr. 

261, 287. 

According to Garay, the miner in the back of the boom truck said that a tagline had fallen 

off of the load at some point and the miner did not think it was needed. Tr. 262, 297. Garay found 

a tagline laying on the ground next to the boom truck. Tr. 262. 

Garay issued two citations based on his observations. First, he issued Citation No. 

8833133 because, although a tagline had initially been attached to the suspended load, it was no 

longer on the load. Tr. 262. Garay designated the citation as S&S and determined that a 

permanently disabling injury was reasonably likely to be sustained because the miner was 

standing underneath the suspended load, with his hands extended above his head steadying the 

load. Tr. 265. Based on his experience the load could shift or fall, or the boom operator could 

accidently hit a button triggering the load to jerk, which could cause the load to strike the miner 

and/or make the miner fall off of the truck and cause permanently disabling injuries such as a 

fracture or blunt force injuries. Tr. 265-266. He conceded that it was not windy that day and that 

the miner was only maneuvering the load by hand for a moment, but could have used a tagline to 

do the job. Tr. 265, 270. Garay attributed the violation to moderate negligence given that there 

 18 The boom truck was equipped with a crane attached to the frame of the truck. Tr. 263. 

The crane, or boom, can be operated by a person standing on either side of the truck. Tr. 263. 

The truck bed was approximately 8 to 10 feet wide, and 20 to 24 feet long. Tr. 263. 

19 While Garay testified that the pallet was loaded with multiple boxes that were not 

broken down, Tr. 264, 286, Freeport’s witnesses testified that the boxes were broken down and 

stacked on the pallet. This dispute of fact does not affect my analysis. The boxes were empty. 

39 FMSHRC Page 1124
was no supervision of the job by agents of Freeport, which he believed was a mitigating 

circumstance. Tr. 266. 

Garay explained that he issued the second citation, Citation No. 8833134 because the 

miner was not clear of the suspended load since he was touching it with his hands as the load 

was above his head. Tr. 267. According to Garay, in order to comply with the standard, a miner 

should never touch a suspended load. Tr. 268, 291. He explained that there is not enough time to 

react when a load falls free and he has seen miners who touch loads as they are being brought to 

the ground have their hands crushed. Tr. 268-269.20 Garay designated the citation as S&S and 

determined that a permanently disabling injury was reasonably likely to be sustained for 

essentially the same reasons set forth in the first citation, i.e., the miner was not clear of the load 

and could be struck by the load if it shifted or fell. Tr. 270-272. He noted that the mine had failed 

to use the tools designed to prevent a miner from being next to a suspended load, e.g., taglines 

and push-pull sticks, despite the fact that a tagline had been present at one point. Tr. 271. Garay 

attributed the violation to moderate negligence given that there was no supervision of the job by 

agents of Freeport, which he believed was a mitigating circumstance. Tr. 272. 

Luis Bernal21, who was a health and safety specialist for Freeport at the time in question, 

testified that he was the mine representative traveling with the inspector that day. Tr. 305-306. 

Bernal stated that, while traveling in a truck with the inspector, he could see the suspended load 

at approximately “mid-cab high, mid-shovel height” from about 300 to 400 yards away. Tr. 309-

310. At that point no one was guiding the load and he could not tell if there was a tagline on it. 

Tr. 310-311. He first saw the miner touching the suspended load when the pallet was about waist 

high. Tr. 308, 315. He could not tell if the miner’s hands were fully extended or close to his body. 

Tr. 317. When Bernal and Garay arrived at the miner’s location, Garay asked where the tagline 

was and the miner said it was on the ground and he had taken it off the load. Tr. 313. 

Bernal explained that although miners are taught to never get under a suspended load, 

miners may touch a suspended load and miners typically do so to position a load when it is at the 

lowest point. Tr. 311-312. In all his time as a health and safety specialist, he never saw someone 

stand under a suspended load. Tr. 312. Here it appears that the miner was touching the load to 

position it on the truck bed. Tr. 308-309. Bernal testified that if he had seen someone under a 

load with their hands above their head guiding the load down it would have been his 

responsibility to stop the job and he would have had a conversation with the miner and their 

supervisor. Tr. 311. While the mine tries to utilize taglines and push-pull sticks when they have 

the opportunity, there are situations when that is not possible. Tr. 312. On cross-examination, 

Bernal conceded that it would not have been difficult to use push-pull sticks or taglines to 

maneuver or adjust this particular load. Tr. 315-316 

 20 Counsel for Freeport questioned Inspector Garay regarding the applicability of the 

MSHA PPL, RX-7, discussed above in the context of the suspended spool. As mentioned above, 

the PPL applies to attaching or detaching equipment. 

21 Bernal has been with Freeport for over five years. Tr. 305. He is currently a conveying 

supervisor, but was a health and safety specialist prior to that. Tr. 305. 

39 FMSHRC Page 1125
Arthur Laguna22, a diagnostic mechanic at the mine, testified that he was the miner in the 

bed of the boom truck at the time in question. Tr. 322. Laguna stated that he was not standing in 

the swing radius of the load while it was coming down. Tr. 326-327. While the load had a tagline 

on the “bottom end of the pallet”23 as it was being lowered, he removed the tagline because it 

was in an awkward position for final placement, and threw it on the ground so that the load 

would not set on top of the tagline when the load was placed. Tr. 327-329. Laguna acknowledged 

that, in the alternative, the tagline could have been tied to the side of the pallet in a position 

where it would have been useful to him. Tr. 339. He explained that the pallet holding the 

material, which was approximately four feet by four feet, was about knee high when it reached 

him, and he gave directions to the boom operator so that the load was not above him. Tr. 324-

325, 329, 334, 337. Laguna stated that he would never position himself under a suspended load 

since the load could fall. Tr. 329-330. 

Laguna explained that, while the bed of the truck was loaded with other materials that 

had already been lowered down, he had left a clear path to walk and enough room to set the 

pallet in place. Tr. 325, 327-328. To do so, once the load reached a certain point, he had to touch 

it to maneuver it into a position for final placement on the truck. Tr. 325, 339. Laguna believes 

that he used only his palms to place the load and that his feet were clear of the load. Tr. 325-326, 

333. He acknowledged it was possible that if the boom operator shifted the boom he would be 

knocked off the truck. Tr. 337-338. He agreed that he had used the same method for final 

placement of other materials that had been lowered from the shovel via the boom truck. Tr. 338-

339. 

Laguna acknowledged that could have done the job safely with a push-pull stick and that 

the sticks are designed to help with suspended loads. Tr. 329, 336-337. Nevertheless, on redirect 

he stated that, based on his experience, the sticks create a hazard because if the load shifts the 

stick could push him. Tr. 340. 

Laguna testified that the inspector arrived after he placed the load and disconnected it. Tr. 

331. He informed the inspector that the load had a tagline he had taken off and that the mine 

allows persons to touch suspended loads in order to place them. Tr. 331-332. If he had thought 

anything about the job was unsafe he could have stopped the process, but he thought he was clear 

of the load at all times. Tr. 329-330. On cross-examination, when asked if he could have moved 

the load after it was set down, he responded that he could not have done so because there was not 

much room for him to work given that there was only about a two feet by six feet area for him to 

stand. Tr. 335-336. Moreover, he acknowledged that, while he left an exit way in case the load 

unexpectedly shifted, exiting could mean jumping off of the truck. Tr. 340-341. 

 22 Laguna has been at Sierrita for six years and previously worked at other Freeport 

mines. Tr. 319. As a diagnostic mechanic he is responsible for maintaining equipment. Tr. 320. 

He has been in the mining industry for 28 years. Tr. 319. He has had training on suspended loads, 

and handling and working with suspended loads is a regulator part of his job. Tr. 320-321. 

23 Laguna’s testimony that the tagline was at the “bottom end of the pallet” is somewhat 

ambiguous. On one hand it could mean that the tagline was attached to underside of the pallet, or 

it could be interpreted to mean the tagline was attached near the bottom of the pallet on the end. 

39 FMSHRC Page 1126
Citation No. 8833133 

Fact of Violation 

I find that the Secretary has established a violation of the cited standard. The cited 

standard requires that suspended loads have taglines when the loads may require steadying or 

guidance. There is no dispute that the Laguna had to guide the suspended load into its final 

placement. Laguna testified that he removed the tagline before guiding the load into its final 

placement. Accordingly, a tagline was not attached to the load while it was being guided, as is 

required under the standard. 

Gravity & S&S 

I find that the Secretary has not established that the violation was S&S. I have already 

found that Freeport violated the standard when a tagline was not attached to the load while it was 

being guided. Here, the hazard to which the violation allegedly contributes to is a miner being 

unable to safely steady or guide a load due to the lack of a tagline. A tagline would not have been 

of much use in this instance because Laguna could not pull the pallet into position with the 

tagline. A stick or other device would have been more useful. 

The Secretary failed to establish that there existed a reasonable likelihood that, under the 

facts of this case, a miner would be unable to safely steady or guide this load due to the lack of a 

tagline. For the same reasons discussed below in the context of the “staying clear” citation, I find 

that it was unlikely Laguna would be struck by the suspended load. In addition, I credit Laguna’s 

testimony that the location of the tagline on the load when it was attached was such that it could 

not be used to place the load into position on the truck. As a result, the lack of tagline did not 

affect the likelihood of the occurrence of the hazard. Moreover, and consistent with my below 

findings on the “staying clear” citation, an injury was unlikely to occur as a result of this 

condition. As a result the violation was not S&S. I find that the gravity was not serious. 

Negligence 

I find that Freeport was moderately negligent. Inspector Garay determined Freeport was 

moderately negligent and that the lack of a supervisor in the area at the time was a mitigating 

circumstance. While Laguna testified that he knowingly removed the tagline before using his 

hands to position the load in the bed of the truck, which could potentially weigh in favor of a 

higher negligence designation, I defer to Inspector Garay’s determination. I assess a penalty of 

$300.00 for this violation. 

39 FMSHRC Page 1127
Citation No. 8833134 

Fact of Violation 

 I find that the Secretary has proven a violation of the cited standard. There is no dispute 

that the miner was touching the load and guiding it into place.24 The Secretary, in his brief, 

concedes that the standard “does not unequivocally . . . forbid the use of hands to position a 

load[.]” Sec’y Br. 14. In determining whether a person is “clear” of a suspended load the court 

must consider the “particular facts surrounding the violation.” Dawes Rigging, 36 FMSHRC at 

3078. Here, the miner was operating in a small area and testified that “exiting” the area if the 

load shifted would likely require him to jump off the truck. I hold that although the safety 

standard does not forbid a miner from touching a suspended load or standing close to a 

suspended load in all circumstances, the particular facts of the situation are critical. In this 

instance, Laguna was working in a very small area on the back of a truck, with a four foot drop 

off to the ground, directing a suspended load into place. Given the confined space in which he 

was working, it was critical that Laguna remain away from the load until it was just above the 

bed of the truck. I find that he was not “clear” of the load. The Secretary has established a 

violation.25

Gravity & S&S

I find that the Secretary has not established that the violation was S&S. I have already 

found that Freeport violated the standard when the miner touched the suspended load in order to 

guide it into place. Here, the hazard to which the violation allegedly contributes to is a miner 

being struck by a suspended load. 

The Secretary failed to establish that there existed a reasonable likelihood that, under the 

facts of this case, Laguna was likely to be struck by this suspended load. Conflicting testimony 

was offered by each of the three witnesses who described the events of that day. Inspector Garay 

testified that he observed the miner with his hands above his head reaching up and touching the 

load. He made this observation from a moving vehicle approximately 100 to 200 feet away. 

 24 Freeport, in a footnote, cites the decision of a judge with the Occupational Safety and 

Health Review Commission (“OSHRC”) for the proposition touching a suspended load for final 

placement may be necessary. Freeport Br. 18. OSHRC ALJ decisions are not binding on this 

court and that decision was not “examined and adopted by OSHRC or a reviewing court.” H. 

Bittle & Son, Inc., 38 FMSHRC 2446, 2451 n. 7 (Sept. 2016) (ALJ). Accordingly, I decline to 

consider that decision in reaching my finding in this matter. 

25 Freeport argues that Citation No. 8833133 and Citation No. 8833134 are duplicative 

because they do not impose separate and distinct duties on the operator. Freeport Br. 19-20. I 

disagree. Section 56.16007(a), at issue in Citation No. 8833133, requires that taglines be attached 

to loads if the loads will require steadying or guidance, while Section 56.16009, at issue in the 

present citation, requires that miners stay clear of loads. These are clearly different duties, as 

evidenced by the fact that Freeport could have complied with section 56.16007(a) had the miner 

not removed tagline, while at the same time being in violation of 56.16009 by touching the 

suspended load while it was too high above the truck-bed. 

39 FMSHRC Page 1128
Bernal testified that he first saw the suspended load being lowered from 300 to 400 yards away 

while in the vehicle with the inspector and that the miner in the bed of the boom truck did not 

touch the load until the pallet was at about waist height. Laguna testified that he would never 

position himself under a suspended load and that the pallet was at approximately knee height 

when he first touched it. Moreover, he stated that his feet were clear of the load and that he only 

touched the load with his palms out. 

For purposes of determining whether the violation was S&S, I will assume that Laguna 

first touched the load with his palms out while it was at about eye level or slightly higher. The 

hazard that the safety standard is designed to prevent in this instance is the risk that Laguna 

would be hit by the suspended load and knocked off the truck. Given the particular facts 

presented, as discussed above, I find that it was not reasonably likely that Laguna would be 

struck by the load. It was not windy that day, the boom operator was in the final process of 

lowering the load, and Laguna was steadying the load and helping to move it into place as it was 

lowered. Although it was possible that the load of empty boxes could shift, it was not reasonably 

likely. “[A] vague observation that suspended loads move in unpredictable ways” is insufficient 

to establish an S&S violation. Dawes Rigging, 36 FMSHRC at 3078. Of course, if I assume that 

the load shifted and moved out of position or if I assume that the boom operator accidently 

bumped the wrong lever, the load could strike Laguna. However, such events were unlikely. If he 

were to be struck, he would likely suffer a lost work-days type of injury. 

The Secretary failed to establish that an injury was reasonably likely to be sustained. The 

S&S designation is not appropriate, but the violation was serious. 

Negligence 

I find that Freeport was moderately negligent. Inspector Garay determined Freeport was 

moderately negligent and that the lack of a supervisor in the area at the time was a mitigating 

circumstance. I affirm Inspector Garay’s negligence determination. I assess a penalty of $500.00 

for this violation. 

II. SETTLED CITATIONS 

 The Secretary filed a Motion to Approve Settlement of the other citations in the above 

captioned docket. The proposed settlement is set forth in the table below: 

Citation/Order Proposed 

Penalty 

Settlement 

Amount 

Other Modifications to 

Citation/Order 

Docket No. WEST 2016-0414 

8934448 $138.00 $138.00 None 

8934275 $108.00 $108.00 None 

8934269 $138.00 $138.00 Modify from Moderate Negligence to 

Low Negligence 

Docket Totals: $384.00 $384.00 

39 FMSHRC Page 1129
Docket No. WEST 2015-0873 

8929291 $392.00 $392.00 Modify from Moderate Negligence to 

Low Negligence 

Docket Totals: $392.00 $392.00 

Overall 

 Totals: 

 

 $776.00 

 

 $776.00 

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

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Act. The Secretary’s Motion for Approval of Settlement is GRANTED. 

III. APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. 30 U.S.C. § 820(i). The parties have stipulated that Freeport is a large 

operator and the penalties will not affect its ability to remain in business. The citations which 

were not vacated were issued in May and July of 2016. Freeport had approximately 68 violations 

in the fifteen months preceding the issuance of these citations, roughly 17 of which were S&S. 

The gravity and negligence are discussed above. The citations were timely abated. Based on the 

penalty criteria I assess a total penalty of $3,400.00 for the citations addressed at hearing. 

III. ORDER 

For the reasons set forth above, Citation Nos. 8929292, 8929293, 8929294, 8929295, 

8934664, and 9302025 are VACATED. Citation No. 9302026 is AFFIRMED as issued. Citation 

Nos. 8833133 and 8833134 are MODIFIED as set forth above. Freeport-McMoRan Sierrita, 

Inc., is ORDERED TO PAY the Secretary of Labor the sum of $4,176.00.00 for both the settled 

citations and those addressed at hearing within 40 days of the date of this decision. 

 /s/ Richard W. Manning 

 Richard W. Manning

 Administrative Law Judge 

Distribution: 

Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., 

Suite 216, Denver, CO 80204 

Kristin R. B. White, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-

1958 

39 FMSHRC Page 1130
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19TH ST. SUITE 443

DENVER, CO 80202-2500

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

May 23, 2017 

DECISION 

Appearances: Schean G. Belton, Office of the Solicitor, U.S. Department of Labor 

 618 Church Street, Suite 230, Nashville, TN 37219 

 

 Tyler H. Fields, Webster County Coal, LLC 

 1146 Monarch Street, Lexington, KY 40513 

Before: Judge Simonton 

INTRODUCTION 

This case is before me on a civil penalty petition filed by the Secretary of Labor, acting 

through the Mine Safety and Health Administration (MSHA), against Webster County Coal, 

LLC (“WCC” or “Respondent”), pursuant to the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815. This docket involves Citation No. 9045176, issued on October 1, 2015 for a 

specially assessed penalty of $65,000. The citation was designated Significant and Substantial 

(S&S), reasonably likely to result in a fatal injury, and the result of Webster County Coal’s 

moderate negligence.1 The parties presented testimony and documentary evidence at a hearing 

held on February 28-29, 2017 in Madisonville, Kentucky. 

At hearing, Inspector Ray Cartwright and Inspector Jeremy Walker testified for the 

Secretary. WCC Miners Shane Armstrong, Brandon Beach, and Patrick Scott were also called by 

the Secretary and testified. Mine Foreman Merle Carter, Mine Manager Gary Thweatt and Safety 

Director Chris Gunn testified for Webster County Coal. I have reviewed the evidence and 

testimony at length, and for the reasons that follow I AFFIRM the underlying violation and S&S 

designation as alleged and increase WCC’s negligence from moderate to high. However, I find 

 1

 At hearing, the Secretary moved to modify the citation to allege high negligence. See 

Secretary’s Post-Hearing Brief (Sec’y Br.) at 10; Tr. 104-05. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

WEBSTER COUNTY COAL, LLC, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2016-233 

A.C. No. 15-02132-401970 

Mine: Dotiki Mine 

39 FMSHRC Page 1131
that the Secretary failed to establish that the violation merited a special assessment. I assess a 

civil monetary penalty of $20,000. 

 

I. FINDINGS OF FACT AND SUMMARY OF TESTIMONY 

The Dotiki Mine is an underground bituminous coal mine located in Clay, Kentucky, and 

operated by Webster County Coal, LLC. On September 28, 2015, contract miner Aaron Rickard 

was replacing suction hoses on his side of a roof bolter when a large rock fell onto him and 

struck him on the back and hip. Tr. 157-58. Rickard sustained serious injuries, including a 

displaced hip, lacerated spleen, torn urethra, three broken vertebrae, and internal bleeding. Tr. 

297. Miner Shane Armstrong, Rickard’s pin buddy, witnessed the rock fall on Rickard before he 

could suggest backing up the roof bolter. Tr. 158. Armstrong believed that Rickard was dead 

until he saw him move his head. Tr. 171-72. Unable to move the rock off of Rickard by himself, 

Armstrong used a five-foot pry bar to lift the rock and allow Rickard to crawl out from under it. 

Tr. 159. He then left Rickard to get help. Tr. 160. 

 Armstrong located Mine Foreman Merle Carter and informed him of the incident.2

 When 

Carter arrived at the scene, he found Rickard kneeling under the ATRS of the roof bolter. Tr. 

220. Carter saw the large rock on the roof bolter and assumed that the rock fell and struck 

Rickard, though he did not know exactly where the rock made contact. Tr. 235. Carter did not 

discuss the specifics of the accident with Rickard or Armstrong, and was apparently unaware that 

Armstrong pried Rickard loose prior to getting help. Tr. 225. Rickard remained conscious and 

complained of pain to his back and stomach. Tr. 224. Carter moved Rickard to protect him from 

other potential falls and performed a brief physical examination. Tr. 221-22. He tested Rickard’s 

alertness, squeezed his fingertips to check capillary refill, and began feeling around for signs of 

physical damage. Tr. 222. Carter noticed that Rickard had an obvious hip injury, but he could not 

tell whether it was a deformity or swelling. Tr. 222-23. Because Rickard was talking, exhibited 

no breathing issues, and presented stable vital signs, capillary refill, and skin color, Carter did 

not believe that the injuries were serious. Tr. 222, 224. He was aware of the requirement to call 

MSHA under § 50.10(b), but did not believe it was necessary in this instance. Tr. 233. 

 Nonetheless, Carter decided to radio for Rickard to be evacuated from the mine and 

transported by Life Flight, a type of air evacuation, to Deaconess Hospital in Evansville, Indiana. 

Tr. 223-24. Carter testified that he chose to arrange Life Flight to ensure that Rickard reached the 

hospital quickly and avoided additional pain associated with ground travel from the mine. Tr. 

223. He quickly moved Rickard on to a stretcher and into an ambulance to evacuate the mine. Tr. 

227.

 Miners Brandon Beach and Patrick Scott rode with Rickard and Carter in the ambulance 

to the mine surface. Beach testified that he was instructed to keep conversation with Rickard and 

note any changes to his condition. Tr. 180. He recalled that Rickard was awake and conscious 

throughout the 15 to 20 minute ride to the mine surface. Tr. 180. Though he has no medical or 

 2

 Carter was the Rotating Mine Foreman at the time of Rickard’s accident. Tr. 218. He 

has worked at Dotiki for approximately 27 years and has been a certified EMT for approximately 

22 years. Id. 

39 FMSHRC Page 1132
EMT training, Beach could tell that Rickard’s hip was damaged, and noted that Rickard kept 

placing his hand on his backside to indicate where he was in pain. Tr. 179-80. He did not believe 

the injury to be life threatening. Tr. 179, 182. Beach saw the rock that struck Rickard and 

estimated that the rock was about the size of a table, but could not testify to its thickness. Tr. 

178. 

 Patrick Scott performed a secondary examination of Rickard during the ambulance ride.3

Scott immediately noticed that Rickard’s left foot was turned outward, an indication of a hip or 

pelvic injury, but testified that he could not determine the precise injury. Tr. 189. Scott checked 

Rickard’s vitals and examined for signs of internal bleeding and potential shock. Tr. 189. He 

noted that Rickard’s heart rate was elevated, but that his blood pressure and oxygen levels 

appeared normal. Tr. 191-92. Scott was unsure whether Rickard’s elevated heart rate was the 

result of the high amount of pain or a sign of internal injuries. Tr. 191-92. Scott examined 

Rickard’s abdomen to check for internal bleeding. Tr. 193. While Scott stated that Rickard did 

not exhibit obvious signs of internal bleeding, he testified that he could not definitively rule out 

the possibility. Id. Though he knew that pelvic injuries had the potential to be life-threatening, 

Scott considered Rickard to be in stable condition. Tr. 191, 194. 

 Scott next treated Rickard for potential shock despite no outward signs of the condition. 

Tr. 192. Rickard remained fully conscious throughout his preliminary treatment and evacuation, 

possessed normal skin coloring, and exhibited no sudden changes in condition. Id. He placed 

Rickard on oxygen and covered him with a blanket while Beach and Carter continued talking to 

him. Tr. 205. Upon finishing his examination, Scott determined that Rickard’s vitals were stable 

and that the injury was serious but not life-threatening. Tr. 211, 223-24, 228. The time from the 

injury to reaching the surface appeared to be about 30 to 40 minutes. Tr. 227-28. Rickard was 

flown to Deaconess Hospital in Evansville, Indiana, the closest trauma center to the Dotiki Mine. 

Tr. 272. He would later be transferred to Nashville, Tennessee for additional surgery. Tr. 99. 

 Dotiki’s management learned about the injury shortly after Rickard was transported to 

Deaconess Hospital. General Manager Gary Thweatt was not present at the mine at the time of 

the accident but received reports of the accident at home. He testified that he was informed that 

Rickard sustained a hip injury and his vitals were stable. Tr. 280.4

 Thweatt traveled to Deaconess 

Hospital on the night of the accident to provide support to Rickard’s family. Tr. 270. He testified 

that he learned that Rickard required surgery and was stable, but did not glean additional details 

pertaining to Rickard’s specific injuries. Tr. 277-78. Thweatt did not overhear any information 

relating to the severity of his injuries, and did not get the impression that Rickard’s condition 

was life threatening. Tr. 283. Furthermore, Thweatt believed that Rickard was not in a lifethreatening situation because he was in the hospital and had already undergone initial surgery. 

 3

 Scott has been a miner for eight years and an EMT for over ten years. Tr. 185. He has 

responded to between 20 and 25 calls while working for Webster County Coal. Tr. 196-97. 

4

 Thweatt has been the General Manager at Dotiki since 2012, and has been a certified 

EMT and EMT instructor since 1997. Tr. 259-61. He has also served as Assistant General 

Manager, Safety Director, and Assistant Safety Director since beginning work at Dotiki in 2003. 

