FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 

 April 14, 2022

BC QUARRIES, LLC,

 Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent

CONTEST PROCEEDINGS

Docket No. PENN 2020-0110-RM

Citation No. 523939; 06/16/2020

Docket No. PENN 2020-0111-RM

Citation No. 9523940; 06/16/2020

Docket No. PENN 2020-0112-RM

Citation No. 9523941; 06/16/2020

Docket No. PENN 2020-0113-RM

Citation No. 9523942; 06/16/2020

Docket No. PENN 2020-0114-RM

Citation No. 9523943; 06/16/2020

Docket No. PENN 2020-0115-RM

Citation No. 9523945; 06/16/2020

Docket No. PENN 2020-0116-RM

Order No. 9523936; 06/16/2020

Docket No. PENN 2020-0118-RM

Order No. 9523937; 06/16/2020

Docket No. PENN 2020-0119-RM

Order No. 9523938; 06/16/2020

Docket No. PENN 2020-0120-RM

Order No. 9523958; 06/30/2020

Docket No. PENN 2020-0141-RM

Citation No. 9523971; 08/3/2020

Docket No. PENN 2020-0142-RM

Order No. 9523972; 08/03/2020
2

BC QUARRIES, LLC,

 Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

BC QUARRIES, LLC,

 Respondent

CONTEST PROCEEDINGS (CONT.)

Docket No. PENN 2020-0143-RM

Citation No. 9523973; 08/3/2020

Docket No. PENN 2020-0144-RM

Order No. 9523974; 08/3/2020

Docket No. PENN 2020-0145-RM

Order No. 9523975; 08/3/2020

Docket No. PENN 2020-0146-RM

Order No. 9523970; 08/3/2020

Docket No. PENN 2020-0147-RM

Order No. 9523976; 08/3/2020

Docket No. PENN 2020-0148-RM

Order No. 9523977; 08/3/2020

Docket No. PENN 2020-0149-RM

Order No. 9523978; 08/3/2020

Mine: Shirvan Quarry

Mine ID: 36-09539

CIVIL PENALTY PROCEEDING

Docket No. PENN 2021-0007

A.C. No. 36-09539-523083

Mine: Shirvan Quarry
3 

DECISION AND ORDER

Appearances: David L. Karp, operator, for BC Quarries

Ryan Atkinson and Matthew P. Epstein, Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, PA for the Secretary

Before: Judge McCarthy

This proceeding is before the undersigned upon Notices of Contest and a Petition for the 

Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d). 

This matter concerns a series of inspections of the Mine, Shirvan Quarry, from April to 

October of 2020 and the resulting citations and orders. These inspections led to a myriad of 

alleged violations, 8 citations and 11 orders at issue in this proceeding. BC Quarries also 

challenges the penalty assessment that resulted from three of the orders. Many of these alleged 

violations stem from a similar sequence that involves a citation for an alleged violation followed 

by the failure to abate that violation, a withdrawal order, and the failure to follow that withdrawal 

order. 

A hearing was held via Zoom for Government on July 13-14, 2021. During the hearing, 

the parties offered witness testimony1 and documentary evidence citation or order by citation or 

order.2

 The Secretary submitted a post-hearing brief on September 13, 2021. 

Based on a careful review of the record, including the evidence submitted, the Secretary’s

post-hearing brief, and observation of the demeanor of witnesses,3 the undersigned makes the 

following findings of fact and conclusions of the law. 

1

 MSHA inspector Timothy H. Lindsay testified for the Secretary. Mine Operator David Karp 

and his son, Brandon Karp, testified for BC Quarries. 

2

 In this Decision, “July 13 Tr.” refers to the hearing transcript for July 13, 2021, “July 14 Tr.” 

refers to the July 14, 2021 transcript, “Sec’y Ex.” refers to the Secretary’s exhibits, and “Op.

Ex.” refers to BC Quarries’ exhibits. Sec’y Exs. 1-30 and Op. Exs. 1-3 were received into 

evidence. July 14 Tr. at 75, 77.

3

 In evaluating testimony, the undersigned has taken into consideration the nature of the 

questioning and testimony given in response, the demeanor of the witnesses, their evasiveness or 

forthrightness, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for their testimony, their experience and 

credentials, and their consistency or lack of consistency vis-à-vis their own testimony and the 

testimony of other witnesses. 
4

I. STIPULATIONS

The parties submitted the following stipulations, which have been accepted into the 

record:

a) At all relevant times, Respondent has been an “operator” as defined in Section

3(d) of the Mine Act, 30 U.S.C. § 802(d).

b) BC Quarries is a “mine” as defined in § 3(h) of the Mine Act, 30 U.S.C. § 802(h). 

c) Respondent’s operations at the mine at which the Citations in this case were 

issued are subject to the jurisdiction of the Mine Act.

d) This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judges pursuant to Sections 

105 and 113 of the Mine Act.

e) The individuals whose names appear in Block 22 of the Citation(s)/Order(s) in 

this case were acting in an official capacity and as authorized representatives of the Secretary of 

Labor when they issued the Citations/Orders.

f) The Citation(s)/Order(s) were properly issued and served by a duly authorized 

representative of the Secretary of Labor upon an agent of Respondent at the date, time, and place 

stated.

g) Respondent is an ongoing business.

h) From June 16 to August 3, 2020, miners used the sea container identified in Order

9523975.

i) From June 16 to August 3, 2020, miners used the 500-gallon tank identified in 

Order 9523972.

j) From June 16 to August 3, 2020, miners used the 100-gallon tank identified in 

Order 9523974. 

k) On June 16, 2020, the John Deere excavator identified in Citation 9523939 did 

not have mirrors. 

l) As of June 16, 2020, the fire extinguisher identified in Citation 9523940 had not 

been inspected on a monthly basis.