Id. 

39 FMSHRC Page 1133
Tr. 327-28. He remained at the hospital until around midnight when Deputy Safety Director Jake 

Quisenberry arrived. Tr. 281. 

 

 Chris Gunn, Safety Director at Dotiki, learned of the accident on the morning of 

September 29, 2015 when he awoke to missed calls and text messages from Gary Thweatt and 

Jake Quisenberry.5 Tr. 334. Gunn was aware that Rickard had undergone surgery for internal 

injuries but testified that he never believed the injury had the reasonable potential to cause death. 

Tr. 384, 387. Gunn testified about his internal investigation into the accident. Tr. 353-54. He also 

testified to his role in Inspector Cartwright’s Part 50 Audit. Tr. 353-54. The Part 50 Audit was 

conducted after an unrelated fatality at the Dotiki Mine, and was completed after the instant 

citation was issued and specially assessed.6 Specifically, Gunn testified that many of the citations 

issued pertained to a miscommunication with a contractor nurse, who mistakenly believed that 

injuries treated with dermabond were not reportable under the Mine Act. Tr. 347-49. 

WCC did not inform MSHA of the accident at any point on the day of the injury. MSHA 

Inspector Jeremy Walker discovered the accident on September 29 by word of mouth.7

 He began 

looking on various social media sites to verify the occurrence and discovered that Rickard’s 

girlfriend had posted a brief description and updates relating to the accident on Facebook. Tr. 63-

64; Ex. 4. Walker informed his supervisor, who called Dotiki and confirmed the accident. Tr. 65. 

On September 30, Inspector Walker visited Dotiki to conduct an accident investigation. Id. He 

interviewed the miners that were present at the time of the accident. Tr. 71. Walker found that 

Dotiki had already removed the rock from the accident scene and had continued mining in the 

area. Tr. 122. 

On October 1, 2017, Inspector Walker issued Citation No. 9045176 alleging a violation 

of 30 C.F.R. § 50.10(b) for failing to contact MSHA within 15 minutes after discovering that 

Rickard’s injuries had the reasonable potential to cause death. Ex. 7. Walker designated the 

citation as a Significant and Substantial (S&S) violation that was reasonably likely to result in 

fatal injuries and the result of Webster County Coal’s moderate negligence. Tr. 103-104. At 

hearing, Walker testified to increase WCC’s negligence from moderate to high because he later 

learned that Gary Thweatt visited the hospital and thus believed that WCC had additional 

 5

 Chris Gunn has worked at Dotiki Mine for 20 years and is a certified Mine Emergency 

Technician. Tr. 331-32. He has been Safety Director at Dotiki since 2011. Tr. 332. 

6

 Prior to the hearing, WCC filed a motion in limine to exclude the citations because they 

were irrelevant to the issue now before the court. On February 8, 2017, this court held that the 

Secretary may admit evidence and testimony relating to the Audit limited to the citations that 

were accepted and pertained to events that occurred prior to the September 28, 2015 accident at 

issue in this case. See Order Denying Respondent’s Motion in Limine to Exclude the Secretary’s 

Evidence and Testimony Related to the Part 50 Audit of the Dotiki Mine. 

7

 Inspector Jeremy Walker worked at Dotiki Mine from 2002 to 2011. Tr. 59. Walker has 

been a certified EMT since 1999. Tr. 60. He also used to be an EMT instructor and a member of 

the federal mine rescue team. Tr. 62. He has been a mine inspector for MSHA since 2011, and an 

accident investigator since 2013. Tr. 61-62. 

39 FMSHRC Page 1134
opportunities to contact MSHA but continually failed to do so. Tr. 104-05. WCC abated the 

citation when it notified MSHA of the accident on October 5, 2017. Ex. 7. 

II. PARTY ARGUMENTS 

 The Secretary argues that the Respondent violated section 50.10(b) because WCC failed 

to contact MSHA within 15 minutes of learning that Rickard’s injuries had the reasonable 

potential to cause death. Secretary’s Post-Hearing Brief (Sec’y Br.) at 3. The Secretary asserts 

that Carter and Scott should have notified MSHA because they examined Rickard, immediately 

noticed the serious injury to his hip, and treated him for potential shock. Sec’y Br. at 6. 

Furthermore, the Secretary alleges that WCC’s decision to call in air evacuation indicated that 

mine management knew that Rickard sustained serious injuries, and nonetheless chose not to call 

MSHA within the requisite 15 minutes. Id. at 6-7. 

 The Secretary contends that the violation was S&S because it deprived MSHA of the 

opportunity to fully investigate the cause of the accident, thus exposing miners to potential 

uncorrected hazardous conditions. Sec’y Br. at 10. At hearing, the Secretary argued to modify 

the citation’s negligence designation from moderate to high because WCC repeatedly failed to 

notify MSHA even after receiving additional information that spoke to the severity of Rickard’s 

injuries. Id. at 11-12. The Secretary believes that WCC failed to report the accident to MSHA 

following Carter’s initial assessment, again when he decided to radio for Life Flight after 

learning the rock landed on Rickard, and yet again when Gary Thweatt discovered that Rickard 

would need additional surgeries. Id. at 13. Finally, the Secretary asserts that the violation 

warrants a special assessment due to WCC’s admitted history of underreporting accidents at the 

Dotiki Mine. Id. at 14. 

 The Respondent argues that the citation should be vacated because Rickard’s injury did 

not have the reasonable potential to be fatal. Respondent’s Post-Hearing Brief (Resp. Br.) at 9.

While WCC concedes that it did not notify MSHA within 15 minutes after assessing the injury, it 

contends that Rickard’s injuries did not constitute an “accident” as defined by the Act because 

the injury did not have the reasonable potential to cause death. Id. at 10. Specifically, WCC 

contends that its miners were certified EMTs that properly evaluated Rickard and reasonably 

determined him to be stable given the facts readily available at the time of the injury. Id. at 13-

16. WCC asserts that the fact that Rickard was transported via air and was hospitalized do not 

automatically trigger the reporting standard, and that the mechanism of injury and Rickard’s 

actual condition did not carry a reasonable potential to cause death. Id. at 19. 

 Even if WCC is found to have violated section 50.10(b), WCC argues that the injury was 

neither S&S nor the result of high negligence. Resp. Br. at 9. WCC contests the gravity of the 

violation because the failure to immediately report the injury did not contribute to the existence 

of the hazard of the falling rock that caused the injury at issue. Id. at 24. Furthermore, WCC 

claims that preservation of the accident scene provided little value in preventing similar injuries 

because the rock fell in an area with an unsupported top inby the t-bar, and only struck Rickard 

because he was replacing suction hoses on the side of the roof bolter. Id. WCC argues that its 

negligence should be modified to low because Carter and Scott made a reasonable and thoughtful 

decision regarding the reporting requirement and provided exemplary medical care to Rickard 

39 FMSHRC Page 1135
while he remained underground. Id. at 25. Finally, WCC argues that the Secretary failed to 

provide adequate support for a special assessment because Inspector Walker did not consider the 

results of the Part 50 Audit in recommending the special assessment, and because the Part 50 

Audit revealed a history of underreporting occupational injuries under § 50.20, and thus was not 

considered in or relevant to the assessment process. Id. at 28-29. 

III. ANALYSIS

A. The Violation 

The cited standard provides: 

The operator shall immediately contact MSHA at once without delay and 

within 15 minutes, at the toll free number, 1-800-746-1553, once the 

operator knows or should know that an accident has occurred involving: 

(b) An injury of an individual at the mine which has a reasonable 

potential to cause death. 

30 CFR § 50.10(b) (emphasis added). 

Section 50.10(b) requires operators to make a prompt determination of whether an 

accident has occurred. Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989). The 

provision allows the operator a reasonable opportunity to investigate the accident before the 15-

minute clock begins to run, but the opportunity must be exercised in good faith and tempered 

with the need to immediately notify MSHA once it is clear that a reportable accident has 

occurred. Wolf Run Mining Co., 35 FMSHRC 3512, 3517 (Dec. 2013). The Commission has 

held that “the decision to call MSHA cannot be made upon the basis of clinical or hypertechnical 

opinions as to a miner’s chance of survival. The decision to call MSHA must be made in a matter 

of minutes...” Cougar Coal Co., 25 FMSHRC 513, 632 (Sept. 2003). Thus, readily available 

information such as the nature of the accident, which entails the hazard itself and observable 

indicators of injury or trauma, is highly relevant in determining whether an injury is reportable. 

Signal Peak Energy, LLC, 37 FMSHRC 470, 476 (Mar. 2015). The operator, in making the 

determination whether to notify MSHA under 30 C.F.R. § 50.10, must resolve any reasonable 

doubt in favor of notification. Id. at 477. 

WCC’s decision not to notify MSHA of the accident was unreasonable given the readily 

available information concerning the cause and observable indicators of Rickard’s injuries. A 

reasonable miner would have recognized that the accident had the reasonable potential to cause 

death and immediately reported it to MSHA within the requisite 15 minutes. 

The nature of Rickard’s accident was a crushing-type injury to the pelvic area caused by 

a large rock that fell from the roof of the mine. By all accounts, the rock that struck Rickard was 

approximately twelve inches thick and large enough to cause serious injury or death. Tr. 158, 

221, 234. The rock fell from between eight and ten feet, the standard height of the roofs 

throughout the Dotiki Mine. Tr. 86. Armstrong testified that the rock landed and came to rest on 

39 FMSHRC Page 1136
Rickard. Tr. 159. He was unable to lift the rock on his own. Tr. 172. He had to use a five-foot 

pry bar to move the rock sufficiently to allow Rickard to crawl out from under it. Id. The contact 

was so severe that Armstrong believed that Rickard was dead until he saw Rickard move his 

head. Id. at 171. 

It was readily apparent that a crushing-type injury may have occurred. Even those WCC 

miners with no medical experience immediately noticed that Rickard’s hip was damaged. Carter 

and Scott, both certified EMTs, testified that they were unable to identify the exact type of hip 

injury, raising doubts about the possibility of severe internal injuries.8

 Tr. 222-23. The cause and 

extent of the injury was readily apparent, and Carter and Scott acknowledged that a hip injury 

was potentially life-threatening. Tr. 193-94, 234. Carter testified that the size of the rock posed a 

risk of a serious crushing injury if it came to rest on Rickard. Tr. 234. Rickard was complaining 

of back and stomach pains, indicating that the damage extended beyond his visible hip injury. Tr. 

224. Upon learning this information, a reasonable miner would have realized that the accident 

had the reasonable potential to cause death and thus known to notify MSHA as required under § 

50.10(b). 

I find that WCC violated section 50.10(b) when Carter opted not to notify MSHA within 

15 minutes after his initial assessment of Rickard’s injuries. Carter was Rotating Foreman, and 

therefore responsible for the entire mine at the time of the accident, and possessed the authority 

to notify MSHA of the accident. Tr. 228-29. He was aware of the Part 50 reporting requirements 

and had notified MSHA under the standard in the past. Tr. 232-33, 237-38. He was the first 

member of management to arrive at the scene and the first certified EMT to examine Rickard. 

The scene was undisturbed, and both Rickard and Armstrong were available to answer any 

questions regarding the cause or details of the accident. Given Carter’s authority and experience 

and the nature of the accident, I find that a similarly situated reasonable miner would have 

assessed Rickard’s injuries and the scene of the accident and determined that Rickard had likely 

sustained serious and reportable internal injuries. 

WCC asserts that Carter’s preliminary assessment of Rickard indicated that he was stable 

and that its decision not to notify MSHA was therefore reasonable. I disagree. Section 50.10(b) 

requires merely that the injury has the reasonable potential to cause death, not that the injury is 

actually life-threatening. See Red River Coal Co., 39 FMSHRC 368, 393 (interpreting the 

Commission’s decision in Signal Peak, 37 FMSHRC 470, 474 (Mar. 2015) to apply a common 

sense approach to what constitutes a “reasonable potential to cause death.”). The provision 

therefore requires a reasonable possibility that an injury may be fatal to trigger the requirement. 

With this in mind, I find that the fact that Rickard was conscious, alert, and that his initial vitals 

were stable do not overcome two important factors that should have prompted the Respondent to 

report the accident. 

 8

 Section 50.10(b) does not require operators to wait to determine the exact injury that 

occurs after an accident. See Cougar Coal Co., 25 FMSHRC at 632. However, the fact that 

Carter and Scott noted an obvious hip injury but could not determine whether the injury was a 

swelling, deformity, or a displacement or the like indicated a reasonable doubt regarding the 

severity and implications of the injury. 

39 FMSHRC Page 1137
First, the readily observable nature of Rickard’s injuries and his own comments indicated 

the potential existence of serious internal injuries. Carter observed the size of the rock and 

immediately noted damage to Rickard’s hip and pelvic area, in close proximity to vital organs. 

Although Rickard remained conscious and responsive, he complained about back and stomach 

pains, neither directly related to his hip. Tr. 222-24. These comments should have indicated the 

reasonable likelihood of undetectable internal injuries, and indeed, Rickard sustained severe 

internal injuries that went undetected until he arrived at the hospital. At the very least, the readily 

apparent information at the accident scene should have prompted WCC to resolve its doubts in 

favor of notification. See Signal Peak Energy, LLC, 37 FMSHRC at 477. 

Second, the discrepancy over whether or not Carter was aware that the rock fell on top of 

Rickard indicates that his assessment of the nature of the injury was incomplete and therefore 

unreasonable. When Carter arrived at the scene, the rock was no longer on top of Rickard, and 

Carter apparently assumed that the rock merely struck him and did not land on him. Tr. 234-35. 

He did not recall asking Armstrong how the rock struck Rickard. Tr. 235. Armstrong however, 

credibly testified that Carter asked him if he moved the rock off of Rickard when he arrived at 

the scene. Tr. 161. Carter stated that had he known that the rock fell on Rickard, he would have 

reported the injury to MSHA for fear of a life-threatening crushing injury. Tr. 234. 

It is undisputed that the rock landed on top of Rickard and had to be pried off of him. 

Regardless of whether Carter knew that the rock rested on Rickard or simply failed to ascertain 

that fact, it is clear that the information was readily available and would have impacted his 

decision to call MSHA. At the very least, Carter should have assumed that a crushing-type injury 

was a distinct possibility, and asked either Rickard or Armstrong to specify precisely what 

happened or assumed that a crushing type injury occurred. To fail to determine the available 

details of the accident while performing a medical examination is inherently unreasonable. 

Inspector Walker testified that Carter also should have notified MSHA after his decision 

to radio for Life Flight. Tr. 397-98. He believed that Carter’s decision to call for air evacuation 

indicated that his assessment of the accident had increased from stable to critical. Tr. 398. While 

I find Inspector Walker’s testimony to be credible on the whole, I do not credit this assumption. 

Walker admitted that Carter never explicitly told him that he made the call to Life Flight because 

his assessment of the accident had changed. Tr. 411. Walker testified that this was merely an 

assumption based on Carter’s actions. Id. I credit Carter’s testimony that he radioed for Life 

Flight to ensure that Rickard reached the hospital as quickly and comfortably as possible, not 

because he believed the accident was life-threatening. Tr. 223. 

Additionally, I do not find that the use of Life Flight automatically triggers the reporting 

requirement. Life Flight is intended for serious injuries, but it is also the best way to ensure rapid 

and comfortable transportation for injured miners, regardless of whether their life is at stake. 

Section 50.10(b) does not specify the conditions required for an injury to carry the “reasonable 

potential to cause death,” and to read use of Life Flight into that definition may deter operators 

from employing what is a safe and effective method of emergency transportation. 

Next, Inspector Walker alleged that WCC should have notified MSHA once Patrick Scott 

began treating Rickard for potential shock. Tr. 100. Walker testified that an EMT would not 

39 FMSHRC Page 1138
normally treat a patient for shock unless the patient exhibited signs of shock. Tr. 136. I decline to 

find that the decision to treat an injured miner for potential shock automatically triggers the 

reporting standard in § 50.10(b). Although the onset of shock has a reasonable potential to cause 

death, merely treating for the possibility of shock does not elevate the severity of the injury in 

itself. Scott testified that Rickard did not exhibit symptoms of shock during his examination, but 

he administered treatment for potential shock, such as providing a blanket and oxygen, to ensure 

Rickard’s comfort, and would do the same for any injury for which shock remained a distinct 

possibility. Tr. 192. He noted Rickard’s injury could have been life-threatening and that while he 

checked Rickard for symptoms of internal bleeding he could not definitively rule out the 

possibility. Tr. 193. I credit Scott’s testimony that Rickard did not exhibit any outward signs of 

shock and that his decision to treat for potential shock was to err on the side of caution and also 

to keep Rickard as comfortable as possible during his evacuation to the mine surface. Tr. 211. 

Though WCC should have already notified MSHA after Carter’s assessment, Scott’s decision to 

treat for shock does not in itself suggest that WCC knew Rickard’s injury had the potential to 

cause death.

Even assuming that WCC’s initial assessment of Rickard’s injury was reasonable, I find 

that WCC knew or should have known that Rickard’s condition merited contacting MSHA when 

Gary Thweatt learned of Rickard’s need for surgery and internal injuries the night of and the day 

after the accident.9

 Tr. 259-61. On the night of the accident, Dotiki contacted Thweatt and told 

him that Rickard sustained a hip injury, that his vital signs were stable, and that Rickard was 

being flown to the nearest trauma center in Evansville. Tr. 272. Thweatt traveled to Deaconess 

Hospital and introduced himself to Rickard’s family, but testified that they had no additional 

information regarding his condition at that time. Tr. 275. Thweatt overheard the doctor inform 

the family that Rickard would need additional surgery and was stable, but did not learn any 

specific details at that time. Tr. 279. 

Thweatt testified that he learned more about the details of Rickard’s accident and injuries 

the following day. He knew that the rock was large enough to kill or seriously injure a miner, and 

learned that the rock fell and pinned Rickard against the ATRS. Tr. 301. He also learned of 

Rickard’s lacerated urethra and that Rickard needed multiple surgeries. Tr. 298-300. I find 

Thweatt’s testimony on these points to be inconsistent. Thweatt testified that he knew of the 

lacerated urethra the day after the accident, but walked back that testimony to state that he was 

unsure that he ever got all of the details concerning Rickard’s condition. Tr. 298-300. It is 

unlikely that Thweatt, the General Manager of Dotiki Mine, was only informed of some of 

Rickard’s serious injuries but remained in the dark about others. I find it probable that if Thweatt 

knew about the lacerated urethra, he likely knew or should have known of Rickard’s other 

serious internal injuries and made the decision to notify MSHA. 

 9

 I wish to emphasize that I do not find WCC or Mr. Thweatt’s decision to travel to a 

hospital in support of an injured miner as evidence of knowledge that an injury has the potential 

to cause death. I commend and encourage providing miners and their families support during 

difficult times. However, information learned in this context can and should inform an operator’s 

decision to notify MSHA if it leads mine management to believe that an injury has the 

reasonable likelihood to be fatal. 

39 FMSHRC Page 1139
Nevertheless, Thweatt did not notify MSHA after learning this additional information 

because Rickard was already in the hospital having surgery. Tr. 298. In fact, WCC did not notify 

MSHA as required under the standard until after Inspector Walker issued the citation on October 

1, three days after Rickard’s accident. Tr. 303. I find it unlikely and unreasonable that, after 

commencing an investigation and learning more about Rickard’s injuries, Thweatt was not aware 

that his condition merited notifying MSHA. Thweatt clearly explained his understanding of the 

accident, what he remembered of the details of Rickard’s injuries, and his knowledge that 

Rickard was airlifted to Nashville for multiple surgeries. Tr. 319. 

WCC argues that Thweatt did not learn of the severity of Rickard’s injuries until after he 

had undergone surgery, and thus the injuries were repaired and no longer posed a reasonable 

potential for death. Resp. Br. at 21. While this may be true, the fact remains that WCC did not 

call MSHA until well after the disputed citation was issued. Thweatt learned of the extent and 

specifics of the accident by September 30 and still did not report the accident to MSHA as 

required by the standard. I find it unreasonable that neither Carter nor Thweatt, in their capacities 

as EMTs and authority figures at the mine, took it upon themselves to fully understand the 

accident or to err on the side of caution and notify MSHA of the accident based on what they 

understood about Rickard’s condition. Even after receiving significant detail regarding the 

incident and talking with MSHA the following day, WCC still failed to fulfill their obligation 

under § 50.10(b) until October 5, well after the citation was issued on October 1. Tr. 305-06; Ex. 

7. 

WCC cites ALJ Manning’s decision in Newmont USA Limited, 32 FMSHRC 391 (Apr. 

2010) (ALJ) to argue that the citation should be vacated. In Newmont USA Limited, MSHA 

alleged a violation of section 50.10(b) when an employee sustained a fractured leg from being 

run over by a haul truck. Id. at 934. The Secretary alleged that the fractured femur had a 

reasonable potential to cause death because of risks inherent with hospitalizations and 

complications in surgery. Id. ALJ Manning found that Newmont was entitled to summary 

decision and vacated the citation because the risk of death from surgery or hospitalization was 

too remote from the leg injury itself and that the regulation did not require mine operators to 

report every injury that required off-site emergency care. Id. at 396. 

I find the present facts distinguishable from those in Newmont. The nature of Rickard’s 

injury was significantly more serious than the miner’s broken leg in Newmont. A crushing injury 

to the pelvic area carries a high risk of internal injury and damage to vital organs. This risk is 

inherently more likely to cause death than a broken leg. Furthermore, in Newmont, at no time did 

the EMT believe that the miner suffered an injury with the reasonable potential to cause death. 

Id. at 396. Here, both Carter and Scott admitted that injuries on or near the pelvic area could 

result in such injuries, and only changed their minds after checking Rickard’s vital signs and 

without considering the possibility that a crushing injury had occurred. Tr. 194, 234. As noted by 

the Respondent, their decision not to notify MSHA was carefully and cautiously considered, thus 

indicating some uncertainty to whether Rickard’s injury had the potential to be fatal. Resp. Br. at 

25. Carter and Scott’s examinations, while instructive, did not alleviate doubt that Rickard was 

bleeding internally or had severe internal injuries. Rickard’s hip injury was immediately 

noticeable, and the size of the rock, the height from which it fell, and the fact that it had to be 

pried off of Rickard all indicate an injury with the potential to cause death. 

39 FMSHRC Page 1140
For the reasons discussed above, I find that WCC violated § 50.10(b) when Carter opted 

not to call MSHA within 15 minutes of examining the scene of the accident and Rickard’s 

sustained injuries and when Thweatt learned of Rickard’s specific injuries the day after the 

accident. 

B. Significant and Substantial (S&S) 

A violation is significant and substantial (S&S), “if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3-4 (Jan. 1984). 

The Commission has held that the second element of the Mathies test addresses the extent 

to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC 

2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of 

the hazard created by the violation and a determination of the likelihood of the occurrence of the 

hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary 

must prove there was a reasonable likelihood that the hazard contributed to by the violation will 

cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West 

Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32 

FMSHRC 1257, 1280-81 (Oct. 2010). Evaluation of the four factors is made assuming continued 

normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 

As an initial matter, the Commission has held that violations of section 50.10 are 

mandatory standards to which S&S designations are applicable. See Red River Coal Co., Inc., 39 

FMSHRC 368, 392 (Feb. 2017) (ALJ) (citing Signal Peak Energy, LLC, 37 FMSHRC 470, 479 

(Mar. 2015). Thus, the first prong of the Mathies test is satisfied. 

The specific hazard posed by section 50.10(b) is the preclusion of MSHA’s ability to 

investigate the cause of Rickard’s accident. The Commission has held that in cases where rescue 

efforts are not concerned, Section 50.10 is intended to facilitate MSHA’s ability to investigate 

and remedy the cause of an accident. See Signal Peak, 37 FMSHRC at 480. Thus, failure to 

report a potentially fatal accident creates a discrete safety hazard because it precludes MSHA’s 

investigatory role in determining and remedying the cause of the accident. Id. Here, Rickard’s 

injury posed two concerns: the stability of the roof of the Dotiki Mine and whether Rickard’s 

decision to repair the suction hose prior to backing up the roof bolter was an isolated occurrence. 

WCC failed to notify MSHA of the accident, removed the rock that injured Rickard, and 

continued to mine in the accident area shortly thereafter. Tr. 122. WCC thus prevented MSHA 

from investigating Dotiki’s roof conditions and roof bolting procedures and determining whether 

39 FMSHRC Page 1141
Rickard’s accident was an isolated occurrence or part of a widespread problem that put miners at 

risk and merited additional remedy. 

The preclusion of MSHA’s investigatory role is reasonably likely to expose miners to 

uncorrected hazardous conditions or behaviors. The failure to report the injury prevented MSHA 

from investigating and remedying potentially adverse roof conditions in the mine and ensuring 

that Dotiki’s miners were following proper safety procedures while operating machinery. WCC 

contends that the hazard was unlikely to result in an injury because the rock fell from an area of 

unsupported top, and only struck Rickard because he was repairing suction hoses by the roof 

bolter’s t-bar. Resp. Br. at 24. The record indicates, however, that miners were already taking 

shorter cuts due to adverse roof conditions in Dotiki, and that WCC continued to mine in the 

same area shortly after Rickard was evacuated from the mine. Tr. 83-84, 122. Furthermore, 

Thweatt testified that Rickard’s decision to try to repair the suction on the roof bolter without 

backing up was not typical, suggesting that proper safety procedures may not have been 

followed. See Tr. 301-02. Thus, the hazard of precluding MSHA’s investigatory ability was 

reasonably likely to result in an injury in the context of continuous mining operations because it 

prevented implementation of additional safety measures and exposed miners to uncorrected 

hazards. 

Finally, exposure to dangerous roof conditions is reasonably likely to result in a serious 

injury similar to Rickard’s. Rock falls of roughly the same size and from the same height as the 

one that impacted Rickard are likely to result in serious crushing injuries. Accordingly, I affirm 

the Secretary’s S&S designation. 

C. Negligence 

Inspector Walker initially designated the violation as the result of WCC’s moderate 

negligence, but moved to modify the citation to high negligence at hearing. Sec’y Br. at 10; Tr. 

104-05. The Secretary argues that the violation was the result of WCC’s high negligence because 

it failed to report the accident to MSHA on multiple occasions, namely after Carter’s decision 

not to contact MSHA following his initial assessment and decision to radio for Life Flight, after 

Carter learned that the rock fell on to Rickard and posed a potential crushing injury, and after 

Thweatt visited the hospital and learned that Rickard’s injuries required surgery. Sec’y Br. at 12-

13; Tr. 403-04, 411-12, 420-22. 

WCC argues that it exhibited low negligence because it provided exemplary medical care 

to Rickard and its decision not to immediately report the injury was a conscious and reasonable 

one made with thoughtful consideration. Resp. Br. at 25. 

I find that WCC was highly negligent in its repeated failure to notify MSHA of the 

accident. Under the Mine Act, operators are held to a high standard of care, and “must be on the 

alert for conditions and practices in the mine that affect the safety or health of miners and to take 

steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d). 

High negligence occurs when the operator “knew or should have known of the violative 

condition and there are no mitigating circumstances.” 30 CFR § 100.3: Table X. Moderate 

39 FMSHRC Page 1142
negligence occurs when the operator “knew or should have known of a violative condition or 

practice, but there are mitigating circumstances.” Id. 

The Commission has held that the operator, in making the determination whether to 

notify MSHA under 30 C.F.R. § 50.10, must err on the side of caution and resolve any 

reasonable doubt in favor of notification. Signal Peak Energy, LLC, 37 FMSHRC 470, 477 (Mar. 

2015). Carter and Scott testified that injuries to the hip area could be potentially fatal and that 

while Rickard’s vital signs were stable, they could not precisely identify the injury to his hip or 

foreclose on the possibility of serious internal injuries. Tr. 194, 235. Yet inexplicably, WCC 

opted not to notify MSHA in spite of these doubts. As discussed in detail above, Carter was 

clearly aware of the reporting requirement and should have known, given the readily available 

evidence, that Rickard’s injury had the potential to cause death. Carter did not properly assess 

the scene of the accident and the mechanism of the injury, which in combination indicated that 

Rickard sustained a potential crushing injury to his pelvic region. Carter should have known that 

Rickard was pinned under the rock, and should have notified MSHA immediately once he 

learned that the rock landed on Rickard and pinned him to the ATRS. Carter testified that such 

knowledge would have led him to contact MSHA for fear of a serious crushing injury, and yet 

upon learning that information, he still did not contact MSHA. Tr. 235. 

Furthermore, Thweatt’s decision not to contact MSHA after being notified that Rickard 

had to undergo additional surgeries and was eventually air lifted to Nashville exacerbates WCC’s 

negligence. It is at this point that WCC certainly learned of Rickard’s serious internal injuries. 

The details of Rickard’s serious injuries conflicted with WCC’s initial assessment of Rickard and 

should have prompted an immediate call to MSHA. However, WCC again failed to report the 

accident for a number of days and until Inspector Walker issued his citation on October 1, at 

which point MSHA was unable to conduct any investigation of the accident scene. 

I acknowledge that WCC’s rapid and thorough response to Rickard’s injury was 

commendable but its efforts in this regard do not mitigate its negligence. Throughout the 

treatment of Rickard there remained a reasonable doubt as to the severity of Rickard’s injuries 

and there is no dispute that mine management was aware of the reporting requirement. Mine 

management continued to assume that Rickard’s stable vitals foreclosed the need for notification 

despite learning additional details regarding his injuries. I thus find that WCC was highly 

negligent in its repeated failure to contact MSHA under section 50.10(b), even after learning that 

Rickard had severe internal injuries and required extensive surgery. 

D. Penalty 

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

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

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

the Commission ALJ shall consider the six statutory penalty criteria: 

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

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

39 FMSHRC Page 1143
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). 

These criteria are generally incorporated by the Secretary within a standardized penalty 

calculation that results in a pre-determined penalty amount based on assigned penalty points. 30 

CFR 100.3: Table 1- Table XIV. If the conditions of the violation so warrant, the Secretary may 

waive the regular assessment under § 100.3(a) and specially assess a penalty. 30 C.F.R. § 

100.5(a). The special assessment must also be based upon the six criteria outlined above, and all 

findings must be in narrative form. 30 C.F.R. § 100.5(b). 

I find that the Secretary failed to establish that the violation merited the proposed special 

assessment. The Secretary primarily argues that WCC demonstrated a “pattern of conduct” in 

failing to report or underreporting violations that would only be deterred by upholding the 

specially assessed penalty. See Sec’y Br. at 14-15. The Secretary offered a Part 50 Audit 

conducted after an unrelated fatality occurred at the Dotiki Mine in early 2016. Tr. 17-18; Ex. 10. 

For the following reasons, I find the audit to be of minimal evidentiary value and do not believe 

that it justifies the proposed special assessment. 

First, the audit alleges numerous § 50.20 violations for failing to report occupational 

injuries or illnesses but does not allege any § 50.10 violations. See Ex. 10. Section 50.10 is 

triggered under vastly different circumstances and permits the operator much less time to comply 

with the requirement. See 30 C.F.R. § 50.10 (requiring the operator to call MSHA’s hotline 

within 15 minutes); § 50.20(a) (requiring the operator to mail the completed injury forms within 

10 working days). Evidence of WCC’s failures to report occupational illnesses or injuries does 

not prove or support the assertion that WCC likewise consistently failed to report injuries with 

the reasonable potential to cause death. 

Additionally, neither MSHA nor Inspector Walker considered the Part 50 Audit when 

recommending and proposing the special assessment. Tr. 426-28. MSHA initiated the Part 50 

Audit well after the issuance of the instant citation, and the Secretary had already issued the 

proposed special assessment when the audit was completed. Tr. 17-18, 26-27. Inspector Walker 

testified that he based his recommendation for special assessment on the facts of the citation and 

that the Part 50 Audit offered played no part in his decision. Tr. 425-26. In fact, he was not 

involved in the audit procedure at all. Id. Yet the Secretary submitted the Part 50 Audit as 

evidence for the special assessment without addressing why either its post hoc citations or 

Inspector Walker’s findings merited a special assessment in this case. See Sec’y Br. at 14-15. I 

therefore do not find the Part 50 Audit to support the proposed special assessment and assign 

WCC’s violation history minimal weight. 

 Inspector Walker testified that he recommended the special assessment in light of the 

mechanism of Rickard’s injury and because Carter, as an EMT and Rotating Foreman, should 

have known that the situation required immediate notification to MSHA after radioing Life 

Flight. Tr. 430-31; 439. As discussed above, WCC violated the standard after Carter’s initial 

39 FMSHRC Page 1144
assessment, but that his decision to radio Life Flight should not factor into the violation. I agree 

that Life Flight is intended for critical situations, but I credit Carter’s testimony that his decision 

to do so was to provide Rickard with the quickest and most comfortable access to the nearest 

hospital. I decline to penalize WCC for using Life Flight and do not wish to deter the practice 

when operators determine that it is warranted. 

 I also decline to find that Carter and Thweatt’s EMT certification justifies the special 

assessment. See Tr. 430. EMT certification is undoubtedly useful in assessing injuries and 

administering treatment in mine accidents. However, it does not raise the standard of care under 

section 50.10(b). The Commission has held that clinical or hypertechnical opinions are not 

required to merit notifying MSHA under the standard. See Cougar Coal Co., 25 FMSHRC 513, 

521 (Sept. 2003). While EMTs may be able to provide a more specific injury diagnosis than the 

average miner, their responsibility under section 50.10 remains the same; they must quickly 

assess whether the injury is severe enough to reasonably conclude there is a potential for the 

injured miner to die and notify MSHA if that is the case. Holding EMTs to a higher standard 

would frustrate the immediate notification requirement by encouraging more time-consuming 

technical examinations of injured miners before making the decision to notify MSHA. See

generally 25 FMSHRC at 521. While Carter and Thweatt should have been able to determine 

that Rickard’s injuries had a reasonable potential to cause death, their EMT certification is not an 

aggravating factor that justifies the special assessment. In light of these findings, I vacate the 

Secretary’s proposed special assessment. 

 Turning now to my independent assessment, I nonetheless hold that the violation is 

serious and deserves a significant penalty. Based on the following review of the statutory penalty 

criteria, I assess a penalty of $20,000. 

I have already noted that WCC does not have an extensive violation history of § 50.10. 

Ex. 10. WCC is a large operator and there is no indication that the penalty will have an impact on 

its ability to continue in business. Neither party raised WCC’s size or ability to pay as an issue 

during the hearing or in post-hearing briefs. 

I have discussed my findings regarding gravity in the preceding sections. WCC’s failure 

to notify MSHA of Rickard’s injury was S&S and reasonably likely to result in a fatal accident. A 

violation of § 50.10 precludes MSHA’s investigatory abilities and forecloses the possible 

discovery and remedy of widespread issues in the mine. Signal Peak Energy, 37 FMSHRC 470, 

480 (Mar. 2015). Here, MSHA was precluded from investigating the existence of unstable or 

adverse roof conditions in Dotiki Mine and whether proper safety procedures were followed 

when making equipment repairs or adjustments. Both of these potential issues pose serious 

threats to miners’ safety. Given the severity of Rickard’s injuries, any additional injuries caused 

by WCC’s violation of section 50.10 were likely to be serious if not fatal. 

WCC’s violation was the result of high negligence with no mitigating factors. Carter and 

Thweatt, both high-ranking members of Dotiki’s management, independently failed to notify 

MSHA of Rickard’s accident on multiple occasions. Carter should have notified MSHA after his 

initial assessment of Rickard which revealed that he may have sustained a crushing injury and 

certainly when he discovered that the rock fell on to Rickard and had to be pried off of him. See

39 FMSHRC Page 1145
Tr. 161, 234-35. Thweatt should have notified MSHA when he learned that Rickard needed 

surgery on the night he visited his family at the hospital and again when he subsequently learned 

of Rickard’s internal injuries and of his transfer to Nashville for additional surgeries. See Tr. 298-

300, 319. Upon learning this information, WCC did not notify MSHA even days after the 

accident. Tr. 298, 305-06. The failure of one member of Dotiki’s mine management, let alone 

two, to notify MSHA in light of the information progressively gathered during and subsequent to 

the accident, is inexplicable. Thweatt and Carter’s continual failure to notify MSHA demonstrate 

high negligence and a disregard for the importance and purpose of section 50.10(b). 

I do not find that WCC demonstrated good faith in abating the citation. Inspector Walker 

issued the citation on October 1, 2015, over three days after the accident. Ex. 7. WCC had not 

called to notify MSHA at that time, and WCC did not terminate the citation until October 5, four 

days after MSHA issued the citation. See Ex. 7; Tr. 305-06. WCC offered no justification or 

explanation for waiting so long to terminate the citation. I do not consider a four day delay in 

abatement to be a good faith effort when all that was necessary to abate the citation was to place 

a brief phone call to MSHA. 

The notification requirement of section 50.10 is an important standard that promotes 

MSHA’s role in investigating and remedying the causes of serious accidents. See Signal Peak 

Energy, 37 FMSHRC 470, 480 (Mar. 2015). Any injury that creates a reasonable doubt as to 

whether it has potential to cause death should trigger the operator’s decision to notify MSHA, as 

compliance with the standard is neither difficult nor time consuming. Given the gravity and 

negligence of this particular accident and WCC’s failure to quickly terminate the citation, I find 

the Congressionally-prescribed minimum penalty to be an insufficient deterrent for this violation. 

Considering the above mentioned criteria, I assess a penalty of $20,000. 

IV. ORDER 

The Respondent, Webster County Coal, LLC, is ORDERED to pay the Secretary of 

Labor the sum of $20,000.00 within 30 days of this order.10

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

 10 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 

39 FMSHRC Page 1146
Distribution: (U.S. First Class Mail) 

Schean G. Belton, Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219 

Tyler H. Fields, Webster County Coal, LLC, 1146 Monarch Street, Lexington, KY 40513 

39 FMSHRC Page 1147
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE 443

DENVER, CO 80202-2536

303-844-3577 FAX 303-844-5268

May 23, 2017 

DECISION

Appearances: Rose Darling, Esq. and Mark A. Pilotin, Esq., Office of the Solicitor, U.S. 

Department of Labor, San Francisco, California, for the Secretary; 

Robert D. Peterson, Esq., Robert D. Peterson Law Corporation, Rocklin, 

California, for Magorian Mine Services. 

Before: Judge Manning 

These cases are before me upon two petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Magorian Mine Services (“MMS”) pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties 

presented testimony and documentary evidence at a hearing held in Sacramento, California, and 

filed post-hearing briefs. One section 104(d)(1) citation, one section 104(d)(1) order, and two 

section 104(d)(2) orders were adjudicated at the hearing. MMS was an independent contractor 

performing development work at the Pinson Mine, an underground gold mine in Humboldt 

County, Nevada. At all pertinent times, the mine’s operator was Atna Resources, Inc. For reasons 

set forth below, I AFFIRM Citation No. 8876362 and Order No. 8876391, VACATE Order No. 

8876363, and MODIFY Order No. 8876392. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

Citation No. 8876362, WEST 2016-270-M; and Order No. 8876363, WEST 2016-445-M. 

 Citation No. 8876362, issued under section 104(d)(1) of the Mine Act on November 2, 

2015, alleges a violation of section 57.3360 of the Secretary’s safety standards and asserts that 

there was insufficient ground support in the 4644 intersection. GX-1. In relevant part, the safety 

standard provides that ground support “shall be used where ground conditions, or mining 

experience in similar ground conditions in the mine, indicate that it is necessary.” 30 C.F.R. § 

57.3360. The standard further provides that “[w]hen ground support is necessary, the support 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 

 v. 

MAGORIAN MINE SERVICES, 

 Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2016-270-M 

A.C. No. 26-01597-401772 1ZZ 

Docket No. WEST 2016-445-M 

A.C. No. 26-01597-406304 1ZZ 

Pinson Mine 

39 FMSHRC Page 1148
system, shall be designed, installed, and maintained to control the ground in places where 

persons work or travel in performing their assigned tasks.” Id. The citation alleges that ground 

support had not been installed and “the drift was accessed constantly by foot and open cab 

equipment.” 

Order No. 8876363, issued under section 104(d)(1) of the Mine Act on November 2, 

2015, alleges a violation of section 57.3200 of the Secretary’s safety standards and asserts that 

loose ground was found in the 4644 intersection. GX-4. The citation states that loose ground was 

“located in the back and was scaled down and measured 2 feet by 2 feet by 2 inches . . . and fell 

directly into the travelway[.]1” The “condition was a direct result of not installing ground 

support.” In relevant part, the safety standard provides that “[g]round conditions that create a 

hazard to persons shall be taken down or supported before other work or travel is permitted in 

the affected area.” 30 C.F.R. § 57.3200. 

Inspector Patrick L. Barney2 issued the citation and order. He determined that, in both the 

citation and order, an injury was highly likely to be sustained and, if an injury occurred, it could 

reasonably be expected to be fatal. Moreover, he concluded that the conditions were significant 

and substantial (“S&S”), and that ten people were affected by the conditions set forth in the 

citation and one person was affected by the conditions set forth in the order. The inspector 

determined that MMS’s negligence was high in both the citation and order. In the body of the 

citation and the order, the inspector stated that MMS’s owner engaged in aggravated conduct 

because “he knew of the condition and allowed miners to work and travel in the area.” The 

Secretary proposed a penalty of $6,996.00 for the violation alleged in the citation using his 

regular assessment formula, 30 C.F.R. § 100.3, and proposed a penalty of $9,100.00 for the 

violation alleged in the order under his special assessment regulation, 30 C.F.R. § 100.5. 

Summary of the Evidence 

Small Mine Development (“SMD”) operated the Pinson Mine on behalf of Atna 

Resources. Tr. 25. SMD contracted with MMS to perform specified work, including the 

development of tunnels and drifts. 

On or about October 27, 2015 Inspector Barney traveled to the mine after MSHA 

received a hazard complaint concerning ground conditions. Tr. 20. Subsequently, MSHA 

received a second complaint with additional information, which prompted Barney to revisit the 

mine. After meeting with officials from Atna Resources and SMD, Barney started his 

underground inspection. He traveled to the 4644 access and entered the subject T-shaped 

intersection. Tr. 26. In that area, he observed that the ground consisted of “sand, gravel, shale, 

[and] clay[.]” Id. He did not see any rock bolts or other ground support in the intersection. 

 1

 The “loose ground” at issue in these cases all relate to conditions in the roof, often 

referred to as the “back,” of the cited intersection 

2

 Inspector Barney has been an inspector with MSHA since February 2011 and inspected 

many underground gold mines during that time. Tr. 15. He started working as miner in 1988 and 

held many jobs up to and including supervisory positions in underground Nevada gold mines. Tr. 

16. 

39 FMSHRC Page 1149
Barney testified that it was his understanding that MMS constructed the intersection. Tr. 27. The 

inspector was concerned, in part, because there had been a ground fall in mid-October about 100 

or more feet away. Tr. 28. Moreover, “several” ground falls had occurred at the mine during the 

summer of 2015. Tr. 29. He considered the ground at the mine to be “very unstable.” Tr. 28. 

Atna Resources adopted a ground support plan in late October 2015 in response to a fall 

of ground. Tr. 31; GX-2 pp. 3-5. This plan included the mine’s minimum standard for ground 

support and noted that “[p]oor ground conditions require more than the minimum” standards. 

GX-2 p. 3. The plan specifies that rock bolts should be on four or six foot centers depending on 

the circumstances. Tr. 32-33. It also contains requirements for wire mesh-type matting to 

“prevent small rock from falling from the back of the heading” Tr. 33-34; GX-2 pp. 4-5. 

Barney issued Citation No. 8876362 because there was no ground support in the 

intersection. Tr. 35. He could see wire and a two-inch layer of shotcrete. Tr. 35. There were some 

bolts on either side of the intersection along one rib, but not on the other rib and not in the center 

of the intersection. Tr. 36; GX-1 p. 14. The plan discussed above required more roof support than 

was present and additional layers of shotcrete. GX-2 p. 5. Kent Hanson, a superintendent with 

SMD, was able to easily scale down pieces of rock from the back in the intersection. Tr. 38, GX1 pp. 4-5. The inspector testified that Hanson “touched the rock [with a scaling bar] and it came 

down.” Tr. 39. Footprints in the area indicated that people walked through the intersection. Tr. 

40. SMD abated the cited condition by attaching hog wire to the back using rock bolts with 

bearing plates. Tr. 42; GX-1 pp. 11-12. 

Barney testified that, in his opinion, attaching a coat of shotcrete along with some rebar 

was not adequate ground support for the cited area. Tr. 43. He previously worked at other 

underground gold mines within the same area in Nevada and, based on his experience, he has 

observed falls of ground “beyond anchorage” due to the nature of the rock. Id. Ground support in 

the area did not meet the minimum specifications of the mine’s ground support plan. He 

estimated that at least 10 people were exposed to this hazard and that the condition “existed for 

95 days, which was 190 shifts.” Tr. 44. 

Barney designated the violation as S&S because loose rock was easy to bar down, there 

was a lot of foot traffic and open cab traffic in the area, and the condition had existed for over 

190 shifts. Tr. 45. The discrete hazard was an “unplanned fall of ground.” Tr. 46. An injury was 

highly likely because the “drift had been advanced 228 feet beyond that intersection . . . and the 

intersection wasn’t supported.” Tr. 47. The loose ground that Hanson took down was two feet by 

two feet by two inches thick. Rock falling from that height could “easily be fatal.” Id.

Barney determined that the violation was the result of MMS’s high negligence because 

Don Magorian, the owner of MMS, admitted that he knew of the condition. Magorian “knew that 

the intersection was non-supported, that they had mined 228 feet beyond that intersection and 

that he never bothered to tell anybody that it was not supported.” Tr. 48. The inspector stated that 

he recorded Magorian’s statement contemporaneously in his notes. GX-1 p. 19. Barney also 

testified that Magorian went on to say that he did not tell Atna Resources or SMD about the 

condition because the shotcrete, mesh and rebar were better engineered than any bolt. Tr. 49. 

39 FMSHRC Page 1150
Barney further determined that the violation was the result of MMS’s unwarrantable 

failure to comply with the safety standard because management knew that the conditions violated 

that safety standard and people were not kept out of the intersection. Tr. 50. The inspector relied, 

in large part, on Magorian’s statements during the telephone conference when making this 

determination. Id. The inspector testified that Magorian “knew that the intersection was not 

supported and allowed his miners, SMD miners and Atna Resources people to travel beyond that 

intersection while he mined another 228 feet beyond that intersection prior to leaving the mine 

site.” Id. 

Inspector Barney issued Order No. 8876363 one minute after issuing the citation 

discussed above and based it on the presence of loose rock that was present at the time of his 

inspection. He determined that the conditions he observed violated the safety standard because 

the loose ground created a hazard to persons. Tr. 53. Miners walked under the loose ground when 

they mined 228 feet beyond the intersection. Id. 

An injury was highly likely because when the rock was scaled down by Hanson “it 

actually came down at first contact with the scaling bar, didn’t require any prying, and there were 

multiple pieces of loose that fell in by that location[.]” Id. Getting hit by a 50 pound rock could 

result in a fatal injury. The inspector determined that MMS’s negligence was high because of the 

statements made by Magorian, as discussed with respect to Citation No. 8876362 above. Tr. 54-

55. The inspector also determined that the violation was the result of MMS’s unwarrantable 

failure to comply with the safety standard because Magorian knew that the cited conditions had 

existed for a length of time and “he allowed and/or instructed his people to travel underneath that 

area and travel under those conditions.” Tr. 55. 

Barney admitted that Magorian ceased working in this area of the mine on October 2, 

2015 and that the mine’s ground support plan was not adopted until October 19. Tr. 61, 66. He 

also acknowledged that SMD scaled down the back once every shift. Tr. 69. 

The Secretary also called James G. Vadnal as an expert witness with respect to this 

citation and order.3

 He testified that he is familiar with the geology of the mine even though he 

has never visited the mine. Tr. 76, 86. He has investigated the geology of the Leeville and Midas 

Mines, both of which are underground gold mines close to the Pinson Mine. Tr. 74. He also “read 

quite a bit” about the geology of the Pinson Mine. Tr. 76. He said that the rock at the mine is 

composed of gravel, shale, boulders, and sand. Tr. 79. There were faults in the general area. Tr. 

79-80. 

Vadnal testified that the conditions described in Citation No. 8876362 created a violation 

of section 57.3360. Tr. 81. At an intersection, there is a larger area of the back exposed with the 

result that “all intersections need some sort of permanent support.” Id. The intersection in 

 3

 Mr. Vadnal has worked for the roof control division of MSHA’s technical support group 

since January 2007. Tr. 71, GX-7. He has investigated many accidents resulting from falls of 

ground. He was an inspector with MSHA’s metal/non-metal division starting in November 2004. 

Prior to working for MSHA, he worked as a mining engineer in the mining industry. He has a 

Bachelor of Science degree in geology and a Master of Science with an emphasis in mining. Tr. 

73; GX-7. He was accepted as an expert witness at the hearing. Tr. 77. 

39 FMSHRC Page 1151
question should have been supported by roof bolts, shotcrete and welded wire mesh. Id. After 

reviewing the photos taken by Inspector Barney, Vadnal concluded that the ground support 

installed by MMS was “not adequate in that large chunks of loose fell with very little effort.” Tr. 

81-82. The photos show that the roof was loose in several areas. Tr. 83. Although rebar had been 

used to attach mesh to the back, “rebar does not constitute ground control.” Tr. 84. Photos 

introduced into evidence show that someone had scaled down back and installed roof bolts to 

abate the citation. Tr. 85; GX-1 pp. 11-12. Based on his knowledge of the rock structure at the 

Pinson Mine, Vadnal testified the back in the intersection should have been supported as soon as 

it was cut. Tr. 85-86. Vadnal believes that it is unlikely that the ground conditions in the 

intersection changed between early October 2015 and November 2, 2015. Tr. 87-88. 