Sec’y Prehearing Report at 3-4; July 13 Tr. at 13-26.
5

II. PRELIMINARY MATTERS

As an initial matter, numerous citations and orders involved in this matter—both those 

that BC Quarries contested and those related to contested citations and orders—have already 

become final decisions of the Commission. 

The Mine Act establishes a dual system for filing contests of citations and contests of 

proposed penalties. 30 U.S.C. § 815(d); 29 C.F.R. Part 2700, Subparts B, C; Kemper Equip. 

Inc., 35 FMSHRC 376, 376 (Feb. 2013). However, “[t]he filing of a notice of contest of a 

citation . . . does not constitute a challenge to a proposed penalty assessment that may 

subsequently be issued by the Secretary . . . based on that citation.” 29 C.F.R § 2700.21(a). 

Consequently, a party that wants to contest a proposed penalty assessment must notify the 

Secretary of such contest “regardless of whether the person has previously contested the 

underlying citation.” Id. § 2700.26. Where an operator fails to contest a penalty assessment 

within 30 days, the Secretary’s penalty assessment becomes a final order of the Commission and 

not subject to review by any court or agency. 30 U.S.C. § 815(a). This is the case even where an 

operator has contested the underlying citation. Apogee Coal Co., LLC, 38 FMSHRC 32 (Jan. 

2016); Kemper, 35 FMSHRC at 377. Furthermore, “a penalty under the Mine Act is predicated 

upon the existence of a violation.” Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985).

BC Quarries contested the following citations but failed to contest the proposed penalty 

assessments or file a motion to reopen for those citations: 

Citation No. 9523939 in Docket No. PENN 2020-0110, 

Citation No. 9523940 in Docket No. PENN 2020-0111, 

Citation No. 9523941 in Docket No. PENN 2020-0112, 

Citation No. 9523942 in Docket No. PENN 2020-0113, 

Citation No. 9523943 in Docket No. PENN 2020-0114, 

Citation No. 9523945 in Docket No. PENN 2020-0115, 

Citation No. 9523971 in Docket No. PENN 2020-0141, and 

Citation No. 9523973 in Docket No. PENN 2020-0143. 

Sec’y Ex. 25 at 1-3; MSHA, Mine Data Retrieval System, https://www.msha.gov/minedata-retrieval-system (searchable by mine name) (“MDRS”).

4

 Because BC Quarries did not 

timely contest the proposed penalties or file a motion to reopen for these dockets, the penalty 

assessments have “become[] a final order of the Commission and not subject to review by any 

court or agency.” 30 U.S.C. § 815(a). Consequently, these contest dockets are DISMISSED.

4 The undersigned takes judicial notice of MDRS. Fed. R. Evid. 201(b) (“The court may 

judicially notice a fact that is not subject to reasonably dispute because it . . . can be accurately 

and readily determined from sources whose accuracy cannot reasonably be questioned.”).
6

III. LEGAL PRINCIPLES, FACTUAL FINDINGS, AND ANALYSIS

The Secretary presents the remaining orders as falling into three categories: failure to 

abate a citation, working in the face of an order, and failure to correct a citation. 

In three of the Orders—Order No. 9523936 in Docket No. PENN 2020-0166, Order 

No. 9523937 in Docket No. PENN 2020-0118, and Order No. 9523938 in Docket No. PENN 

2020-0119—the Secretary alleges that BC Quarries violated section 104(b) when it failed to 

abate a violation in a previously issued citation. In four of the Orders—Order No. 9523970 in 

Docket No. PENN 2020-0146, Order No. 9523976 in Docket No. PENN 2020-0147, Order No. 

9523977 in Docket No. PENN 2020-0148, and Order No. 9523939 in Docket No. PENN 2020-

0110—the Secretary alleges that BC Quarries violated section 104(b) when it failed to correct a 

previous violation. The words “failure to correct” do not appear in section 104. However, it is a 

violation of section 104(b) to fail to abate a violation. As such, the undersigned will apply the 

same standard for a failure to abate a violation to the orders alleging that BC Quarries failed to 

correct a previous citation. To establish that a section 104(b) withdrawal order for a failure to 

abate is valid, the Secretary must prove “by a preponderance of the evidence that the violation 

described in the underlying section 104(a) citation existed at the time the section 104(b) 

withdrawal order was issued.” Mid-Continent Resources, Inc., 11 FMSHRC 505, 509 (Apr. 