Don Magorian4 testified that he is the owner of MMS. Tr. 89. MMS had an agreement 

with SMD “to come in and cut and support ground that had been difficult to – or had proved 

difficult to impossible to do with normal mining methods.” Tr. 90. MMS believed that MSHA 

approved the use of its alternative mining method. Tr. 91. MMS was asked to drive “some 

tunnels around” cave-ins that had occurred in the area. Tr. 92. The idea was to use shotcrete and 

wire support after “cutting the ground and maintaining a nearly perfect shape so that we could 

keep the shotcrete in compression and provide an extremely strong liner.” Id. He stated that 

concrete has “ten times the strength under compression than it does under tension.” Tr. 93. 

Shotcrete in compression is structural and contains poly fibers. He testified that his employees 

are very experienced in doing this type of work and that MMS has been doing it for 18 years in 

other tunneling construction. 

Magorian testified that MMS and SMD worked “hand-in-hand” and it was SMD’s 

responsibility to install roof bolts where needed. Tr. 95, 97. MMS’s responsibility was to “cut the 

tunnel, spray shotcrete and put wire in[.]” Tr. 95. MMS was unable to cut the tunnel in the 

intersection at issue because there was a block of solid limestone that MMS could not remove 

with its cutters. Tr. 94. As a result, SMD blasted the area and then MMS trimmed it to shape. Tr. 

97, 109-111. Prior to MMS cutting the 4644 intersection, SMD bolted the ground up to the 

intersection. After trimming the intersection, MMS applied shotcrete that adhered to the ribs and 

back. Magorian did not observe any cracks in the shotcrete in that area. Tr. 109. Eventually 

MMS left the area to work in another area of the mine more suitable to its methods. Tr. 98. 

MMS was told that its work at the mine was over after SMD drilled into water at the face 

of the tunnel at the “4644 Range Front Drive.” Tr. 100. The nearby fault had not yet been 

reached but on or about September 28, 2015 all operations in that area were stopped. The area 

where SMD hit water was about 200 feet beyond the intersection. Id. MMS withdrew from the 

area on September 28 and then, on or about October 12, MMS was told to remove all of its 

equipment from the mine and that its services would no longer be required. Tr. 101. The area was 

barricaded due to hazardous conditions created by the presence of the water. 

Magorian disagreed with the testimony of Vadnal that the conditions in the back would 

have remained the same between early October and November 2. Tr. 103. He believes that the 

ground was under high stress and in several areas it was “moving all over the place while we 

 4

 Mr. Magorian has a Bachelor of Science in mining engineering and has worked in 

underground mines for about 40 years. Tr. 91. 

39 FMSHRC Page 1152
were digging it.” Id. The tunnel liner was being pushed around in the area beyond the 

intersection, which Magorian called the “AP Zone.” 

Magorian testified that he would have no knowledge whether anyone entered the 

intersection after MMS left the mine in early October. Tr. 106. The last time he was personally in 

the intersection was on September 27 and “the crown was in very good shape.” Tr. 112-13. In 

fact, he was told that the area was to be barricaded and only accessed by qualified people and 

that it would be bolted before anyone entered the area again. Tr. 106, 113-114. The mine owner 

wanted to see if the area stabilized over time so that it could continue mining. Tr. 107. 

Magorian also testified that Inspector Barney, during a conversation, questioned the 

competence of MMS to be performing the tunneling work because the company builds wine 

cellars.5 Tr. 108. Magorian said that MSHA inspected the work of MMS in August 2015 when it 

was mining through softer ground conditions. Although he was not present at the time, he 

understood that the MSHA inspector “liked the work we were doing” using the same techniques 

that were in place while working in the subject intersection. Tr. 108. Magorian said that he works 

hard to ensure the safety of MMS’s employees and that it has not had a reportable injury in 28 

years. Tr. 109. 

MMS also called David W. Halverson6 as a witness. He was the underground 

superintendent for Atna Resources at the Pinson Mine from February 2, 2015 until October 14, 

2015, when he was laid off. Tr. 117. He advised MMS on October 2, 2015 that its services were 

no longer needed at the mine because there was “no place for [it] to work” once the area in 

which it was working became flooded with water. Tr. 118. “We had to shut everything down, and 

a lot of damage occurred, because of that water[.]” Id. 

Halverson testified that two ground support plans had been submitted to MSHA. One was 

the standard “drill, and blast, [and] ground support plan.” Tr. 121. A separate plan was submitted 

for MMS’s work. Halverson was underground about four days a week and he observed MMS 

following its ground support plan; MMS was “very meticulous” in its work. 

On rebuttal, Vadnal testified that shotcrete sprayed in compression can act as structural 

support. Tr. 123. Specifically, “[i]f the ground had some stability to it to begin with, the multiple 

layers of shotcrete and welded wire mesh would support the ground.” Id. However, the two-inch 

layer of shotcrete sprayed at the 4644 intersection would not provide support. Vadnal 

characterized the shotcrete applied as a “flash coat to keep the air from affecting the rock.” Id. 

He further testified that, as far as he is aware, all underground gold mines in Nevada use roof 

bolts to support the back. 

 5

 Magorian testified that building caves in California used for the storage of wine 

constitutes about 80% of MMS’s business. Tr. 114. Since 2000, MMS has completed only three 

tunnel related projects at underground mines. Id. 

 

6

 Halverson has a Bachelor of Science in geological engineering and he has worked in the 

mining industry since 1982. Tr. 120. 

39 FMSHRC Page 1153
Citation No. 8876362 

Fact of Violation 

I find that the Secretary has proven a violation. The cited standard requires that ground 

support be used where ground conditions, or mining experience in similar conditions, indicate 

that support is necessary. Further, when support is necessary it must be designed, installed, and 

maintained to control the ground in places where persons work or travel. Here, I find that the 

conditions present in the intersection necessitated ground support and that the limited support 

provided by MMS did not control the ground.7

I credit the testimony of Barney and Vadnal that the back in this particular intersection, 

which consisted of sand, gravel, shale, clay and boulders, was not solid and that the ground in 

this area of Nevada is “notoriously unstable.” Their conclusions are supported by the multiple 

falls of ground which had already occurred in the area, as well as Magorian’s own testimony that 

the ground in the area was “moving all over the place while we were digging it.” Tr. 103. Vadnal, 

who was offered and accepted as an expert, explained that, given the larger area of back exposed 

in intersections, all intersections in this type of ground require some sort of permanent support. 

He stated that permanent support should have been installed as soon as the intersection was cut. 

While MMS did put up a two inch coat of shotcrete and welded wire mesh held by rebar in the 

intersection,8

 I credit Vadnal’s expert opinion that this support would not have controlled this 

ground and, instead, would only have kept the air from affecting the rock. Magorian’s method of 

roof support may well work in many mine environments, but it was not sufficient in the 

intersection at issue. Moreover, and as explained immediately below, miners clearly traveled in 

the inadequately supported area. Accordingly, I find that a violation existed.9

While Respondent argues that the Secretary failed to present evidence of an employee 

actually being exposed to the condition, I disagree. MMS Br. 2. The Secretary introduced a map 

into evidence which depicts the layout of the area in question along with annotations that show 

 7

 The Secretary attempts to establish that MMS violated the standard because it failed to 

comply with the Pinson Ground Support plan, dated October 19, 2015. Sec’y Br. 6. However, 

and as noted by the Secretary, it is unclear if this or any other plan was in place at the time MMS 

was in the mine. Accordingly, I have not relied on the plan in reaching my findings. 

 

8

 I decline to credit the testimony of Magorian that the ground was adequately supported 

by the two inch shotcrete coat, wire mesh and rebar in the 4644 intersection. The majority of 

MMS’s business is derived from building caves for California wine businesses. Since 2000 MMS 

has only worked on three tunnel projects at an underground mine. 

9

 While Magorian offered testimony that SMD was responsible for all bolting, clearly that 

was not the case, as evidenced by his statement that MMS did at times install bolts when needed. 

Tr. 105. At a minimum, MMS should have advised SMD that ground support was required in the 

intersection before the work proceeded further. 

39 FMSHRC Page 1154
that MMS and SMD worked those areas.10 GX-3B. Respondent did not dispute the annotations 

on the map. Barney indicated on the map where the subject intersection was located. The map 

clearly shows that MMS, as well as SMD, worked on areas inby the intersection and that 

personnel would have had to pass through that intersection in order to travel to those inby areas. 

Accordingly, MMS personnel were exposed. 

Respondent also argues that the Secretary has the burden of proving that the violation 

occurred on the date noted in Section I, Block 1 of the citation form. I disagree. Section I, Block 

1 indicates the date the citation was issued, not the date of the actual violation. The Commission 

has explained that an inspector need not actually observe a violation at the time of its occurrence 

in order to conclude that a violation did in fact occur. See Emerald Mines Corp., 9 FMSHRC 

1590 (Sept. 1987), aff'd, Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 59 (D.C. Cir. 1988); see 

also Nacco Mining Co., 9 FMSHRC 1541 (Sept. 1987). It is not necessary for the Secretary to 

prove that a violation existed on the date he issued the citation. Rather, he need only prove that a 

violation occurred. I find that the Secretary established that MMS violated the standard. 

Gravity and S&S 

An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In 

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

violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of 

danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek 

Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a 

violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 

1275, 1278-79 (Dec. 1998). 

The Commission has explained that the focus of the Mathies analysis “centers on the 

interplay between the second and third steps.” ICG Illinois, 38 FMSHRC 2473, 2475 (Oct. 2016) 

(citing Newtown Energy Inc., 38 FMSHRC 2033 (Aug. 2016)). The second step requires the 

judge to adequately define the “particular hazard to which the violation allegedly contributes[,]” 

and then determine whether “there exists a reasonable likelihood of the occurrence of the hazard 

against which the mandatory safety standard is directed.” Id. at 2475-2476. This determination 

must be made “based on the particular facts surrounding the violation[.]” Id. The third step then 

requires the judge to assume the existence of a hazard and assess whether the hazard “was 

reasonably likely to result in serious injury.” Newtown at 2038; ICG Illinois at 2476. 

The “reasonably likely” provision does not require the Secretary to prove that an injury 

was “more probable than not.” U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In 

addition, the “Secretary need not prove a reasonable likelihood that the violation itself will cause 

injury” but, rather, that the hazard contributed to by the violation is reasonably likely to cause an 

 10 Barney testified that he obtained map from the Atna personnel and asked them to 

outline and highlight the areas of the mine that MMS had worked in. Tr. 29. 

39 FMSHRC Page 1155
injury. Musser Engineering, Inc. and PBS Coals Inc., 32 FMSHRC 1257, 1280-81 (Oct. 

2010)(emphasis added); Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011). 

I find that the violation was S&S. MMS violated the standard. The hazard to which the 

violation allegedly contributes is a person being struck by ground that was either unsupported or 

inadequately supported. I find that this hazard was reasonably likely to occur given the 

inadequate ground support provided, the unstable ground, and the frequency with which miners 

passed through the area. I addressed the instability of the ground and inadequate support in my 

findings above. It is critical to note that persons were exposed to the condition for an extended 

period of time. MMS, SMD and Atna personnel continued to travel under the inadequately 

supported roof between the time the intersection was completed and early October, a period of 

several months. Given the instability of the rock in the area, I find it likely that a fall of ground 

would occur and that such a fall was reasonably likely to strike and injure a miner. A large rock 

falling and striking a miner could easily cause a fatal injury. The violation was S&S and serious. 

Negligence and Unwarrantable Failure 

If find that the violation was a result of Respondent’s high negligence and unwarrantable 

failure to comply with the cited standard. The Commission has recognized that “[e]ach 

mandatory standard . . . carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to meet the appropriate duty can lead to a finding of 

negligence if a violation of that standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 

1983). In determining whether an operator has met its duty of care, the Commission considers 

“what actions would have been taken under the same circumstances by a reasonably prudent 

person familiar with the mining industry, the relevant facts, and the protective purpose of the 

regulation.” Jim Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted). 

Respondent was highly negligent in failing to install adequate roof support. I credit 

Barney’s testimony that Magorian knew the intersection only had a two inch flash coat of 

shotcrete and was not adequately supported. Tr. 48-49. Barney’s testimony was based on his 

inspections notes that he recorded contemporaneously while speaking with Magorian. GX-1 pp. 

18-19. Given the unstable ground in this area, a reasonably prudent person familiar with the 

mining industry would know that the intersection could not be properly supported by a two inch 

flash coat of shotcrete. Allowing that condition to continue to exist for an extended period of 

time, during which the likelihood of a hazard developing continued to increase, demonstrates 

high negligence.

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

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

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by conduct described as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test). The 

Commission has explained that whether a citation is an “unwarrantable failure” is a question that 

39 FMSHRC Page 1156
should be evaluated based on the facts and circumstances in each case, and in light of each of the 

following factors: (1) the length of time that the violation has existed; (2) the extent of the 

violative condition; (3) whether the operator has been placed on notice that greater efforts were 

necessary for compliance; (4) the operator’s efforts in abating the violative condition; (5) 

whether the violation was obvious; (6) whether the condition posed a high degree of danger; and 

(7) the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). All of the relevant 

facts and circumstances of each case must be examined to determine if an actor’s conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 

I find that the violation was obvious, extensive, existed for an extended period of time, 

posed a high degree of danger, and, despite being known to MMS, no steps had been taken to 

abate the condition prior to the issuance of the citation. Magorian knew that the only support 

provided in the area was the two inch flash coat of shotcrete with welded wire mesh held by 

rebar. As discussed above, this did not amount to adequate support. The lack of proper 

permanent support was plainly obvious. Nevertheless, the condition existed for an extended 

period of time from roughly late July until the day the citation was issued in early November. 

While the condition was limited to a single intersection, it was extensive given the number of 

people from MMS, SMD and Atna that passed through that area and were exposed to the 

condition over the extended period of time. Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 

3079-3080 (Dec. 2014) (citing Watkins Eng'rs & Constructors, 24 FMSHRC 669, 681 (July 

2002)). For the same reasons set forth in my S&S finding, I find that the condition presented a 

high degree of danger. No credible evidence was introduced as to Respondent’s efforts to abate 

the condition prior to the issuance of the citation. While the Secretary presented no evidence that 

Respondent was on notice that greater efforts were necessary for compliance, I find that, on 

balance, my findings on the other factors establish that Respondent engaged in aggravated 

conduct and unwarrantably failed to comply with the cited standard. 

I find that a penalty of $10,000 is appropriate for this citation. I am not bound by the 

Secretary’s proposed penalty of $6,996. I assess this $10,000 penalty because the cited condition 

created a severe and obvious hazard and because MMS was highly negligent. 

Order No. 8876363 

Fact of Violation 

I find that the Secretary has failed to prove a violation. The cited standard requires that 

ground conditions that create a hazard to persons be taken down or supported before work or 

travel is permitted. Unlike the previous citation issued for failure to provide ground support 

when ground conditions or mining experience indicate that support is necessary, the cited 

standard here requires the Secretary to prove that a hazard existed. Here, I find that the Secretary 

failed to establish that a specific hazard existed during the time when MMS had some level of 

control over the area. See Ames Construction, Inc., 33 FMSHRC 1607 (July 2011); Sec'y of 

Labor v. National Cement Co. of Cal., Inc., 573 F.3d 788 (D.C. Cir. 2009). 

39 FMSHRC Page 1157
The Secretary, in his brief, primarily argues that a hazard existed because Hanson was 

able to easily scale down a 50 pound piece of loose during his inspection. Inspector Barney’s 

inspection of the cited area occurred approximately one month after MMS left the mine. The 

language in the order relies exclusively on the presence of specific pieces of loose rock. There is 

no proof that those pieces of loose rock were present when MMS was working in the mine. I 

cannot speculate that the ground scaled down in the inspector’s presence existed at the time 

MMS was still working in the mine. In fact, Barney acknowledged that SMD scaled down loose 

“on a regular basis each and every shift[.]” Tr. 69. Assuming that to be the case, I find it unlikely 

that this loose, which was so easily scaled down, had existed since MMS was in the mine 

roughly a month prior. 

We simply do not know what conditions existed when MMS left the mine. I cannot credit 

Vidal’s testimony that ground conditions would not have changed between early October and 

November 2. The evidence shows that ground conditions in the area were not static but were 

under high stress. I find that the Secretary failed to meet his burden of proving that loose ground 

was present during the time period MMS was working in that area of the mine.11 Cf. Master 

Aggregates TOA Baja Corp., 28 FMSHRC 835, 839-840 (Sept. 2016) (ALJ) (Vacating a citation 

issued under section 56.3200 where the Secretary presented no probative direct evidence of 

hazardous conditions that existed prior to a fatal fall of ground). Order No. 8876363 is 

VACATED. 

Order No. 8876391, WEST 2016-445-M; and Order No. 8876392, WEST 2016-445-M. 

Order No. 8876391, issued under section 104(d)(2) of the Mine Act on December 1, 

2015, alleges a violation of section 57.15005 of the Secretary’s safety standards and asserts that a 

miner was not wearing fall protection while on top of a load of ventilation pipe that was stacked 

on the bed of a truck. GX-5. In relevant part, the safety standard provides that “[s]afety belts and 

lines shall be worn when persons work where there is a danger of falling[.]” 30 C.F.R. § 

57.15005. 

Order No. 8876392, issued under section 104(d)(2) of the Mine Act on December 1, 

2015, alleges a violation of section 57.11001 of the Secretary’s safety standards and asserts that 

no safe means of access was provided for a miner working on top of a load of ventilation pipe. 

GX-6. The order further alleges that the top of the load measured nine feet above the ground. In 

relevant part, the safety standard provides that a “[s]afe means of access shall be provided and 

maintained to all working places.” 30 C.F.R. § 57.11001. 

 11 It is important to distinguish this finding that the Secretary failed to establish that a 

hazard was present, from my S&S finding in the previous citation that there was a particular 

hazard to which the which the violation allegedly contributed. The S&S analysis requires that the 

Secretary establish only that the occurrence of a hazard was reasonably likely and that the 

violation contributed to that hazard. Here the standard itself requires that a hazard be present. 

The Secretary did not establish that the loose rock in question was present at the time MMS was 

working in the mine or that any loose rock was present prior to the end of September. Inspector 

Barney agreed that SMD regularly scaled down the back in the intersection. 

39 FMSHRC Page 1158
Inspector Barney determined that, with respect to both orders, an injury was highly likely 

to be sustained and, if an injury occurred, it could reasonably be expected to be fatal. He 

determined that both violations were S&S, and that one person was affected by the conditions set 

forth in each order. The inspector determined that MMS’s negligence was high in both orders. In 

the orders, the inspector stated that MMS’s supervisor engaged in aggravated conduct because 

(1) he knew that there was no fall protection available and allowed the miner to stand on top of 

the load, and (2) he knew that there was no safe access and allowed the miner to climb over the 

cab of the truck. The Secretary proposed a penalty of $10,700 for each order under his special 

assessment regulation, 30 C.F.R. § 100.5. 

Summary of the Evidence 

Inspector Barney testified that as he was driving on mine property, he saw a truck loaded 

with ventilation pipe at the surface lay-down area. An individual, Jim Morse, was standing on 

top of the pipes. He pulled over to see if the individual was wearing any fall protection. Tr. 132. 

When Barney did not see a supervisor around, he asked Morse to safely climb down from the top 

of the load and issued Imminent Danger Order No. 8876390.12 Tr. 132, 141. The distance 

between the top of the load to the ground was nine feet, as measured by the inspector. Tr. 133. 

The truck was not equipped with guard rails. It was a cold day and Inspector Barney observed a 

“thin skin” of ice on the pipes. There is no dispute that Morse was not wearing fall protection. Tr. 

127-28; GX-9 p. 3. Inspector Barney considered Morse to be a miner because he worked at a 

mine. Tr. 146-47. 

The inspector determined that the violation was S&S because there was a “very real 

possibility of a slip and fall.” Tr. 133. A fall was “highly likely” because ice was present on the 

pipes, the miner was nine feet above the ground, and the pipes were being loaded onto the truck 

from behind with a forklift. Id. The inspector testified that a fall from that height “could easily be 

fatal.” Tr. 134. 

The inspector testified that Becker told him that he did not have any fall protection 

available and that he was “more worried about getting the load ready for the highway than he 

was about fall protection[.]” Tr. 134-35, GX-5 p. 2. As a consequence, Inspector Barney 

determined that MMS’s negligence was high. He also designed the violation was an 

unwarrantable failure because Becker, who was a supervisor, admitted that he instructed the 

miner to go up on the load and did not tell him to use fall protection. Tr. 135). The condition was 

abated by getting a full body harness from Atna Resource’s warehouse. 

Inspector Barney issued Order No. 8876392 a few minutes after he issued the previous 

order. The inspector testified that when he ordered Morse to come down from the top of the load, 

he observed him crawling off the front of the load, down the windshield and then down the hood 

and across the front bumper of the truck. Tr. 137, 150. Inspector Barney determined that the 

violation was S&S because, taking into consideration the icy conditions, “it was highly likely 

that an injury would occur.” Id. Morse could have slipped and fallen while climbing down. 

 12 The imminent danger order is not before me and a search of the Commission’s 

electronic case management system (eCMS) indicates that MMS did not contest the order. 

39 FMSHRC Page 1159
Inspector Barney determined that MMS’s negligence was high and that the violation was 

the result of its unwarrantable failure to comply with the safety standard because Becker told him 

that there was a ladder about 50 feet away from the truck that could have been used to get on and 

off the load on the truck. Tr. 138-39; GX-6 at 2. 

Kevin Becker testified that he had just finished placing a pipe on the bed of the truck with 

a backhoe forklift when Inspector Barney arrived. Tr. 153. He heard the inspector order Morse 

down from the truck “in a safe manner.” Id. The inspector spoke in an authoritative manner and 

he clearly wanted Morse to immediately get off the truck. He added the words “in a safe manner” 

a few seconds after he told Morse to get down. Tr. 154. Becker went to get a ladder to help 

Morse get down but by the time he got back, Morse was already off the truck. Tr. 155. 

Jim Morse testified that he was an employee of MMS at the time the two orders were 

issued. Tr. 157. He recalled that Inspector Barney yelled “get off that truck” as soon as he drove 

up. Id. Morse immediately got down. He stated that he got down by stepping on the headboard 

and then using steel rails on the back of the headboard to step down between the cab and the 

headboard. Tr. 158. He said that there was “no way I’d go over the hood and the roof of my 

brand-new baby truck.” Id. 

Morse testified that he was employed by MMS to drive a Class 1 commercial vehicle “to 

the job site to remove supplies from that job site.” Tr. 159. That has been his primary job while 

working for MMS. 

Order No. 8876391 

Fact of Violation 

I find that the Secretary established a violation of the cited standard.13 Section 57.15005 

requires that safety belts and lines be worn when persons work where there is a danger of falling. 

There is no dispute that Morse14 was not wearing fall protection. I credit Barney’s testimony that 

there was a danger of Morse falling nine feet from his position on top of pipes in the bed of a 

truck with no guard rails. Because there was a danger of falling and no fall protection was being 

used, I find that a violation existed. 

 13 Respondent, in discovery responses, conceded that it violated the cited standard. GX-9 

p. 3. 

 

14 Despite conceding that a violation occurred, Respondent nevertheless argues that 

Morse was not a “miner” because he was only a truck driver. MMS Br. 7-9. In making this 

argument Respondent incorrectly relies on the Part 46 definitions of “miner” and “mine site” 

which applies only to training standards. 30 C.F.R. pt. 46. The Mine Act defines a “miner” as 

“any individual working in a coal or other mine.” 30 U.S.C. § 802(g). Morse, an employee of 

MMS, was tasked with driving a truck “to the job site.” In this case, the Pinson Mine lay-down 

area was the job site. Tr. 131. Because Morse was working at the Pinson Mine, he was a “miner” 

under the Act.

39 FMSHRC Page 1160
Gravity and S&S 

I find that the Secretary established that the violation was S&S. MMS violated the 

standard. Here, the hazard to which the violation allegedly contributes is a miner falling from 

height without fall protection. Working nine feet off the ground on an uneven surface without fall 

protection or railings was dangerous. The presence of ice on that uneven surface exacerbated the 

likelihood of a fall. Given the presence of ice on the pipes and the lack of anything to protect 

Morse from falling from his standing position on top of the uneven surfaces of the pipes, I find 

that the hazard was, at the very least, reasonably likely to occur. Barney testified that a fall under 

those conditions could easily result in a fatality. I agree and find that a serious injury was 

reasonably likely to be sustained in the event of a fall from that height. Commission judges have 

held that serious injuries can be sustained from falls of less than nine feet. E.g., Small Mine 

Development, 33 FMSHRC 1477 (June 2011) (ALJ), Molton Co., LP, 31 FMSHRC 427 (Mar. 

2009) (ALJ). The violation was S&S and serious.. 

Negligence and Unwarrantable Failure 

I find that, the violation was a result of Respondent’s high negligence and unwarrantable 

failure to comply with the standard. I credit Barney’s testimony that Becker, a supervisor, 

instructed Morse to go up on the pipes and that he knew no fall protection was present. I further 

credit Barney’s testimony that Becker said that he was more concerned with getting the load 

ready for travel than providing fall protection. I note that Respondent did not dispute Barney’s 

testimony on these issues despite offering Becker as a witness. Given the obvious hazard 

presented by working at height without fall protection, and the lack of mitigating circumstances, 

I find that both Morse and Becker were highly negligent. Because Becker was a supervisor 

directing Morse’s work, I find that he was an agent of MMS and that his negligence is imputable 

to MMS.15

As discussed above, the condition was obvious, presented a high degree of danger, and 

Becker, a supervisor, clearly had knowledge of it given that he was directing Morse’s work and 

was aware that MMS had no fall protection equipment. Moreover, no evidence was presented 

that steps were being taken to abate the condition prior to the issuance of the order. In Newtown 

Energy, Inc., the Commission stated that supervisors are “held to a higher standard of care than a 

rank and file miner, and as such, evidence of a supervisor’s involvement in the creation of a 

violative condition is an aggravating factor that should be considered in conjunction with the 

traditional unwarrantable failure factors.” 38 FMSHRC 2033, 2044 (Aug. 2016). Becker’s 

involvement as the supervisor who directed Morse to get on top of the pipes while knowing that 

there was no fall protection is a substantial aggravating factor. Becker not only instructed Morse 

to get on top of the pipes, thereby creating the violation, he also was present the entire time since 

he was the individual driving the forklift that was placing the pipes in the bed of the truck. 

 15 The Commission has held that “the negligence of an operator’s ‘agent’ is imputable to 

the operator for penalty assessment and unwarrantable failure purposes.” Nelson Quarries, Inc., 

31FMSHRC 318, 328 (Mar. 2009). The Mine Act defines an “agent” as “any person charged 

with responsibility for the operation of all or part of a coal or other mine or the supervision of 

miners in a coal or other mine[.]” 30 U.S.C. § 802(e). 

39 FMSHRC Page 1161
While it is unclear how long the condition existed and no evidence was introduced to 

establish that MMS was on notice that it needed to do more to comply with the cited standard, I 

find that Becker’s conduct, as a supervisor, when considered with the other aggravating factors, 

amounted to a serious lack of reasonable care and that he unwarrantably failed to comply with 

the standard. Accordingly, I affirm the unwarrantable failure designation. 

Order No. 8876391 was originally issued under section 104(d)(2), with Order No. 

8876363 serving as the underlying 104(d)(1) order. Because I have vacated Order No. 8876363, 

Order No. 8876391 is modified to a 104(d)(1) order. The Secretary proposed a civil penalty 

under his special assessment regulation. 30 C.F.R. § 100.5. Based on my above findings, I assess 

a penalty of $10,000 for this order because the hazard created by the violation was immediate 

and obvious and MMS was highly negligent. 

Order No. 8876392 

Fact of Violation 

I find that the Secretary established a violation of the cited standard. The cited standard 

requires that safe means of access be provided and maintained to all working places. The parties 

offered conflicting testimony as to how Morse traveled from his position on top of the pipes to 

the ground. While Barney testified that he observed Morse climb off the front of the load, down 

the windshield, and then over the hood and across the front bumper of the truck, Morse testified 

that he stepped on the headboard and then used steel rails on the back of the headboard to go 

down between the cab and the headboard. I need not resolve this conflict. I find that, in either 

case, safe access was not provided or maintained. Clearly, climbing over the cab of the truck and 

down the windshield and hood is not safe access. A miner could easily slip or fall from those 

surfaces. If Morse climbed down the way he described, he did not do so in a safe manner. The 

abatement photo for the fall protection violation shows the area that Morse avers he used to 

climb down, i.e., the area between the cab and the headboard. GX-5 p. 4. This area clearly was 

not intended to be used as an access route and a reasonably prudent person familiar with the 

mining industry and the protective purpose of the standard would not expect to be in compliance 

by allowing a miner to climb up or down via this route.16 Ideal Cement Co., 12 FMSHRC 2409, 

2415 (Nov. 1990). The record does not establish how Morse gained access to the top of the truck 

bed when Becker started loading the pipes. I find that the Secretary has proven that safe access 

was not provided or maintained. 

 16 Respondent argues that the cited standard does not apply to the present situation 

because (1) Morse was not a miner, and (2) he was not “accessing” the area when he climbed 

down but, rather, was “egressing” the area. I find these arguments to be without merit. First, for 

the reasons set forth above in relation to the fall protection violation, I find that Morse was a 

“miner” under the Act. Second, whether Morse was traveling onto the bed of the truck or 

traveling down from on top of the load is immaterial. The area on top of the pipes was a working 

place and safe access, for Morse or any other person, needed to be provided and maintained. 

39 FMSHRC Page 1162
Gravity and S&S 

I find that the Secretary established that the violation was S&S. MMS violated the 

standard. Here, the hazard to which the violation allegedly contributes is a miner being unable to 

safely travel from on top of the load to ground level or vice versa. As discussed above, Morse 

was already standing on uneven, ice covered pipes. Neither of the respective routes described by 

Barney or Morse from his location on top of the load could reasonably be considered a safe 

option for travel. In both instances Morse would be taking a route not intended for a person to 

travel, which in turn would put him in a position where he was reasonably likely to fall. As with 

the above citation, a serious injury was reasonably likely to be sustained in the event of a fall. 

The violation was S&S and serious. 

Negligence and Unwarrantable Failure 

I find that the violation was the result of MMS’s moderate negligence. Becker testified 

that, when the inspector ordered Morse off of the pipes, he went to go get a ladder to help Morse 

get down. Tr. 155. Based on that testimony it is reasonable to infer that Becker knew a ladder 

was needed to safely descend from the elevated working place. Morse climbed down from the 

truck upon the inspector’s orders without waiting for Becker to get a ladder because he believed 

that the inspector wanted him to get down immediately. But for the inspector’s command, Morse 

could have sat upon one of the pipes and waited for Becker to get the ladder. As stated above, 

there is no evidence as to how Morse got up on the bed of the truck. It is entirely possible that the 

truck bed was empty when he did so. Based on the above, I find that the negligence of MMS was 

moderate. Although Becker was in the area when the violation occurred he was taking steps to 

get Morse down in a safe manner by getting the ladder. The abatement photo shows a ladder tied 

to the truck. GX-6 at 5. 

For the same reason, the Secretary did not establish that the violation was the result of 

aggravated conduct. Becker was taking steps to abate the hazard. Although the condition 

presented a high degree of danger, there is no evidence that MMS was on notice that it needed to 

do more to comply with the cited safety standard. Whether this was a frequent occurrence at the 

mine is not known. The unwarrantable failure designation is removed and this 104(d)(2) order is 

modified to a 104(a) citation. 

I assess a penalty of $3,000 for this violation taking into consideration the six penalty 

criteria. I have reduced the penalty from that proposed by the Secretary because the violation was 

not the result of MMS’s aggravated conduct and to account for the reduction in negligence. 

II. APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s website MMS worked fewer 

than 5,000 hours in 2015, which correlates with a small-sized contractor. 30 C.F.R. § 100.3 Table 

V. The parties have stipulated that the penalties will not affect MMS’s ability to remain in 

business. In addition to the uncontested imminent danger order discussed above, MMS was 

39 FMSHRC Page 1163
issued only one non-S&S citation in the 15 months preceding the issuance of these citations and 

orders. The gravity and negligence are discussed above. The citations were timely abated. Based 

on the penalty criteria I assess a total penalty of $23.000. 

III. ORDER 

For the reasons set forth above, Citation No. 8876362 and 8876391 are AFFIRMED as 

issued, Order No. 8876363 is VACATED, and Order No. and 8876392 is MODIFIED as set 

forth above. Magorian Mine Services is ORDERED TO PAY the Secretary of Labor the sum of 

$23,000.00 within 40 days of the date of this decision. 

 /s/ Richard W. Manning 

 Richard W. Manning

 Administrative Law Judge 

Distribution: 

Rose Darling, Esq., and Mark A. Pilotin, Esq., Office of the Solicitor, U.S. Department of Labor, 

90 7th Street, Suite 3-700, San Francisco, CA 94103-6704 (Certified Mail) 

Robert D. Peterson, Esq., Robert D. Peterson Law Corporation, 3300 Sunset Boulevard, Suite 

110, Rocklin, CA 95677 (Certified Mail) 

39 FMSHRC Page 1164
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

PHONE: (202) 434-9933 | FAX: (202) 434-9949

 

May 25, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2015-1036 

 Petitioner, A.C. No. 46-09415-391343 

v. 

 

BUNDY AUGER MINING, INC., Mine: Lost Flats Highwall Miner 

 Respondent. 

DECISION DENYING SETTLEMENT MOTION 

Before: Judge Moran 

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

801 et seq. (2012) (“Mine Act”) and is before the Court upon a petition for assessment of a civil 

penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary 

has filed a Motion for Decision and Order Approving Settlement (“Secretary’s Motion,” or 

“Motion”). The originally assessed amount was $6,300.00, and the proposed settlement is for 

$4,410.00. Upon review, as explained below, the Court concludes that the proffered settlement 

does not meet the criteria set forth in section 110(i) of the Act, because the Secretary has not 

provided sufficient facts to justify its sought-after penalty reduction. Accordingly, the Motion is 

DENIED and this case will be set for hearing.

 Involved are 2 (two) specially assessed alleged violations of the Mine Act. One is a section 

104(d)(1) citation, No. 9082933, and the other is a section 104(d)(1) order, No. 9082935. While 

the proposed penalty amounts differ, $2,900 in the case of No. 9082933, with a settlement figure 

of $2,030, and $3,400 in the case of 9082935, with a settlement figure of $2,380, both reductions 

amount to the ubiquitous 30% penalty reduction that has appeared in other cases. See The 

American Coal Company et al., 38 FMSHRC 1972, 1981 (2016). 

 Understanding the deficiency in the Motion begins with an appreciation of the standards 

alleged to have been violated. The section 104(d)(1) citation, No. 9082933, involves 30 C.F.R. 

§ 77.1004(b), titled “Ground control; inspection and maintenance; general,” which provides at 

subsection (b) that “Overhanging highwalls and banks shall be taken down and other unsafe 

ground conditions shall be corrected promptly, or the area shall be posted.”1

 30 C.F.R. 

§ 77.1104(b).

 1

 Subsection (a) of 30 C.F.R. § 77.1004 provides “Highwalls, banks, benches, and terrain 

sloping into the working areas shall be examined after every rain, freeze, or thaw before men 

work in such areas . . .” and it ties into the other standard cited in this matter by referencing that 

“such examination shall be made and recorded in accordance with § 77.1713.” 30 C.F.R. § 

77.1004(a).

39 FMSHRC Page 1165
 The (d)(1) citation states, 

The operator failed to take down, correct or post an unsafe ground conditions [sic]

located along the measured [sic] the measured 60 to >80 vertical spoil low-wall 

for a horizontal distance of approximately 231 feet in the active Pit #0001.

Oversteepend [sic] spoil slopes and loose rocks/soil measuring several inches in 

diameter were observed laying on the pit floor 3 to 4 feet from the unprotected 

low-wall toe area and in the middle of the active haul road to the active pit end.

Large rocks 2 to 4 feet in diameter were observed on top of the > 60 foot spoil

pile. The approximately 20 foot wide pit access and haul road traveled along the 

unprotected toe of the low-wall/spoil pile toe and immediately behind the 

Highwall Miner (SHM #06). Fallen loose rocks approximately 3 to 4 inches in 

diameter were observed laying along the toe of the oversteepened [sic] spoil pile.

An excavator and loader was [sic] observed loading coal below the unprotected 

low-wall and oversteepened [sic] spoil slope. Loader tire tracks were observed 

from 1 to 5 feet from areas of the low-wall /spoil pile. 1 Excavator, 3 loaders, 1 

pick-up, multiple coal dump trucks and the 3 person Highwall Miner crew were 

observed actively traveling to and from the pit. Continued mining will require the 

miners to continue pit and highwall development to remove at least two more 

highwall miner holes. Measurements were taken with the Laser Technology 

Impulse electronic measuring device (EDM). The mine operator’s haul trucks, 

loader, and highwall miner crew have traveled the area at least day shifts for the 

last seven months and would continue pit work for at least a [sic] 2 or 3 shifts of 

mining. Miner’s, [sic] including agents of the operator, have traveled the area at 

least 2 dayshifts since the condition was recorded, but not corrected, in the daily 

onshift examination dates March 31, 2015 to April 2, 2015. The mine operator 

allowed and directed miners to work and travel with a [sic] unsafe condition not 

corrected or posted in the active pit. The mine operator has engaged in aggravated 

conduct constituting more than ordinary negligence. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Citation No. 9082933. 

 As noted, this matter was specially assessed. That special assessment stated, 

the vertical spoil low-wall and over-steepened slopes in active Pit #001 created 

hazards and were not corrected nor barricaded off before work or travel was 

permitted in the area. The gravity of the violation was considered serious. Oversteepened slopes and loose rocks were laying on the pit floor near the unprotected 

low wall and in the middle of the haul road to the active pit. Large rocks were on 

top of the 60-foot spoil pile. This condition could have contributed to the cause of 

a serious injury or fatality, from the fall-of -materials, to the equipment operators 

that worked at the active pit. The violation resulted from the operator’s high 

degree of negligence. The over-steepened slopes and unprotected low-wall area 

conditions were extensive and had existed for an extended period of time. The 

operator was aware of the conditions – they had just been cited, for the same 

39 FMSHRC Page 1166
conditions, earlier during the week. No efforts were made to correct the obvious 

hazards and miners were allowed to continue normal mining operations. 

Narrative Findings for a Special Assessment at 1 (emphasis added). 

 Thus, the section 104(d)(1) citation, No. 9082933, which appears to be both detailed and 

well documented, alleges, at its heart, patently unsafe ground conditions involving a significant 

distance over a tall spoil wall. It is also troublesome that the Motion touts that the settlement 

involves “Penalty reduction[s] only,” as if the reduction in the penalty amount sought is not a 

major concern. Motion at 1-2 (emphasis added). 

Congress expressed otherwise, noting that penalties are important. As the D.C. Circuit 

found upon a review of the Mine Act’s legislative history, “Congress was intent on assuring that 

the civil penalties provide an effective deterrent against all offenders, and particularly against 

offenders with records of past violations.” Coal Employment Project v. Dole, 889 F.2d 1127, 

1133 (D.C. Cir. 1989). The Supreme Court also found that civil penalties serve an important role 

in deterring future violations: “the deterrence provided by monetary sanctions is essential to [the] 

objective [of obtaining compliance with health and safety standards.]” Nat’l Independent Coal 

Operators’ Ass’n., 423 U.S. 388, 401 (1976). The Commission likewise found that 

the Act's legislative history, and numerous Commission and federal cases identify 

deterrence as a central tenet of the Mine Act and its penalty provisions. This leads 

to the inexorable conclusion that, in approving or rejecting a proposed settlement, 

a Commission Judge may take into account the deterrent effect of the penalty. Our 

decision in Ambrosia acknowledged the importance of the deterrent effect 

of penalties, citing to the pertinent legislative history and to the statement 

in Consolidation Coal recognizing the importance of civil penalties as deterrence. 

While acknowledging that “deterring future violations is an important purpose of 

civil penalties,” we held in that case that deterrence could not be used as a 

separate component to adjust a penalty amount after the statutory criteria have 

been considered. To the extent that the case suggests that a Judge may not 

explicitly consider deterrence in the analysis of the six statutory factors and the 

overall penalty, we overrule it, as it is not consistent with the principles set forth 

above. Moreover, it forces our Judges to perform the unenviable - and perhaps 

impossible - task of attempting to distinguish between the supposedly permissible 

goal of achieving deterrence via a penalty based on the six statutory penalty 

criteria, and the supposedly impermissible utilization of the concept as a factor 

separate from the six criteria set forth in section 110(i). Our Judges should not be 

asked to perform such analytical hair-splitting. Simply put, we refuse to require 

our Judges to apply blinders when reviewing settlement proposals, and to ignore 

the central and most obvious purpose of civil penalties — to ensure operator 

compliance with safety measures - when deciding whether such penalties are 

appropriate. Deterrence is a principle basic to and underlying the entire statutory 

39 FMSHRC Page 1167
scheme of imposing civil penalties. Thus, deterrence can and should infuse the 

Judge's consideration of whether or not to approve a settlement. 

Black Beauty Coal Co., 34 FMSHRC 1856, (Aug. 2012) (internal citations omitted). 

 The entire text of the 57 words offered as “justification” for the 30% reduction regarding 

the (d)(1) Citation, No. 9082933 states, 

Respondent presented evidence that it relied upon the representations of the 

owner Operator that it was only required to set the miner back 20 feet in order to 

be in compliance with the ground control plan. In consideration of this evidence 

and the risks inherent in proceeding to trial, the Secretary agreed to the reduction 

in penalty. 

Motion at 3. 

 Upon subtracting the 21 words of boilerplate offered by the Secretary, “In consideration 

of this evidence and the risks inherent in proceeding to trial, the Secretary agreed to the reduction 

in penalty,” which add nothing to explain the 30% reduction, one is actually left with 32 words. 

Reduced to its core, the proffered mitigation from the operator, advanced by the Secretary of 

Labor, is that “the Respondent relied upon the representations of the owner Operator that it was 

only required to set the miner back 20 feet in order to be in compliance with the ground control 

plan.” Id. (emphasis added). 

 Of course the standard speaks not at all in such terms. It deals only with unsafe ground 

conditions, requiring that they “shall be corrected promptly, or the area shall be posted.” 30 

C.F.R. § 77.1004(b). The standard makes no mention of ground control plans. Further, the 

Motion offers nothing to explain how the claim that Bundy Auger Mining was allegedly told by 

the “owner Operator,” that “it was only required to set the miner back 20 feet in order to be in 

compliance with the ground control plan,” applies to the requirements of the standard. Motion at 

3. 

 The Motion is deficient in other ways too, as there is no explanation of the relationship 

between Bundy Auger and the unnamed “owner Operator,” nor how that relationship would 

absolve Bundy from compliance with the standard or reduce the amount of its penalty liability. 

Further, the asserted relevance of the claim that, if the miner was set back 20 feet, the mine 

would be in compliance with the ground control plan vis-à-vis the standard, is not explained. The 

absence of such an explanation does not strike the Court as a mystery, because the standard 

plainly speaks in terms of the prompt correction of unsafe ground conditions. 

 For T\the section 104(d)(1) order, No. 9082935, involved is 30 C.F.R. § 77.1713(a), 

titled, “Daily inspection of surface coal mine; certified person; reports of inspection.” 

39 FMSHRC Page 1168
The standard provides at subsection (a) that 

At least once during each working shift, or more often if necessary for safety, each active 

working area and each active surface installation shall be examined by a certified person 

designated by the operator to conduct such examinations for hazardous conditions and 

any hazardous conditions noted during such examinations shall be reported to the 

operator and shall be corrected by the operator.2

30 C.F.R for § 77.1713(a). 

 Order No. 9082935 alleges, 

The operator failed to conduct an adequate on-shift examination to identify 

hazardous conditions in the active working area at the Taylor Highwall Mine, Pit 

#001, see Citations # 9082933 and #9082934, that were issued for failure to 

correct or post an unsafe ground condition. The hazardous conditions existed at 

least two shifts when examinations were to occur and was [sic] not adequately 

reported or corrected in examinations recorded for March 31 to April 2, 2015. At 

least five miners (1 loader operator, 1 excavator operator and 3 person highwall 

miner crew) were observed working and traveling approximately 1 to 5 feet from 

the toe of the oversteepened [sic] and unstable low wall/spoil. The hazardous 

conditions were obvious, extensive and easily identifiable to a person trained to 

recognize hazards with highwalls and spoil banks. The mine operator has engaged 

in aggravated conduct constituting more than ordinary negligence. This violation 

is an unwarrantable failure to comply with a mandatory standard. The operator 

immediately removed miners from the active pit and highwall area. Standard 

77.1713(a) was cited 1 time in two years at mine 4609415 (1 to the operator, 0 to 

a contractor). 

Section 104(d)(1) Order No. 9082935. 

 2

 Although the importance of subsection (a) is plain, subsections (c) and (d) underscore 

this by providing at (c) that “After each examination conducted in accordance with the 

provisions of paragraph (a) of this section, each certified person who conducted all or any part of 

the examination required shall enter with ink or indelible pencil in a book approved by the 

Secretary the date and a report of the condition of the mine or any area of the mine which he has 

inspected together with a report of the nature and location of any hazardous condition found to 

be present at the mine. The book in which such entries are made shall be kept in an area at the 

mine designated by the operator to minimize the danger of destruction by fire or other hazard,” 

and at (d) that “All examination reports recorded in accordance with the provisions of paragraph 

(c) of this section shall include a report of the action taken to abate hazardous conditions and 

shall be signed or countersigned each day by at least one of the following persons: (1) The 

surface mine foreman; (2) The assistant superintendent of the mine; (3) The superintendent of the 

mine; (4) The person designated by the operator as responsible for health and safety at the mine; 

or, (5) An equivalent mine official.” 30 C.F.R. §77.1713 (c) and (d). Subsection (b), not invoked 

here, addresses only imminent dangers. 

39 FMSHRC Page 1169
The Special Assessment for this Order notes that the cited standard is one of the “Rules to 

Live By,” and, as such, the standard has been identified as among those “that most commonly 

contribute to fatalities in the mining industry.” For such standards, about which the mining 

industry has been made aware, MSHA expects mine operators to have “heightened awareness” 

of the hazards associated with them. The Special Assessment continues, in line with the 

inspector’s assertions in his Order, that the conditions were “obvious, extensive and easily 

identified to a trained examiner.” Special Assessment at 2. Further, that Special Assessment 

asserts that members of management had been in the work areas and that such management 

failed to exercise “the slightest degree of care for miner safety.” Id. (emphasis added). 

For this matter, 69 words were presented by the Secretary of Labor to justify the 

settlement. Removing, the same rubric as for the other matter, the 21 words of boilerplate from 

the Secretary regarding “consideration of this evidence and the risks inherent in proceeding to 

trial...” 48 words remain.3

Those words advise, “Respondent presented evidence that the 

required examinations had been conducted by its agents and that Respondent reasonably believed 

it was in compliance with the ground control plan and safety procedures because it had set the 

miner back 20 feet from the highwall as instructed by the owner operator.” Motion at 3-4. 

Translated fairly, 17 words remain to justify the 30% reduction and they constitute the same 

mitigating reason that was presented for Citation No. 9082933, to wit: the Respondent 

“reasonably believed” it was in compliance with the ground control plan and safety procedures 

because “it had set the miner back 20 feet from the highwall as instructed by the owner 

operator.” Id. 

Thus, the Secretary merely parrots the Respondent’s same claim that was offered up for 

the other matter – someone else, the unidentified owner operator, allegedly told Bundy Auger 

that, if the miner was set back 20 feet from the highwall, the working shift examination 

requirement for hazardous conditions for each active working area would be met. 

This defense is inadequate because it sidesteps the requirements of the cited standard, and 

implies that the unidentified ground control plan can supersede those requirements. Plain and 

simple, the standard, as noted above, requires that, 

[a]t least once during each working shift, or more often if necessary for safety,

each active working area and each active surface installation shall be examined by

a certified person . . . for hazardous conditions and any hazardous conditions

3

 The Court wishes to make it plain that it is not engaging in bean counting. The purpose 

of noting the few words offered is twofold. First, brief as the justifications are, a large number of 

the few words are still empty, devoid of any meritorious explanation for the proposed reduction. 

Second, when examining the few words that seem to provide some justification, even those 

words are empty. This is true for both of the distilled words offered as justification for these 

(d)(1) matters. 

39 FMSHRC Page 1170
noted during such examinations shall be reported to the operator and shall be 

corrected by the operator. 

30 C.F.R. § 77.1713(a). 

 As discussed above with regard to Citation No. 9082933, the standard at issue in Order 

No. 9082935 (30 C.F.R. § 77.1713(a)) also makes no mention of ground control plans. 

Conclusion 

 The “justifications” for both of these matters – the (d)(1) citation, No. 9082933, and the 

(d)(1) order, No. 9082935 – suggest that the blame rests to some degree upon the “owner 

Operator.” However, the Motion does not identify that owner Operator, nor does it inform how 

long Bundy Auger Mining has been operating the mine, the “Lost Flats Highwall Miner.” 

Further, the Motion fails to explain how the claimed representations from the “owner Operator” 

insulate or excuse Bundy from compliance with the cited standards. Beyond that, neither 

standard allows exceptions for compliance with promptly correcting or posting unsafe ground 

conditions and the duty to have a certified person examine for hazardous conditions at least once 

during each working shift and to report any such hazards found to the operator and to have such 

hazards corrected by the operator. Importantly, neither of the cited standards infers that how far 

the miner is set back is the test or a factor for compliance – instead, hazardous conditions are the 

trigger. 

 

 Thus, neither of the cited standards allows for, or makes an exception to, compliance with 

their requirements. The parties have utterly failed to explain how shifting the blame to the 

“owner Operator” justifies the 30% penalty reduction. Yet, in stating that the Respondent relied 

upon representations of the owner Operator, the Secretary seems to be suggesting in his 

“Rationale” that the Respondent had no duty to do more than to rely upon such claimed 

representations, or at least that pointing to another entity justifies the 1/3rd reduction. This is in 

the face of the inspector’s statement that the cited conditions existed since they were recorded on 

March 31, some 3 days before the citation and order were issued. Therefore, the inspector 

asserted that the conditions were known and the Court again notes that the cited standard speaks 

in terms of the presence of hazardous conditions – unsafe ground – not how far a miner is to be 

set back. 

 The motion does not inform if the Respondent’s contention was brought to the attention 

of the issuing inspector for his reaction. The Court has commented previously that settlement 

motions should advise whether the assertions advanced by a respondent were brought to the 

attention of the issuing inspector, as such individual is MSHA’s only eyewitness to the alleged 

violations. 

 With submissions such as this, it is not surprising that Congress wisely determined that 

the Secretary could not have unbridled authority for settlements and that it included section 

110(k) in the 1977 Mine Act for that reason. The legislative history for the origin of the 

provision and Congress’ intention for the provision’s inclusion have already by repeatedly cited 

by the Commission. 

39 FMSHRC Page 1171
Accordingly, for the reasons stated, the Secretary’s Motion for Decision and Order 

Approving Settlement is DENIED. This matter is now to be set for a prompt hearing. The 

parties are directed to participate in a conference call with the Court on Thursday, June 1, 2017 

at noon EDT. The call-in number will be separately provided to the parties. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Joseph G. Jacobs, Bundy Auger Mining, Inc., PO BOX 249, Stanville, KY 41569 

Helga P. Spencer, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S. 

Independence Mall West, Suite 700 East, Philadelphia, PA 19106-3306

39 FMSHRC Page 1172
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

PHONE: (202) 434-9933 | FAX: (202) 434-9949

 

May 2, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. LAKE 2011-0013 

 Petitioner, A.C. No. 11-02752-232235 

v. 

 

THE AMERICAN COAL COMPANY, Mine: New Era Mine 

 

ORDER DENYING SETTLEMENT MOTION 

Before: Judge Moran 

 This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(2012) (“Mine Act” or “Act”). The Secretary has filed a “new” motion to approve settlement, but 

it is new only in the sense of its filing date. The Secretary continues to resist complying with the 

Commission’s requirements for settlements. Accordingly, for the reasons which follow, the 

Secretary’s motion is DENIED and the parties are ORDERED to participate in a conference call 

with the Court on Friday May 5, 2017 at 12:00 p.m. EDT for the purpose of setting a hearing 

date for this docket, which shall be held promptly.1 

 This matter now has a very long history. Over four years ago the Secretary embarked on 

its goal of emasculating section 110(k) of the Mine Act. The Court in its Decision Denying 

Settlement Motion, issued February 11, 2013, noted that: 

[t]he Motion seeks an across-the-board reduction of 30 (thirty) percent for each of 

the 32 citations involved. That, in itself, is a red flag. The idea that every one of 

32 citations could warrant a 30% reduction demonstrates, by that fact alone, that 

the reductions were more in the nature of yard sale, rather than any individualized 

review meriting, by some impossibly small odds, that each just happened to have 

earned such an implausibly uniform reduction. 

The American Coal Co., 35 FMSHRC 515, 515 (Feb. 2013) (ALJ) (emphasis omitted). 

In denying the motion, the Court observed that: 

[t]he entirety of the justification provided: ‘After further review of the evidence, 

the Secretary has determined that a reduced penalty is appropriate in light of the 

parties’ interest in settling this matter amicably without further litigation. In 

 1

 The call-in number will be provided in a separate email to the parties. 

39 FMSHRC Page 1173
recognition of the nature of the citations at issue, and the uncertainties of 

litigation, the parties wish to settle the matter with a 30% reduction in the total 

assessed penalty with no changes in gravity or negligence for any of the citations 

at issue.’ If this were a satisfactory justification, then every case would warrant a 

30% reduction to avoid the ‘uncertainties of litigation.’ 

35 FMSHRC at 515-16. 

 So began the Secretary’s effort to overlook the plain meaning of Section 110(k). As will 

be set forth below, the Secretary’s latest motion, too clever by half, is nothing more than its latest 

gambit, displaying the same, tired, recalcitrant behavior, all with the obvious purpose of 

continuing to avoid complying with section 110(k) of the Mine Act. 

Before examining the Secretary’s latest ploy, it is worth revisiting that there is nothing 

particularly difficult, nor onerous, required for the Secretary to comply with the Commission’s 

long-standing requirements for section 110(k) and the Secretary has himself repeatedly 

demonstrated that to be the case. In numerous other cases, examples of which were provided to 

the Secretary by the Court from his own submissions to the Commission, the Court reminded the 

Secretary how this is done in the appendix to its May 13, 2014 Order Denying Motion for 

Approval of Settlement Upon Secretary’s Motion for Reconsideration. The American Coal Co., 

36 FMSHRC 1489, 1503-1522 (May 2014) (ALJ). Because the Secretary seems to have 

forgotten how this is done, two examples from the appendix to the Court’s May 13, 2014 Order 

are repeated here. These examples are from the Secretary’s submission for approval of a 

settlement in another case, Sec. v. Brooks Run Mining, Docket No. WEVA 2010-468: 

Citation No. 8089450 was issued to the Respondent on October 20, 2009 and 

alleged a violation of 30 C.F.R. § 75.517 and 104(a) of the Act, 30 U.S.C. § 

814(a). The Secretary determined that the violation was reasonably likely to cause 

an injury; that an injury from the cited condition could reasonably be expected to 

result in lost workdays or restricted duty; that the violation was significant and 

substantial; that one person was affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a 

penalty of $499.00. The Respondent contends that the likelihood of injury and 

level of negligence alleged are excessive, and states that at hearing it would 

present evidence that the individual leads of the allegedly damaged cable were 

insulated, that there was no damage to the inner power or ground conductors and 

that the condition had existed for only a short time and would have been 

discovered during the next examination. In light of the contested evidence, the 

Secretary has agreed to modify the likelihood from “reasonably likely” to 

unlikely,” to modify the citation from “significant and substantial” to not 

significant and substantial,” to modify the negligence from “moderate” to “low,” 

and to reduce the penalty to $275.00. 

 

Citation No. 8089451 was issued to the Respondent on October 22, 2009 and 

alleged a violation of 30 C.F.R. § 75.220(a)(1) and 104(a) of the Act, 30 U.S.C. § 

814(a). The Secretary determined that the violation was reasonably likely to cause 

39 FMSHRC Page 1174
an injury; that an injury from the cited condition could reasonably be expected to 

result in lost workdays or restricted duty; that the violation was significant and 

substantial; that two persons were affected; and that the operator’s conduct in the

violation demonstrated a moderate degree of negligence. The Secretary assessed a 

penalty of $540.00. The Respondent contends that the likelihood of injury alleged 

is excessive, and states that at hearing it would present evidence that the roof in 

the cited entry was too high for the automated temporary roof support system to 

effectively control the roof, the roof conditions were good and the top was solid, 

stable and secure and that any roof sloughage was addressed by the installation of 

“pizza pans” and 6-foot torque tension bolts. The parties agree that this citation 

will remain as issued with no modifications, but in light of the contested evidence, 

the Secretary has agreed to reduce the penalty to $475.00. 

Unpublished Order dated Nov. 4, 2013; see 36 FMSHRC at 1519-20. 

The reader should take note that the justification for the penalty reductions in those two 

citations provided a factual basis to support them. 

More recent settlement motions before this Court demonstrate that, when the Secretary 

drops his mulish stance, he is quite able to provide the kind of facts the Commission needs in 

order to meet its statutory obligations under section 110(k). 

For example, in Sec. v. Triad Underground Mining LLC, LAKE 2017-0007, (“Triad”), 

the Secretary filed his Motion to Approve Settlement before the Court on January 26, 2017. That 

case involved a single citation, No. 9036792, for which a penalty reduction of 24 percent, from 

$3,300 to $2,500, was sought. 

In support of his Motion, despite some grammatical errors, the Secretary presented facts 

in dispute, stating: 

The Respondent has communicated plausible arguments as to why the gravity 

and/or negligence findings for this violation should be reduced. The Respondent 

would present evidence at hearing that, among other things, the examiner did not 

observe any hazards during his previous examination [sic] therefore no hazards 

were recorded in the Record Book. The accumulations referenced in the citation 

had occurred after the previous examination due to a coal spill. The hazard 

referenced in the inspection notes, accumulations of coal at the take up, had just 

occurred due to a spill and had not existed for two shifts [sic] therefore 

management could not have known. The Respondent contends that the negligence 

should be evaluated at “Moderate or Low” based on the mitigating circumstances 

provided. The Respondent contends that it is not reasonably likely that the 

accumulations of coal would [ ] result in a Lost Workdays injury. Also the 

Respondent provided evidence that this mine is in “Non-Producing Status”, has 

no production crew and none of the belts are currently in operation, and when 

verified through reviewing the Uniform Mine File of record at MSHA, this mine 

was placed in “Non-Producing Status” on 09/06/2016. The Respondent further 

39 FMSHRC Page 1175
argues that management was not aware of the condition and would have promptly 

corrected the condition as soon as management was made aware of the condition. 

The Respondent asserts that there was not a “Confluence of Factors”, no ignition 

source identified, along this belt that would cause and/or contribute to a belt fire. 

Also, the Respondent would argue that there was normally only one miner 

working and/or traveling within the cited area and would request the number of 

persons affected be modified from “2” to “1’. However, the respondent agrees to 

pay a reduced penalty and there will be no change to the violation as issued. The 

Secretary acknowledges that any or all of respondent’s arguments regarding 

gravity or negligence may be persuasive at a hearing on the merits and has agreed, 

based on evidence presented, to reduce the proposed penalty in consideration of 

the six statutory criteria in Section 110(i) of the Federal Mine Safety and Health 

Act of 1977 as amended by the MINER Act of 2006 (the Act). 

Motion at 4-5 (emphasis added). 

 The Court calls attention to four observations from the Secretary’s Motion in Triad. First, 

the Motion demonstrates that the Secretary is not confused; he knows full well what needs to be 

provided to the Commission when inclined to respect the command of section 110(k). Second, 

the Secretary recognizes that facts which are in dispute need to be identified. Third, it is neither 

difficult nor burdensome to gather such facts to explain the basis for the reduced penalty. Fourth, 

the Secretary recognizes that such disputed facts must be tied to the six statutory criteria in 

Section 110(i), a requirement the Commission has made plain.2

 As the Commission stated less 

than a year ago: 

 The requirements to provide factual support in the settlement proposal and for the 

Judge’s decision approving settlement to be supported by the record have been 

largely unchanged since the inception of the Commission’s procedural rules in 

1979. ... The Commission has recognized that standards for such factual support 

may be found in section 110(i). 

 

The American Coal Company, 38 FMSHRC 1972, 1981 (Aug. 2016) (“American Coal”) 

(emphasis added). 

Now, with a zombie-like persistence, the Secretary refuses yet again to comply with the 

Commission’s explicit direction, a direction the Secretary implicitly accepted by its recent 

decision to file, on March 16, 2017, his Motion to Withdraw its Petition with the Court of 

Appeals for the District of Columbia. Motion at 1 (emphasis added). 

 2

 While the Secretary asserted in American Coal that it is inappropriate for a judge to 

consider section 110(i) factors when considering whether to approve a proposed penalty 

settlement, the Commission directly stated, “We disagree.” The American Coal Company, 38 

FMSHRC 1972, 1981 (Aug. 2016). For instance, in Black Beauty, the Commission held that it 

was not error for the Judge to request factual support relating to the six criteria set forth in 

section 110(i) for her consideration of the penalties agreed to by the parties. Black Beauty Coal 

Company, 34 FMSHRC 1856, 1864 (Aug. 2012).

39 FMSHRC Page 1176
As with the Secretary’s original, insufficient, justification in February 2013 for its 30% 

across-the-board reduction, its new offering, while dressed-up, is just as empty as its original 

formulation because it again provides no facts to support the reduction sought. In the Court’s 

original rejection of the Secretary’s Motion, issued in February 2013, it noted the “impossibly 

small odds,” that each of the 32 citations warranted a 30% penalty reduction. 35 FMSHRC at 

515. As set forth below, the Secretary now offers a host of non-factual excuses, untethered to any 

specific citation. Further, there is no information associating any of the citations to the statutorily 

identified penalty factors. While wordier, the Secretary sets forth its new justification and again, 

against all odds, miraculously arrives at the same conclusion it served up four years ago — a 

30% across-the-board reduction. The translation of all this is, effectively, “we were right all 

along.” 

Here then, is the Secretary’s latest offering: 

Counsel for the Secretary reviewed the entire case, including all 32 citations, the 

inspectors' notes, the views of officials in the district office, and American Coal's 

position statement, as well as privileged information that would be improper or 

imprudent to share with the court and opposing counsel concerning the evidence 

developed in this case. Counsel concluded that there is substantial risk that the 

court could reduce the degree of negligence or gravity with respect to 14 of the 32 

citations. One additional citation runs the risk of vacatur because of a legal 

dispute between the operator and the Secretary regarding the applicability of the 

standard to the cited condition. The Secretary does not consider this case to be a 

well-chosen vehicle by which to litigate that legal dispute... If, after trial, the 

Secretary were to receive adverse decisions with respect to each of the citations 

that counsel believes to entail such risks- a worst-case outcome the Secretary does 

not believe would occur but is obligated to consider-the resulting penalty based on 

the Part 100 penalty tables would reflect an approximately 50% reduction from 

the penalties originally proposed by the Secretary. Accordingly, the Secretary has 

concluded that an across-the-board 30% reduction reflects an appropriate 

compromise. In deciding that such a compromise is appropriate, the Secretary has 

not given weight to the costs of going to trial as compared to the possible 

monetary results that would flow from securing a higher penalty total. He has, 

however, considered the fact that he is maximizing his prosecutorial impact in 

settling this case on appropriate terms and in litigating other cases in which 

settlement is not appropriate. The Secretary believes that maximizing his 

prosecutorial impact in such a manner serves a valid enforcement purpose. ... The 

Secretary considers the fact that the proposed settlement preserves all of the 

citations as written to be a significant advantage of the compromise. This fact will 

assist the Secretary in future enforcement efforts against this operator by ensuring 

that the paper record reflects the Secretary's views regarding the gravity and 

negligence of the operator's conduct. As the Commission is aware, such 

determinations can affect the proposed or assessed penalty in future proceedings, 

can affect whether future citations are classified as unwarrantable failures within 

the meaning of Section 104(d) of the Act, and can bear on how the citations are 

counted for purposes of determining whether the operator has demonstrated a 

39 FMSHRC Page 1177
pattern of violations within the meaning of Section 104(e) of the Act. ... Indeed, 

even if the Secretary were to substantially prevail at trial, and to obtain a

monetary recovery similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective than 

the settlement, in which all the citations are admitted and can constitute a basis for 

future enforcement actions. A resolution of this matter in which all violations are 

admitted is of significant value to the Secretary and advances the purposes of the 

Act. ... Based on the course of negotiations and counsel's experience, the 

Secretary does not believe that the mine operator would have agreed not to 

contest all of the violations without a reduction in the monetary amount of the 

penalty. Based on the calculations above of litigation risk, a 30 percent reduction 

is reasonable from the Secretary's perspective in exchange for a guarantee that 

none of the violations will be set aside or modified. ... Because the violations are 

all being admitted, an across-the-board reduction in penalties is reasonable. The 

value of an admitted violation from a future enforcement perspective does not 

depend on the size of the penalty so much as it does on the nature of the violation, 

including the alleged levels of negligence and gravity. There was no reason for 

the parties to negotiate different or variable reductions for each individual 

citation; doing so would have required sensitive discussions of the strengths and 

weaknesses of the Secretary's case, and given that American Coal has agreed to 

accept each citation as written, reallocation of the penalty amount on a citationby-citation basis would undermine the Secretary's ability to effectively and 

efficiently enforce the Act. 

Secretary’s March 30, 2017 Motion at 2-4. 

 The Secretary confuses logorrhea with providing factual support. They are not the 

same. The long-winded statement is easily translatable — the Secretary’s position has not 

changed; he continues to assert that settlements are within the Secretary’s unreviewable 

discretion. The essential problem with the Secretary’s latest motion is that it does not 

provide a penalty-factor related explanation to support the uniform 30%, reduction for 

each citation. 

Importantly, in the larger picture, if this formulation were to be accepted by the 

Court, apart from the failure to meet 110(k)’s language, every case the Secretary 

submitted for settlement hereafter could adopt essentially the same language presented 

here. In that way, though it failed to prevail before this Court, and then failed again

before the Commission and, effectively, failed for a third time, after he decided to 

withdraw his appeal before the United States Court of Appeals for the District of 

Columbia of those prior denials, this non-factually based language in his present motion, 

if accepted, would enable the Secretary to achieve his original goal of unfettered, 

unreviewable settlement offerings before the Commission. 

 

Nor can the non-factually based language be viewed as a one-off event. That the 

Secretary would now take this dressed-up formulation of non-compliance for future cases is not 

39 FMSHRC Page 1178
speculation. In other recent settlements the Secretary has been providing similar, uninformative, 

language, to wit: 

In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a better settlement, and the prospects of 

coming out better or worse after a trial. In deciding that such a compromise is 

appropriate, the Secretary has not given weight to the costs of going to trial as 

compared to the possible monetary results that would flow from securing a higher 

penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating 

other cases in which settlement is not appropriate. The Secretary believes that 

maximizing his prosecutorial impact in such a manner serves a valid enforcement 

purpose. Even if the Secretary were to substantially prevail at trial, and to obtain a 

monetary judgment similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective than 

the settlement, in which all alleged violations are resolved and violations that are 

accepted can be used as a basis for future enforcement actions. A resolution of 

this matter in which all violations are resolved is of significant value to the 

Secretary and advances the purposes of the Act. 

See, e.g., the settlement motions filed by the Secretary in Omega Highwall, VA 2016-

0008 (April 26, 2017), Edgar Minerals, SE 2017-0029 (April 27, 2017), and Greenbrier, 

WEVA 2017-0091 (April 26, 2017), each of which contain this verbiage. 

Meeting the requirement of Section 110(k) requires that civil penalties are to be assessed 

upon the Commission considering: 

the operator’s history of previous violations, the appropriateness of such penalty 

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

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

of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation.3

30 U.S.C. 820(i); American Coal at 1977. 

 The Commission, in its August 25, 2016 decision in this case, left no room for the 

apparent confusion or obstinate stance that the Secretary has renewed here. 

 3

 Included here for the sake of completeness, the remainder of section 110(i) then speaks 

to the distinct subject of the Secretary’s proposing civil penalties by providing: “In proposing 

civil penalties under this chapter, the Secretary may rely upon a summary review of the 

information available to him and shall not be required to make findings of fact concerning the 

above factors.” 

39 FMSHRC Page 1179
As the Commission stated: 

[t]he legislative history of section 110(k) describes the Congressional rationale 

behind the provision in great detail. The Senate Report states that the 

‘compromising of the amounts of penalties actually paid’ had reduced ‘the 

effectiveness of the civil penalty as an enforcement tool.’ S. Rep. No. 95-181, at 

44 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 

(1978) (“Legis. Hist.”). The Committee explained that in investigating the penalty 

collection system under the Federal Coal Mine Safety and Health Act of 1969, it 

learned ‘that to a great extent the compromising of assessed penalties [did] not 

come under public scrutiny,’ and that ‘[n]egotiations between operators and 

Conference Officers of MESA [MSHA’s predecessor] are not on the record.’ Id.

It noted that even after a petition for civil penalty had been filed, ‘settlement 

efforts between the operator and Solicitor [were] not on the record, and a 

settlement need not be approved by the Administrative Law Judge.’ Id. 

In fashioning a solution to this problem, Congress emphasized the need for 

transparency in the penalty process, stating that ‘the purpose of civil penalties, 

[that is,] convincing operators to comply with the Act’s requirements, is best 

served when the process by which these penalties are assessed and collected is

carried out in public,’ where miners, Congress, and other interested parties ‘can 

fully observe the process.’ Id. at 633. ‘To remedy this situation,’ section 110(k) 

‘provides that a penalty once proposed and contested before the Commission may 

not be compromised except with the approval of the Commission’ and that a 

‘penalty assessment which has become the final order of the Commission may not 

be compromised except with the approval of the Court.’ Id.

 

Congress explained that ‘[b]y imposing [the] requirements” of section 110(k), it 

“intend[ed] to assure that the abuses involved in the unwarranted lowering of 

penalties as a result of off-the-record negotiations are avoided.” Id. (emphasis 

added). Congress expressed its ‘inten[t] that the Commission and the Courts will 

assure the public interest is adequately protected before any reduction in 

penalties.’ Id. 

 

American Coal at 1975-76. 

 Anticipating the type of empty settlement the Secretary has presented yet again in this 

case, the Commission set forth its standard for reviewing proposed settlements of contested 

penalties. The Commission’s standard, based upon the language of section 110(k) and the 

legislative history for that section, is designed “‘in order to ensure that penalties serve as an 

effective enforcement tool, prevent abuse, and preserve the public interest.’ . . . The 

Commission’s consideration of proffered settlements has worked well for more than 35 years. Id.

at 1976 (quoting Black Beauty, 34 FMSHRC at 1862). 

 

39 FMSHRC Page 1180
Thus, the Commission summarized that it: 

must have information sufficient to carry out this responsibility. Consequently, 

through its procedural rules, the Commission has required parties to submit facts

supporting a penalty amount agreed to in settlement. In particular, Commission 

Procedural Rule 31 requires that a motion to approve penalty settlement must 

include for each violation the penalty proposed by the Secretary, the amount of 

the penalty agreed to in settlement, and facts in support of the penalty agreed to 

by the parties. 29 C.F.R. § 2700.31(b)(1). Rule 31 also requires that “[a]ny order 

by the Judge approving settlement shall set forth the reasons for approval and 

shall be supported by the record.” 29 C.F.R. § 2700.31(g). The requirements to 

provide factual support in the settlement proposal and for the Judge’s decision 

approving settlement to be supported by the record have been largely unchanged 

since the inception of the Commission’s procedural rules in 1979. See 44 Fed. 

Reg. 38,226, 38,230 (June 29, 1979). 

Id. at 1981 (emphasis added). 

 

Conclusion 

 Now, more than four years later, the Secretary continues to refuse to provide any facts to 

support the proposed settlement of 32 reduced penalties. The game is over. Given that Counsel 

for the Secretary has represented in its current motion that it has, “reviewed the entire case, 

including all 32 citations, the inspectors' notes, the views of officials in the district office, and 

American Coal's position statement, as well as privileged information that would be improper or 

imprudent to share with the court and opposing counsel concerning the evidence developed in 

this case,”4

 there can be no need for the delay resulting from depositions, nor is there any other 

impediment to proceeding immediately to hearing in this matter. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

 4 See, Sec’s Motion at 2 (emphasis added). 

39 FMSHRC Page 1181
Distribution: 

Suzanne F. Dunne, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Suite 844, Chicago, IL 60604 

Gary Broadbent, Esq., Allen McGilton, Murray Energy Corp., 46226 National Road, 

St. Clairsville, OH 43950 

Laura Karr and Arthur Traynor, United Mineworkers of America, 15354 Quantico Gateway Dr., Suite 

200, Triangle, VA 22172 

Daniel Kovalik, United Steelworkers, 5 Gateway Center, Pittsburgh, PA 15222 

39 FMSHRC Page 1182
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

May 18, 2017 

 

ORDER DENYING SUMMARY DECISION

Before: Judge McCarthy 

 This remanded case is before me upon a Petition for Assessment of a Civil Penalty under 

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

Mine Act” or “the Act”). This matter is set for hearing on May 23-24, 2017 in Roanoke, 

Virginia. Currently pending before the Court are Respondent’s Amended Motion for Summary 

Decision, the Secretary’s Motion to Correct the Record in Partial Response to the Respondent’s 

Motion for Summary Decision, and the Secretary’s Response to [Respondent’s] Motion for 

Summary Decision Stating Contested Facts. 

I. Statement of the Case 

 This matter arises out of a non-fatal fall of materials accident that occurred in operator 

Roanoke Cement Company’s (“Roanoke Cement”) pre-heat tower on January 8, 2013. Roanoke 

Cement hired LVR, Inc. (“LVR”) to conduct annual maintenance on the tower. LVR hired 

Sunbelt Rentals, Inc. (“Sunbelt”) to erect scaffolding inside the tower so that LVR could perform 

the maintenance. On January 8, 2013, as Sunbelt was erecting scaffolding at the sixth level inside 

the tower, Sunbelt’s employee Brian Tyler was struck by unidentified material that fell from 

above and knocked him unconscious. MSHA inspector David Nichols subsequently issued 

citations to Roanoke Cement, LVR, and Sunbelt for violations of 30 C.F.R. § 56.18002(a).1

 Citation No. 8723677 was issued to Sunbelt and assigned to Docket No. VA 2013-0291. 

Citation No. 8723676 was issued to LVR and was assigned to Docket No. VA 2013-0275. 

 1

Section 56.18002(a) provides that 

A competent person designated by the operator shall examine each working place 

at least once each shift for conditions which may adversely affect safety or health.

The operator shall promptly initiate appropriate action to correct such conditions. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

SUNBELT RENTALS, INC., 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2013-0291 

A.C. No. 44-00068-316647 

Mine: Roanoke Cement Company 

39 FMSHRC Page 1183
Citation No. 8723675 was issued to Roanoke Cement and assigned to Docket No. VA 2013-

0276. All three dockets were set for hearing on October 21, 2013. Prior to the hearing, the 

Secretary filed a Motion for Partial Summary Decision, and all three Respondents filed CrossMotions for Summary Decision. The Secretary’s motion requested findings that (1) the failure to 

perform a workplace examination “adequate’ to discover latent defects is a violation of section 

56.18002(a), and (2) the mine operator and its contractors have a duty to either perform an 

adequate workplace examination or ensure that one is performed. Sunbelt Rentals, Inc., et al., 

35 FMSHRC 3208, 3209 (Sept. 2013) (ALJ). I found that no genuine issues of material fact 

remained, and granted the Respondents’ Cross-Motions for Summary Decision on the grounds 

that section 56.18002(a) contained no adequacy requirements and Sunbelt’s shift examination of 

the pre-heat tower therefore satisfied the requirements of section 56.18002(a). Id. at 3216. I 

found in the alternative that “the Respondents did not have fair notice of the Secretary’s 

interpretation that the cited regulation included an adequacy requirement.” Id. at 3215. 

 The Secretary appealed, and the Commission granted the Secretary’s Petition for 

Discretionary Review.2

 The Commission determined that section 56.18002(a) contains an 

adequacy requirement, vacated my summary decision, and remanded all three dockets to me for 

to determine whether “the workplace examination conducted by [Sunbelt] met the requirements 

of the standard.” Sunbelt Rentals, Inc., et al., 38 FMSHRC 1619 (July 2016).3 

II. Legal Principles and Analysis 

Commission Rule 67 sets forth the guidelines for granting summary decision. A motion 

for summary decision shall be granted only if the entire record, including the pleadings, 

depositions, answers to interrogatories, admissions, and affidavits, shows (1) that there is no 

genuine issue as to any material fact; and (2) that the moving party is entitled to summary 

decision as a matter of law. 29 C.F.R. § 2700.67(b). A motion shall be accompanied by a 

memorandum of points and authorities and a statement of material facts specifying each material 

fact as to which the party contends there is no genuine issue, and supported by reference to 

accompanying affidavits or other verified documents. 29 C.F.R. § 2700.67(c). An opposition 

shall include a memorandum of points and authorities and may be supported by affidavits or 

other verified documents. The opposition shall also include a separate concise statement of each 

genuine issue of material fact supported by reference to any accompanying affidavits or other 

verified documents. Material facts identified as not in issue by the moving party shall be deemed 

admitted unless controverted by the statement in opposition. If a party does not respond in 

opposition, summary decision, if appropriate, shall be entered for the moving party. 

29 C.F.R. § 2700.67(d). 

 2

 Despite my alternative basis for dismissal on the absence of fair notice grounds, I note 

that the Secretary advanced his current interpretation of section 56.18002(a)’s adequacy 

requirement for the first time in oral argument on appeal before the Commission. Tr. for Oral 

Argument at 34-36. In my view, this was inappropriate and the issue is preserved for judicial 

review. 

3

 Docket No. VA 2013-0275 was disposed in my Decision Approving Settlement on 

November 30, 2016. Docket No. VA 2013-0276 was disposed in my Decision Approving 

Settlement on January 5, 2017. 

39 FMSHRC Page 1184
 Applying these rules, the Commission has long recognized that summary decision is an 

extraordinary procedure analogous to Rule 56 of the Federal Rules of Civil Procedure, under 

which “the Supreme Court has indicated that summary judgment is authorized only ‘upon proper 

showings of the lack of a genuine, triable issue of material fact.’” Energy West Mining Co., 

16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 

(Nov. 1981) and Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)); see also Lakeview Rock 

Prods., Inc., 33 FMSHRC 2985, 2987-88 (Dec. 2011) (reiterating the Commission's summary 

decision rules). In reviewing a record on summary decision, a judge must evaluate the evidence 

in the light most favorable to the party opposing the motion. Hanson Aggregates New York, Inc., 

29 FMSHRC 4, 9 (Jan. 2007); see also Poller v. Columbia Broadcasting Sys., Inc., 

368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

 Respondent’s initial Motion for Summary Decision alleged that the Secretary failed to 

respond to Respondent’s Third Set of Interrogatories, Second Set of Requests for Admission, and 

Second Set of Requests for Production, which Respondent served on the Secretary’s solicitor on 

January 25, 2017. In response to Respondent’s motion, the Secretary filed his Motion to Correct 

the Record and included copies of his timely responses to Respondent’s discovery requests. 

Resp’t’s Mot. for Summ. Decision, at 2-3; Sec’y’s Mot. to Correct, at 1. Respondent then filed 

an Amended Motion for Summary Decision, arguing that the Secretary’s discovery responses 

show that no genuine issues of material fact remain. Resp’t’s Amended Mot. for Summ. 

Decision, at 1. The Secretary also filed a Response to [Respondent’s] Amended Motion for 

Summary Decision, Stating Contested Facts on April 14, 2017. On April 14, the Respondent 

filed a final Response to [the] Secretary’s Motion to Correct the Record in Partial Response to 

the Motion for Summary Decision. 

 As demonstrated by the parties’ competing motions, and in light of the fact that the 

Commission had decided that despite my alternative basis for dismissal on fair notice grounds, it 

is permissible for the Secretary to advance his new interpretation of section 56.18002(a) for the 

first time during oral argument on his Petition for Discretionary Review, I find that genuine 

issues of material fact still remain regarding the adequacy of Sunbelt’s January 8, 2013 

workplace examination and whether the seventh level of the preheat tower constituted a 

“working place” within the meaning of section 56.18002(a). 

III. Order 

WHEREFORE, Respondent’s Amended Motion for Summary Decision is DENIED. I 

reserve judgment on the Secretary’s Motion to Correct the Record until hearing, at which time 

the Secretary may proffer his discovery responses for entry into the record. This docket will 

proceed to hearing as scheduled on May 23-24, 2015 in Roanoke, Virginia. 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

39 FMSHRC Page 1185
Distribution: 

 

Willow E. Fort, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 618 Church Street, Ste. 230, 

Nashville, TN 37219 

Travis W. Vance, Fisher & Phillips LLP227 West Trade Street, Suite 2020, Charlotte, NC 28202 

/ccc 

39 FMSHRC Page 1186
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

PHONE: (202) 434-9933 | FAX: (202) 434-9949

 

May 19, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. LAKE 2011-0013 

 Petitioner, A.C. No. 11-02752-232235 

v. 

 

THE AMERICAN COAL COMPANY, Mine: New Era Mine 

 

ORDER DENYING SECRETARY’S MOTION TO CERTIFY MAY 2, 2017 ORDER FOR 

INTERLOCUTORY REVIEW 

Before: Judge Moran 

 Though hard to believe, the Secretary of Labor and his present counsel, whether 

motivated through deafness or defiance, is back, filing another motion for interlocutory review, 

but asking, essentially, the same questions.1 The Commission has already answered those 

questions. For the reader who may be confused, this is not a new case. It is the same case, now 

more than four years old, with the Secretary presently making another run, through the same 

vehicle as before — interlocutory review — at not complying with this Court’s decision and the 

Commission’s affirmance of that decision, all with the purpose of emasculating the 

Commission’s Congressionally-delegated statutory responsibility under section 110(k) of the 

Mine Act. The United Mine Workers of America, Intervenors in this case, have also weighed in 

on the Secretary’s Motion, voicing strong opposition to it (“UMWA Response in Opposition”). 

For the reasons which follow, the Secretary’s Amended Motion to Certify May 2, 2017 Order for 

Interlocutory Review (“Motion”) is DENIED. The hearing in this matter remains as 

scheduled, to commence on Monday, June 19, 2017. 

 When this Court rejected the Secretary’s latest gambit, in its May 2, 2017 Order Denying 

Settlement Motion (“Order”), as set forth below in Appendix I, it went to some lengths to expose 

the emptiness of the Secretary’s present settlement. In this Motion the Secretary now, yet again, 

seeks the Commission’s repeated review and by that step to unnecessarily draw upon the 

Commission’s resources regarding a subject about which the Commission has already, patiently 

and definitively, expressed its view. 

 1

 The Secretary filed his motion on May 8, 2017. Two days later, on May 10, 2017, he 

filed a “Supplemental Motion” for interlocutory review, recasting its questions. The 

Supplemental Motion changes nothing, both forms of the motion are rejected. 

39 FMSHRC Page 1187
 Following the Court’s Order, a conference call was held for the purpose of setting this 

matter for a hearing.2 A few observations about that conference call are revealing. It was the 

Respondent’s counsel who inquired whether it could provide the facts to support the motion, and 

asked for guidance from the Court as to the type of facts that would pass muster. The Court 

advised the parties that both the Court and the Commission have already made plain the 

information required for settlement motions. Curiously, the Secretary was entirely silent on that 

issue, with not a word offered that he too would like to supply facts in support of the motion. The 

Secretary’s silence during the call clearly displayed that he has no intention of providing facts to 

the Commission. Both the Court’s May 2, 2017 Order, and its many other prior Orders where 

settlements have been accepted, and on occasion denied, provide clear guidance to anyone who 

is genuinely interested in compliance. 

 There were other problems revealed with the one-sided interest in offering an adequate 

basis in support of a settlement. Counsel for the Respondent did not seem to appreciate that a 

one-size-fits-all 30% reduction is not likely to be satisfactory, because each violation is factspecific.3

 That is why the Commission repeatedly told the Secretary in its August 25, 2016 

Decision that facts must be provided. Therefore, even if plausible facts were presented and the 

Secretary admitted that those facts presented genuine disputes, it would be highly questionable 

if, through some magic, each citation ended up with an odds-defying 30% reduction. 

Compounding that problem, if the percentage reduction would be the same for each of the 32 

citations, is the fact that at least 5 (five) of the citations were specially assessed. 

 While the Court appreciates the cooperative spirit advanced by the Respondent, there is a 

second problem that the Court has encountered in some settlements and needs to be mentioned. 

These have occurred on occasion where a cooperative Respondent has provided asserted facts in 

support of a given reduction but the Secretary made no comment whatsoever. As with the 

proverb “one hand won’t clap,” a settlement must express from the Secretary that the 

Respondent’s assertions present legitimate questions of fact which can only be resolved through 

the hearing process. Under such circumstances, legitimate disputes of fact are usually sufficient 

to support a given proposed reduction.4

 

 2

 As announced during the call, that conference call was recorded by the Court. 

3

 Nor is this matter a “global settlement,” where different considerations may come into 

play. 

4

 In those instances when the Court has rejected settlements because only one side, the 

mine operator, has offered facts in dispute and the Secretary has remained mute, in addition to 

requiring the Secretary’s voice on the facts advanced by the operator, the Court has suggested, in 

the spirit of seeking legitimate settlements, that the Secretary at least announce to the Court that 

it has apprised the issuing inspector of the facts asserted by the Respondent, as the inspector is 

the only government eyewitness to the issued citation or order. Note that this requires no 

disclosure of privileged information, nor the substance of such communications between the 

Secretary’s attorney and the issuing inspector, but only confirms that, acting in good faith, the 

Secretary has disclosed the operator’s version of the attendant facts to the inspector. Though this 

would seem obvious as part of due diligence, the Secretary has rarely cooperated with the 

Court’s request for such assurance. 

39 FMSHRC Page 1188
A review of the Secretary’s Motion 

Having set the stage, so to speak, of the background for this matter, here is the Court’s 

annotated version of the Secretary’s latest motion. The quoted portions in the following 

annotated version all are from the Secretary’s March 30, 2017 Motion at 2-4. A non-annotated 

version appears in Appendix II of this Order. Language taken from the Motion is in quotations, 

with bold text and italics added, as deemed appropriate, by the Court. The Court’s annotations 

follow each quoted portion from the Secretary’s Motion and they are in italics. 

Counsel for the Secretary reviewed the entire case, including all 32 citations, 

the inspectors' notes, the views of officials in the district office, and American 

Coal's position statement, as well as privileged information that would be 

improper or imprudent to share with the court and opposing counsel concerning 

the evidence developed in this case. 

The Court would note that most of this would be standard protocol in any case — 

reviewing each citation and the inspector’s notes and the position of the Respondent would seem 

to be minimalist activity. It is unclear what role “the views of officials in the district office” 

would have and the Court is told neither who those individuals were, the nature of their views, 

nor any basis for concluding that a 30% reduction would be appropriate for each of the 32 

citations. The Secretary then announces that information, identified as “privileged,” about the 

evidence developed in the case would be improper or imprudent to disclose. 

“Counsel concluded that there is substantial risk that the court could reduce the 

degree of negligence or gravity with respect to 14 of the 32 citations.” 

Based upon “information,” about which the Commission is completely kept in the dark, 

the Secretary then announces that he concludes that there is “substantial risk” that the court 

“could” reduce the degree of negligence or gravity with respect to 14 of the 32 citations. How 

that speculation evolves into a 30% across the board reduction is left for the Commission to 

somehow divine. 

“One additional citation runs the risk of vacatur because of a legal dispute between the 

operator and the Secretary regarding the applicability of the standard to the cited condition. The 

Secretary does not consider this case to be a well-chosen vehicle by which to litigate that legal 

dispute.” 

The Secretary, while not identifying which citation runs the claimed risk of vacatur, 

apparently feels that, like each of the other 32 citations, such a risk qualifies this citation for a 

30% reduction. That the Secretary suggests this citation may not be the best case to test the 

citation’s applicability is odd, because in more than a few cases before this Court, the Secretary 

has routinely exercised his option to vacate a given citation. As with all of the foregoing, no facts 

are presented by the Secretary. 

“If, after trial, the Secretary were to receive adverse decisions with respect to 

each of the citations that counsel believes to entail such risks- a worst-case 

outcome the Secretary does not believe would occur but is obligated to considerthe resulting penalty based on the Part 100 penalty tables would reflect an 

39 FMSHRC Page 1189
approximately 50% reduction from the penalties originally proposed by the 

Secretary. Accordingly, the Secretary has concluded that an across-the-board 30% 

reduction reflects an appropriate compromise.” 

Here, the Secretary truly brings out his crystal ball, advising that, while he does not 

believe that his fears would occur, if they did occur, he predicts that he would suffer a 50% 

reduction in the penalties. On the basis of the fears he does not himself believe in, he then asserts 

that a 30% reduction makes sense. As with all of the foregoing, no facts are presented by the 

Secretary. 

In deciding that such a compromise is appropriate, the Secretary has not given 

weight to the costs of going to trial as compared to the possible monetary results 

that would flow from securing a higher penalty total. He has, however, 

considered the fact that he is maximizing his prosecutorial impact in settling 

this case on appropriate terms and in litigating other cases in which 

settlement is not appropriate. 

This part of the Motion is the Secretary’s most overt return to its stance of four years 

ago; translated it plainly means that the determination of a settled penalty amount is completely 

within its sole discretion. How that fits within section 110(k) is, as before, ignored by the 

Secretary. 

“The Secretary believes that maximizing his prosecutorial impact in such a manner 

serves a valid enforcement purpose.” 

As with the justification presented, next above, this is an encore assertion of the 

Secretary’s claim that he has the sole power over settlement terms; the role of the Commission is 

to genuflect to the Secretary. The Secretary’s interpretation effectively revokes Congress’ 

inclusion of section 110(k) in the Mine Act. 

The Secretary considers the fact that the proposed settlement preserves all of 

the citations as written to be a significant advantage of the compromise. This 

fact will assist the Secretary in future enforcement efforts against this operator by 

ensuring that the paper record reflects the Secretary's views regarding the 

gravity and negligence of the operator's conduct. 

If this basis were to be accepted, the Commission would be required to accept any 

settlement with such terms. The Secretary’s position would also negate the express language of 

section 110(k), which addresses “Compromise, mitigation, and settlement of penalty,” and 

provides, in relevant part, that “[no] proposed penalty which has been contested before the 

Commission under section 815(a) of this title shall be compromised, mitigated, or settled except 

with the approval of the Commission.” 30 U.S.C. § 820(k) (emphasis added). The further remark 

that the Secretary will somehow be assisted “in future enforcement efforts against this operator 

by ensuring that the paper record reflects the Secretary's views regarding the gravity and

39 FMSHRC Page 1190
negligence of the operator's conduct,” can only be described as pure blather.5

 The Secretary’s 

“views regarding the gravity and negligence of the operator's conduct” do not go beyond these 

particular citations – they are not translatable to future citations as the nature of those criteria 

are determined vis-à-vis those matters. In short, there is no carry over. 

As the Commission is aware, such determinations can affect the proposed or 

assessed penalty in future proceedings, can affect whether future citations are 

classified as unwarrantable failures within the meaning of Section 104(d) of the 

Act, and can bear on how the citations are counted for purposes of determining 

whether the operator has demonstrated a pattern of violations within the meaning 

of Section 104(e) of the Act. 

There is no representation that, among the 32 citations, a section 104(d) chain has been 

triggered, nor is there any assertion that a pattern of violations is in the offing. Further, such 

speculations do not excuse the Secretary from complying with section 110(k) as those provisions 

are not entwined, but operate independently of one another. 

Indeed, even if the Secretary were to substantially prevail at trial, and to obtain a 

monetary recovery similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective 

than the settlement, in which all the citations are admitted and can constitute a 

basis for future enforcement actions. A resolution of this matter in which all 

violations are admitted is of significant value to the Secretary and advances the 

purposes of the Act... Based on the course of negotiations and counsel's 

experience, the Secretary does not believe that the mine operator would have 

agreed not to contest all of the violations without a reduction in the monetary 

amount of the penalty. 

As noted before, if the Secretary’s expression was deemed sufficient here, then in future 

cases, the Commission could not logically assert any section 110(k) considerations where all 

violations were admitted. Such a result would effectively neuter the Commission’s review 

authority under section 110(k). Beyond ignoring the plain language of that section, the 

Commission could not reasonably object to a higher percentage reduction. Accordingly, if the 

Secretary’s position were adopted, a 40 or 50 percent reduction, or more, would also fit within 

the Secretary’s authority. 

“Based on the calculations above of litigation risk, a 30 percent reduction is reasonable 

from the Secretary's perspective in exchange for a guarantee that none of the violations will be 

set aside or modified.... Because the violations are all being admitted, an across-the-board 

reduction in penalties is reasonable.” 

By this reasoning, all dockets for which all violations are admitted, could form the 

justification for a 30% reduction. But that is not all. As just mentioned, applying the same 

 5

 “Blather” is defined as talking long-windedly without making very much sense. As 

expressed by Merriam-Webster it is “voluble nonsensical or inconsequential talk or writing.” 

“Blather,” Merriam-Webster Online Dictionary (May 11, 2017), http://www.merriamwebster.com/dictionary/blather. 

39 FMSHRC Page 1191
reasoning, if the principle were to be accepted, it could be applied to justify any other acrossthe-board percentage figure that the Secretary tossed out. 

The value of an admitted violation from a future enforcement perspective does not 

depend on the size of the penalty so much as it does on the nature of the violation, 

including the alleged levels of negligence and gravity. There was no reason for 

the parties to negotiate different or variable reductions for each individual 

citation; doing so would have required sensitive discussions of the strengths 

and weaknesses of the Secretary's case, and given that American Coal has 

agreed to accept each citation as written, reallocation of the penalty amount 

on a citation-by-citation basis would undermine the Secretary's ability to 

effectively and efficiently enforce the Act.

This statement simply underscores the transparent nature of the Secretary position — it is 

for the Secretary alone to reach settlements and facts in support of such matters need not be 

disclosed to the Commission. Clearly, under the Secretary’s interpretation, section 110(k) would 

be an empty provision. 

In summary, under the Secretary’s, now tedious, view, it is entirely within his prerogative 

to decide terms of settlement. It is not an understatement to say that the Commission would have 

no role under this approach except to submissively accept the terms presented by the Secretary. 

For its part, the United Mine Workers of America, in its Response in Opposition, has 

asserted that, as the question has already been considered and decided, the matter should not be 

certified for interlocutory review since a redundant review cannot materially advance the final 

disposition of the proceeding. UMWA Response in Opposition at 1. Noting that in its August 25, 

2016 decision “the Commission held . . . in this case that ‘Commission Procedural Rule 31 

requires that a motion to approve penalty settlement must include for each violation the penalty 

proposed by the Secretary, the amount of the penalty agreed to in settlement, and facts in support 

of the penalty agreed to by the parties,’” the UMWA maintains that the law of the case applies. 

Id. at 2 (citing The American Coal Company et al., 38 FMSHRC 1972, 1981 (2016) (applying 29 

C.F.R. § 2700.31(b)(1)) (emphasis in original). The Court agrees. 

Thus, we have the quite peculiar situation where the Respondent mine operator and the 

United Mine Workers of America want to support the Commission’s clear decisions regarding 

the required information for settlements, while the Secretary of Labor, whom one would expect 

to be in the vanguard on this issue, instead seeks to avoid the plain words of section 110(k) yet 

again. 

39 FMSHRC Page 1192
Analysis of the Secretary’s Motion to Certify this Court’s May 2, 2017 Order for 

Interlocutory Review 

 The Secretary’s Motion for Interlocutory Review6 seeks certification of the following 

questions: 

1. Whether the Commission erred in rejecting the Secretary's interpretation of the 

term "approval" in Section 110(k) of the Mine Act (30 U.S.C. § 820(k)), and 

instead adopting a standard of review that fails to recognize that the Secretary is 

exercising his statutory enforcement discretion when he proposes a settlement 

agreement? 

2. Whether the Commission erred in adopting a standard of review that 

presumptively disfavors across-the-board settlements of multiple penalties. 

Motion at 1. 

These questions may be addressed summarily. The Commission has already definitively 

answered the first question in its August 25, 2016 decision. The Commission did not adopt a 

standard of review that presumptively disfavored across-the-board settlements. Instead, it held 

that in this case no facts supported the across-the-board 30 % reduction. As mentioned in 

footnote 6, the Secretary’s Supplemental Motion does not change the Court’s reaction. 

The Secretary’s Motion, after asserting that the matter involves a controlling question of 

law, defines a “controlling” question as one which if reversed on interlocutory appeal “might 

save time for the [trial] court, and time and expense for the litigants.” Motion at 2 (internal 

citation omitted). Given the more than four year history challenging the same issue — the 

authority of the Commission in approving settlements and the Commission’s decision on that 

issue — the save time and expense argument is hollow. The Secretary also asserts that “there can 

be no doubt that immediate review of the questions presented could ‘materially advance the final 

disposition of the proceeding’ because a decision in the Secretary's favor would avoid litigation 

and adjudication on the merits by resolving the matter with an approved settlement.” Motion at 

3. The opposite of that assertion is true — the matter has already been litigated and decided 

before the Commission and the hearing date is imminent, commencing on June 19th. 

 6

 As mentioned at the outset, two days after filing its Motion for Interlocutory Review, 

the Secretary filed a second “Supplemental Motion.” The essence of the Supplemental Motion 

was to reframe the questions, but the result is the same — the Secretary simply does not want to 

comply with the Commission’s decisions on settlements and section 110(k). The Secretary’s 

additional questions are, “Whether the ALJ failed to adequately consider whether the additional 

facts provided by the Secretary on remand in support of the settlement motion satisfy the legal 

standard established by the Commission for evaluating proposed settlement agreements under 

Section 110(k) and whether the additional facts provided by the Secretary on remand in support 

of the settlement motion satisfy the legal standard established by the Commission for evaluating 

proposed settlement agreements under Section 110(k).” Supplemental Motion at 1. 

39 FMSHRC Page 1193
Conclusion 

The Commission has spoken clearly about settlements and section 110(k). When the 

Commission stated that settlements require “facts,” as was evident to nearly everyone, they 

meant facts about the alleged violations. In contrast, the Secretary’s notion of facts encompasses 

his assertions expressing why he doesn’t want or need to provide facts about the violations. In 

the Court’s view, by taking that tactic, the Secretary has basically fabricated issues for 

interlocutory review in its unceasing effort to circumvent the Commission’s responsibilities 

under section 110(k). Accordingly, pursuant to 29 C.F.R. § 2700.76(a)(1)(i), titled “Interlocutory 

review,” the Court DENIES the Secretary’s Motion for Interlocutory Review because the 

questions of law raised in the Motion have been decided by the Commission and further 

immediate review will not materially advance the final disposition of the proceeding. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

39 FMSHRC Page 1194
Appendix I 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

PHONE: (202) 434-9933 | FAX: (202) 434-9949

 

May 2, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. LAKE 2011-0013 

 Petitioner, A.C. No. 11-02752-232235 

v. 

 

THE AMERICAN COAL COMPANY, Mine: New Era Mine 

 

ORDER DENYING SETTLEMENT MOTION 

Before: Judge Moran 

 This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(2012) (“Mine Act” or “Act”). The Secretary has filed a “new” motion to approve settlement, but 

it is new only in the sense of its filing date. The Secretary continues to resist complying with the 

Commission’s requirements for settlements. Accordingly, for the reasons which follow, the 

Secretary’s motion is DENIED and the parties are ORDERED to participate in a conference call 

with the Court on Friday May 5, 2017 at 12:00 p.m. EDT for the purpose of setting a hearing 

date for this docket, which shall be held promptly.7 

 This matter now has a very long history. Over four years ago the Secretary embarked on 

its goal of emasculating section 110(k) of the Mine Act. The Court in its Decision Denying 

Settlement Motion, issued February 11, 2013, noted that: 

[t]he Motion seeks an across-the-board reduction of 30 (thirty) percent for each of 

the 32 citations involved. That, in itself, is a red flag. The idea that every one of

32 citations could warrant a 30% reduction demonstrates, by that fact alone, that 

the reductions were more in the nature of yard sale, rather than any individualized 

review meriting, by some impossibly small odds, that each just happened to have 

earned such an implausibly uniform reduction. 

The American Coal Co., 35 FMSHRC 515, 515 (Feb. 2013) (ALJ) (emphasis omitted). 

 7

 The call-in number will be provided in a separate email to the parties. 

39 FMSHRC Page 1195
In denying the motion, the Court observed that: 

[t]he entirety of the justification provided: ‘After further review of the evidence, 

the Secretary has determined that a reduced penalty is appropriate in light of the 

parties’ interest in settling this matter amicably without further litigation. In 

recognition of the nature of the citations at issue, and the uncertainties of 

litigation, the parties wish to settle the matter with a 30% reduction in the total 

assessed penalty with no changes in gravity or negligence for any of the citations 

at issue.’ If this were a satisfactory justification, then every case would warrant a 

30% reduction to avoid the ‘uncertainties of litigation.’ 

35 FMSHRC at 515-16. 

 So began the Secretary’s effort to overlook the plain meaning of Section 110(k). As will 

be set forth below, the Secretary’s latest motion, too clever by half, is nothing more than its latest 

gambit, displaying the same, tired, recalcitrant behavior, all with the obvious purpose of 

continuing to avoid complying with section 110(k) of the Mine Act. 

Before examining the Secretary’s latest ploy, it is worth revisiting that there is nothing 

particularly difficult, or onerous, required for the Secretary to comply with the Commission’s 

long-standing requirements for section 110(k) and the Secretary has himself repeatedly 

demonstrated that to be the case. In numerous other cases, examples of which were provided to 

the Secretary by the Court from his own submissions to the Commission, the Court reminded the 

Secretary how this is done in the appendix to its May 13, 2014 Order Denying Motion for 

Approval of Settlement Upon Secretary’s Motion for Reconsideration. The American Coal Co., 

36 FMSHRC 1489, 1503-1522 (May 2014) (ALJ). Because the Secretary seems to have 

forgotten how this is done, two examples from the appendix to the Court’s May 13, 2014 Order 

are repeated here. These examples are from the Secretary’s submission for approval of a 

settlement in another case, Sec. v. Brooks Run Mining, Docket No. WEVA 2010-468: 

Citation No. 8089450 was issued to the Respondent on October 20, 2009 and 

alleged a violation of 30 C.F.R. § 75.517 and 104(a) of the Act, 30 U.S.C. § 

814(a). The Secretary determined that the violation was reasonably likely to cause 

an injury; that an injury from the cited condition could reasonably be expected to 

result in lost workdays or restricted duty; that the violation was significant and 

substantial; that one person was affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a 

penalty of $499.00. The Respondent contends that the likelihood of injury and 

level of negligence alleged are excessive, and states that at hearing it would 

present evidence that the individual leads of the allegedly damaged cable were 

insulated, that there was no damage to the inner power or ground conductors and 

that the condition had existed for only a short time and would have been 

discovered during the next examination. In light of the contested evidence, the 

Secretary has agreed to modify the likelihood from “reasonably likely” to 

unlikely,” to modify the citation from “significant and substantial” to not 

39 FMSHRC Page 1196
significant and substantial,” to modify the negligence from “moderate” to “low,” 

and to reduce the penalty to $275.00. 

 

Citation No. 8089451 was issued to the Respondent on October 22, 2009 and 

alleged a violation of 30 C.F.R. § 75.220(a)(1) and 104(a) of the Act, 30 U.S.C. § 

814(a). The Secretary determined that the violation was reasonably likely to cause 

an injury; that an injury from the cited condition could reasonably be expected to 

result in lost workdays or restricted duty; that the violation was significant and 

substantial; that two persons were affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a 

penalty of $540.00. The Respondent contends that the likelihood of injury alleged 

is excessive, and states that at hearing it would present evidence that the roof in 

the cited entry was too high for the automated temporary roof support system to 

effectively control the roof, the roof conditions were good and the top was solid, 

stable and secure and that any roof sloughage was addressed by the installation of 

“pizza pans” and 6-foot torque tension bolts. The parties agree that this citation 

will remain as issued with no modifications, but in light of the contested evidence, 

the Secretary has agreed to reduce the penalty to $475.00. 

Unpublished Order dated Nov. 4, 2013; see 36 FMSHRC at 1519-20. 

The reader should take note that the justification for the penalty reductions in those two 

citations provided a factual basis to support them. 

More recent settlement motions before this Court demonstrate that, when the Secretary 

drops his mulish stance, he is quite able to provide the kind of facts the Commission needs in 

order to meet its statutory obligations under section 110(k). 

For example, in Sec. v. Triad Underground Mining LLC, LAKE 2017-0007, (“Triad”), 

the Secretary filed his Motion to Approve Settlement before the Court on January 26, 2017. That 

case involved a single citation, No. 9036792, for which a penalty reduction of 24 percent, from 

$3,300 to $2,500, was sought. 

In support of his Motion, despite some grammatical errors, the Secretary presented facts 

in dispute, stating: 

The Respondent has communicated plausible arguments as to why the gravity 

and/or negligence findings for this violation should be reduced. The Respondent 

would present evidence at hearing that, among other things, the examiner did not 

observe any hazards during his previous examination [sic] therefore no hazards 

were recorded in the Record Book. The accumulations referenced in the citation 

had occurred after the previous examination due to a coal spill. The hazard 

referenced in the inspection notes, accumulations of coal at the take up, had just 

occurred due to a spill and had not existed for two shifts [sic] therefore 

management could not have known. The Respondent contends that the negligence 

should be evaluated at “Moderate or Low” based on the mitigating circumstances 

39 FMSHRC Page 1197
provided. The Respondent contends that it is not reasonably likely that the 

accumulations of coal would [ ] result in a Lost Workdays injury. Also the 

Respondent provided evidence that this mine is in “Non-Producing Status”, has 

no production crew and none of the belts are currently in operation, and when 

verified through reviewing the Uniform Mine File of record at MSHA, this mine 

was placed in “Non-Producing Status” on 09/06/2016. The Respondent further 

argues that management was not aware of the condition and would have promptly 

corrected the condition as soon as management was made aware of the condition. 

The Respondent asserts that there was not a “Confluence of Factors”, no ignition 

source identified, along this belt that would cause and/or contribute to a belt fire. 

Also, the Respondent would argue that there was normally only one miner 

working and/or traveling within the cited area and would request the number of 

persons affected be modified from “2” to “1’. However, the respondent agrees to 

pay a reduced penalty and there will be no change to the violation as issued. The 

Secretary acknowledges that any or all of respondent’s arguments regarding 

gravity or negligence may be persuasive at a hearing on the merits and has agreed, 

based on evidence presented, to reduce the proposed penalty in consideration of 

the six statutory criteria in Section 110(i) of the Federal Mine Safety and Health 

Act of 1977 as amended by the MINER Act of 2006 (the Act). 

Motion at 4-5 (emphasis added). 

 The Court calls attention to four observations from the Secretary’s Motion in Triad. First, 

the Motion demonstrates that the Secretary is not confused; he knows full well what needs to be 

provided to the Commission when inclined to respect the command of section 110(k). Second, 

the Secretary recognizes that facts which are in dispute need to be identified. Third, it is neither 

difficult nor burdensome to gather such facts to explain the basis for the reduced penalty. Fourth, 

the Secretary recognizes that such disputed facts must be tied to the six statutory criteria in 

Section 110(i), a requirement the Commission has made plain.8

 As the Commission stated less 

than a year ago: 

 The requirements to provide factual support in the settlement proposal and for the 

Judge’s decision approving settlement to be supported by the record have been 

largely unchanged since the inception of the Commission’s procedural rules in 

 8

 While the Secretary asserted in American Coal that it is inappropriate for a judge to 

consider section 110(i) factors when considering whether to approve a proposed penalty 

settlement, the Commission directly stated, “We disagree.” The American Coal Company, 38 

FMSHRC 1972, 1981 (Aug. 2016). For instance, in Black Beauty, the Commission held that it 

was not error for the Judge to request factual support relating to the six criteria set forth in 

section 110(i) for her consideration of the penalties agreed to by the parties. Black Beauty Coal 

Company, 34 FMSHRC 1856, 1864 (Aug. 2012). 

39 FMSHRC Page 1198
1979... The Commission has recognized that standards for such factual support 

may be found in section 110(i). 

 

The American Coal Company, 38 FMSHRC 1972, 1981 (Aug. 2016) (“American Coal”) 

(emphasis added). 

Now, with a zombie-like persistence, the Secretary refuses yet again to comply with the 

Commission’s explicit direction, a direction the Secretary implicitly accepted by its recent 

decision to file, on March 16, 2017, his Motion to Withdraw its Petition with the Court of 

Appeals for the District of Columbia. Motion at 1 (emphasis added). 

As with the Secretary’s original, insufficient, justification in February 2013 for its 30% 

across-the-board reduction, its new offering, while dressed-up, is just as empty as its original 

formulation because it again provides no facts to support the reduction sought. In the Court’s 

original rejection of the Secretary’s Motion, issued in February 2013, it noted the “impossibly 

small odds,” that each of the 32 citations warranted a 30% penalty reduction. 35 FMSHRC at 

515. As set forth below, the Secretary now offers a host of non-factual excuses, untethered to any 

specific citation. Further, there is no information associating any of the citations to the statutorily 

identified penalty factors. While wordier, the Secretary sets forth its new justification and again, 

against all odds, miraculously arrives at the same conclusion it served up four years ago — a 

30% across-the-board reduction. The translation of all this is, effectively, “we were right all 

along.” 

Here then, is the Secretary’s latest offering: 

Counsel for the Secretary reviewed the entire case, including all 32 citations, the 

inspectors' notes, the views of officials in the district office, and American Coal's 

position statement, as well as privileged information that would be improper or 

imprudent to share with the court and opposing counsel concerning the evidence 

developed in this case. Counsel concluded that there is substantial risk that the 

court could reduce the degree of negligence or gravity with respect to 14 of the 32 

citations. One additional citation runs the risk of vacatur because of a legal 

dispute between the operator and the Secretary regarding the applicability of the 

standard to the cited condition. The Secretary does not consider this case to be a 

well-chosen vehicle by which to litigate that legal dispute... If, after trial, the 

Secretary were to receive adverse decisions with respect to each of the citations 

that counsel believes to entail such risks- a worst-case outcome the Secretary does 

not believe would occur but is obligated to consider-the resulting penalty based on 

the Part 100 penalty tables would reflect an approximately 50% reduction from 

the penalties originally proposed by the Secretary. Accordingly, the Secretary has 

concluded that an across-the-board 30% reduction reflects an appropriate 

compromise. In deciding that such a compromise is appropriate, the Secretary has 

not given weight to the costs of going to trial as compared to the possible 

monetary results that would flow from securing a higher penalty total. He has, 

however, considered the fact that he is maximizing his prosecutorial impact in 

settling this case on appropriate terms and in litigating other cases in which 

39 FMSHRC Page 1199
settlement is not appropriate. The Secretary believes that maximizing his 

prosecutorial impact in such a manner serves a valid enforcement purpose. ... The 

Secretary considers the fact that the proposed settlement preserves all of the 

citations as written to be a significant advantage of the compromise. This fact will 

assist the Secretary in future enforcement efforts against this operator by ensuring 

that the paper record reflects the Secretary's views regarding the gravity and 

negligence of the operator's conduct. As the Commission is aware, such 

determinations can affect the proposed or assessed penalty in future proceedings, 

can affect whether future citations are classified as unwarrantable failures within 

the meaning of Section 104(d) of the Act, and can bear on how the citations are 

counted for purposes of determining whether the operator has demonstrated a 

pattern of violations within the meaning of Section 104(e) of the Act. ... Indeed, 

even if the Secretary were to substantially prevail at trial, and to obtain a 

monetary recovery similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective than 

the settlement, in which all the citations are admitted and can constitute a basis for 

future enforcement actions. A resolution of this matter in which all violations are 

admitted is of significant value to the Secretary and advances the purposes of the 

Act. ... Based on the course of negotiations and counsel's experience, the 

Secretary does not believe that the mine operator would have agreed not to 

contest all of the violations without a reduction in the monetary amount of the 

penalty. Based on the calculations above of litigation risk, a 30 percent reduction 

is reasonable from the Secretary's perspective in exchange for a guarantee that 

none of the violations will be set aside or modified. ... Because the violations are 

all being admitted, an across-the-board reduction in penalties is reasonable. The 

value of an admitted violation from a future enforcement perspective does not 

depend on the size of the penalty so much as it does on the nature of the violation, 

including the alleged levels of negligence and gravity. There was no reason for 

the parties to negotiate different or variable reductions for each individual 

citation; doing so would have required sensitive discussions of the strengths and 

weaknesses of the Secretary's case, and given that American Coal has agreed to 

accept each citation as written, reallocation of the penalty amount on a citationby-citation basis would undermine the Secretary's ability to effectively and 

efficiently enforce the Act. 

Secretary’s March 30, 2017 Motion at 2-4. 

 The Secretary confuses logorrhea with providing factual support. They are not the 

same. The long-winded statement is easily translatable — the Secretary’s position has not 

changed; he continues to assert that settlements are within the Secretary’s unreviewable 

discretion. The essential problem with the Secretary’s latest motion is that it does not 

provide a penalty-factor related explanation to support the uniform 30%, reduction for 

each citation. 

Importantly, in the larger picture, if this formulation were to be accepted by the 

Court, apart from the failure to meet 110(k)’s language, every case the Secretary 

39 FMSHRC Page 1200
submitted for settlement hereafter could adopt essentially the same language presented 

here. In that way, though it failed to prevail before this Court, and then failed again

before the Commission and, effectively, failed for a third time, after he decided to 

withdraw his appeal before the United States Court of Appeals for the District of 

Columbia of those prior denials, this non-factually based language in his present motion, 

if accepted, would enable the Secretary to achieve his original goal of unfettered, 

unreviewable settlement offerings before the Commission. 

 

Nor can the non-factually based language be viewed as a one-off event. That the 

Secretary would now take this dressed-up formulation of non-compliance for future cases is not 

speculation. In other recent settlements the Secretary has been providing similar, uninformative, 

language, to wit: 

In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a better settlement, and the prospects of 

coming out better or worse after a trial. In deciding that such a compromise is 

appropriate, the Secretary has not given weight to the costs of going to trial as 

compared to the possible monetary results that would flow from securing a higher 

penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating 

other cases in which settlement is not appropriate. The Secretary believes that 

maximizing his prosecutorial impact in such a manner serves a valid enforcement 

purpose. Even if the Secretary were to substantially prevail at trial, and to obtain a 

monetary judgment similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective than 

the settlement, in which all alleged violations are resolved and violations that are 

accepted can be used as a basis for future enforcement actions. A resolution of 

this matter in which all violations are resolved is of significant value to the 

Secretary and advances the purposes of the Act. 

See, e.g., the settlement motions filed by the Secretary in Omega Highwall, VA 2016-

0008 (April 26, 2017), Edgar Minerals, SE 2017-0029 (April 27, 2017), and Greenbrier, 

WEVA 2017-0091 (April 26, 2017), each of which contain this verbiage. 

Meeting the requirement of Section 110(k) requires that civil penalties are to be assessed 

upon the Commission considering: 

the operator’s history of previous violations, the appropriateness of such penalty 

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

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

39 FMSHRC Page 1201
of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation.9

30 U.S.C. 820(i); American Coal at 1977. 

 The Commission, in its August 25, 2016 decision in this case, left no room for the 

apparent confusion or obstinate stance that the Secretary has renewed here. 

As the Commission stated: 

[t]he legislative history of section 110(k) describes the Congressional rationale 

behind the provision in great detail. The Senate Report states that the 

‘compromising of the amounts of penalties actually paid’ had reduced ‘the 

effectiveness of the civil penalty as an enforcement tool.’ S. Rep. No. 95-181, at 

44 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 

(1978) (“Legis. Hist.”). The Committee explained that in investigating the penalty 

collection system under the Federal Coal Mine Safety and Health Act of 1969, it 

learned ‘that to a great extent the compromising of assessed penalties [did] not 

come under public scrutiny,’ and that ‘[n]egotiations between operators and 

Conference Officers of MESA [MSHA’s predecessor] are not on the record.’ Id.

It noted that even after a petition for civil penalty had been filed, ‘settlement 

efforts between the operator and Solicitor [were] not on the record, and a 

settlement need not be approved by the Administrative Law Judge.’ Id. 

In fashioning a solution to this problem, Congress emphasized the need for 

transparency in the penalty process, stating that ‘the purpose of civil penalties, 

[that is,] convincing operators to comply with the Act’s requirements, is best 

served when the process by which these penalties are assessed and collected is 

carried out in public,’ where miners, Congress, and other interested parties ‘can 

fully observe the process.’ Id. at 633. ‘To remedy this situation,’ section 110(k) 

‘provides that a penalty once proposed and contested before the Commission may 

not be compromised except with the approval of the Commission’ and that a 

‘penalty assessment which has become the final order of the Commission may not 

be compromised except with the approval of the Court.’ Id.

 

Congress explained that ‘[b]y imposing [the] requirements” of section 110(k), it 

“intend[ed] to assure that the abuses involved in the unwarranted lowering of 

penalties as a result of off-the-record negotiations are avoided.” Id. (emphasis 

added). Congress expressed its ‘inten[t] that the Commission and the Courts will 

 9

 Included here for the sake of completeness, the remainder of section 110(i) then speaks 

to the distinct subject of the Secretary’s proposing civil penalties by providing: “In proposing 

civil penalties under this chapter, the Secretary may rely upon a summary review of the 

information available to him and shall not be required to make findings of fact concerning the 

above factors.” 

39 FMSHRC Page 1202
assure the public interest is adequately protected before any reduction in 

penalties.’ Id. 

 

American Coal at 1975-76. 

 Anticipating the type of empty settlement the Secretary has presented yet again in this 

case, the Commission set forth its standard for reviewing proposed settlements of contested 

penalties. The Commission’s standard, based upon the language of section 110(k) and the 

legislative history for that section, is designed “‘in order to ensure that penalties serve as an 

effective enforcement tool, prevent abuse, and preserve the public interest.’ . . . The 

Commission’s consideration of proffered settlements has worked well for more than 35 years. Id.

at 1976 (quoting Black Beauty, 34 FMSHRC at 1862). 

 

Thus, the Commission summarized that it: 

must have information sufficient to carry out this responsibility. Consequently, 

through its procedural rules, the Commission has required parties to submit facts

supporting a penalty amount agreed to in settlement. In particular, Commission 

Procedural Rule 31 requires that a motion to approve penalty settlement must 

include for each violation the penalty proposed by the Secretary, the amount of 

the penalty agreed to in settlement, and facts in support of the penalty agreed to 

by the parties. 29 C.F.R. § 2700.31(b)(1). Rule 31 also requires that “[a]ny order 

by the Judge approving settlement shall set forth the reasons for approval and 

shall be supported by the record.” 29 C.F.R. § 2700.31(g). The requirements to 

provide factual support in the settlement proposal and for the Judge’s decision 

approving settlement to be supported by the record have been largely unchanged 

since the inception of the Commission’s procedural rules in 1979. See 44 Fed. 

Reg. 38,226, 38,230 (June 29, 1979). 

Id. at 1981 (emphasis added). 

 

39 FMSHRC Page 1203
Conclusion 

 Now, more than four years later, the Secretary continues to refuse to provide any facts to 

support the proposed settlement of 32 reduced penalties. The game is over. Given that Counsel 

for the Secretary has represented in its current motion that it has, “reviewed the entire case, 

including all 32 citations, the inspectors' notes, the views of officials in the district office, and 

American Coal's position statement, as well as privileged information that would be improper or 

imprudent to share with the court and opposing counsel concerning the evidence developed in 

this case,”10 there can be no need for the delay resulting from depositions, nor is there any other 

impediment to proceeding immediately to hearing in this matter. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

 10 See, Sec’s Motion at 2 (emphasis added). 

39 FMSHRC Page 1204
Appendix II 

Counsel for the Secretary reviewed the entire case, including all 32 citations, the 

inspectors' notes, the views of officials in the district office, and American Coal's position 

statement, as well as privileged information that would be improper or imprudent to share 

with the court and opposing counsel concerning the evidence developed in this case.

Counsel concluded that there is substantial risk that the court could reduce the degree of 

negligence or gravity with respect to 14 of the 32 citations. One additional citation runs 

the risk of vacatur because of a legal dispute between the operator and the Secretary 

regarding the applicability of the standard to the cited condition. The Secretary does not 

consider this case to be a well-chosen vehicle by which to litigate that legal dispute... If, 

after trial, the Secretary were to receive adverse decisions with respect to each of the 

citations that counsel believes to entail such risks- a worst-case outcome the Secretary 

does not believe would occur but is obligated to consider-the resulting penalty based on 

the Part 100 penalty tables would reflect an approximately 50% reduction from the 

penalties originally proposed by the Secretary. Accordingly, the Secretary has concluded 

that an across-the-board 30% reduction reflects an appropriate compromise. In deciding 

that such a compromise is appropriate, the Secretary has not given weight to the costs of 

going to trial as compared to the possible monetary results that would flow from securing 

a higher penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating other cases 

in which settlement is not appropriate. The Secretary believes that maximizing his 

prosecutorial impact in such a manner serves a valid enforcement purpose. ... The 

Secretary considers the fact that the proposed settlement preserves all of the citations as 

written to be a significant advantage of the compromise. This fact will assist the 

Secretary in future enforcement efforts against this operator by ensuring that the paper 

record reflects the Secretary's views regarding the gravity and negligence of the 

operator's conduct. As the Commission is aware, such determinations can affect the 

proposed or assessed penalty in future proceedings, can affect whether future citations are 

classified as unwarrantable failures within the meaning of Section 104(d) of the Act, and 

can bear on how the citations are counted for purposes of determining whether the 

operator has demonstrated a pattern of violations within the meaning of Section 104(e) of 

the Act. ... Indeed, even if the Secretary were to substantially prevail at trial, and to 

obtain a monetary recovery similar to or even exceeding the amount of the settlement, it 

would not necessarily be a better outcome from the enforcement perspective than the 

settlement, in which all the citations are admitted and can constitute a basis for future

enforcement actions. A resolution of this matter in which all violations are admitted is of 

significant value to the Secretary and advances the purposes of the Act. ... Based on the 

course of negotiations and counsel's experience, the Secretary does not believe that the 

mine operator would have agreed not to contest all of the violations without a reduction 

in the monetary amount of the penalty. Based on the calculations above of litigation risk, 

a 30 percent reduction is reasonable from the Secretary's perspective in exchange for a 

guarantee that none of the violations will be set aside or modified. ... Because the 

violations are all being admitted, an across-the-board reduction in penalties is reasonable.

The value of an admitted violation from a future enforcement perspective does not 

depend on the size of the penalty so much as it does on the nature of the violation, 

39 FMSHRC Page 1205
including the alleged levels of negligence and gravity. There was no reason for the parties 

to negotiate different or variable reductions for each individual citation; doing so would 

have required sensitive discussions of the strengths and weaknesses of the Secretary's 

case, and given that American Coal has agreed to accept each citation as written, 

reallocation of the penalty amount on a citation-by-citation basis would undermine the 

Secretary's ability to effectively and efficiently enforce the Act. 

Secretary’s March 30, 2017 Motion at 2-4. 

39 FMSHRC Page 1206
Distribution: 

Suzanne F. Dunne, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Suite 844, Chicago, IL 60604 

Jason Hardin, Esq., FABIAN & CLENDENIN, 215 South State Street, Suite 1200, Salt Lake 

City, UT 84111-2323 

Gary Broadbent, Esq., Allen McGilton, Murray Energy Corp., 46226 National Road, 

St. Clairesville, OH 43950 

Laura Karr and Arthur Traynor, United Mineworkers of America, 15354 Quantico Gateway Dr., Suite 

200, Triangle, VA 22172 

Daniel Kovalik, United Steelworkers, 5 Gateway Center, Pittsburgh, PA 15222 

39 FMSHRC Page 1207