1989).

The remaining four Orders—Order No. 9523958 in Docket No. PENN 2020-0120, Order 

No. 9523972 in Docket No. PENN 2020-0142, Order No. 9523974 in Docket No. PENN 2020-

0144, and Order No. 9523975 in Docket No. PENN 2020-0144—allege a violation for working 

in the face of a withdrawal order. Although the language “working in the face” does not appear 

in the Mine Act, it is a violation of section 104(a) to violate “any . . . order . . . promulgated 

pursuant to this Act.” 30 U.S.C. § 814(a). As such, the Secretary must show, by a 

preponderance of the evidence, that BC Quarries violated a valid, non-abated withdrawal order.

Mid-Continent Resources, 11 FMSHRC at 509.

Negligence is not defined in the Mine Act. The Commission has found that “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 

6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 

(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by 

standard violated); Spartan Mining, 30 FMSHRC at 708 (negligence inquiry circumscribed by 

scope of duties imposed by regulation violated). In this regard, the gravamen of high negligence 

is “an aggravated lack of care that is more than ordinary negligence.” Brody Mining, 

37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344, 350 

(Apr. 1998)). 
7

Commission judges are not required to apply the level-of-negligence definitions in 

Part 100 penalty regulations and may evaluate negligence from the starting point of a traditional 

negligence analysis rather than from the Part 100 definitions. Brody Mining, 37 FMSHRC 

at 1701; Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Thus, 

in making a negligence determination, a Commission judge is not limited to an evaluation of 

allegedly mitigating circumstances but may consider the totality of the circumstances 

holistically. Under such an analysis, an operator is negligent if it fails to meet the requisite high 

standard of care under the Mine Act. Brody Mining, 37 FMSHRC at 1701.

A. General Background

BC Quarries operates the Shirvan Quarry, a surface mine in Susquehanna, Pennsylvania. 

MDRS. The mine produces dimension stone. Id. 

This matter involves inspections conducted by MSHA over a series of months. In April 

2020, Inspector Gary C. Merwine conducted the first set of relevant inspections. See, e.g., Sec’y 

Ex. 8 at 7. On June 16 and 30 and July 9, 2020, Inspector Timothy H. Lindsay conducted the 

second set of inspections. See, e.g., Sec’y Ex. 5 at 1; Id. at 7; Sec’y Ex. 15 at 7. On July 30, 

2020, Inspector Lindsay again inspected the Mine. Due to events not relevant to the alleged 

violations, Inspector Lindsay left the Mine without issuing orders or citations for alleged 

violations found during the July 30 inspection. See, e.g., Sec’y Ex. 5 at 7. On August 3, 2020, 

Inspector Lindsay issued the orders and citations for alleged violations found during the July 30

inspection. Finally, in October 2020, Inspector Merwine returned to the Mine and terminated 

several pending citations and orders. See, e.g., Sec’y Ex. 12 at 11.

The facts specific to each remaining alleged violation will be discussed in separate 

sections below. 

B. Order No. 9523936

In Order No. 9523936, part of Docket No. PENN 2020-0116, the Secretary alleges that 

BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation 

No. 9522144. Sec’y Ex. 7 at 1. On April 2, 2020, Inspector Merwine issued Citation No. 

9522144 for a John Deere 330LC excavator missing all its mirrors in violation of 30 C.F.R. 

§ 56.14100(b).5 Id. at 7. BC Quarries did not contest the proposed penalty or file a motion to 

reopen for Citation No. 9522144, which has become a final order of the Commission and the 

violation cannot be challenged. MDRS; 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; 

Kemper, 35 FMSHRC at 377. Inspector Merwine gave two extensions for termination of 

Citation No. 9522144 and set a final extension for June 1, 2020. Sec’y Ex. 7 at 7-8.

On June 16, 2020, Inspector Lindsay observed that the John Deere 330LC excavator was 

still missing all its mirrors. July 13 Tr. at 203. A foreman told Inspector Lindsay that the 

5 This regulation states 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.”
8

excavator had been operated for two weeks in the cited condition after the citation had been 

written. Sec’y Ex. 7 at 2. 

In testimony, David Karp admitted that he had not fixed the mirrors. July 13 Tr. at 212. 

Mr. Karp also stated that the equipment had not been tagged out. Id. at 215-16. Mr. Karp did 

allege that the equipment was in a designated area for equipment that is out of service, but also 

admitted that there was no sign indicating that there was such an area. Id. at 216. Based on the 

lack of any indication that the area was posted or otherwise designated for equipment out of 

service, the undersigned concludes that this area was not a designated area posted for out-ofservice equipment under 30 C.F.R. § 56.14100(c).6

 In short, BC Quarries took no effective steps 

to correct the missing mirrors “in a timely manner to prevent the creation of a hazard to persons.” 

30 C.F.R. § 56.14100(b).

Consequently, the Secretary has shown by a preponderance of the evidence that BC 

Quarries failed to abate the preceding Citation No. 9522144 in violation of section 104(b). 

Accordingly, Order No. 9523936 is AFFIRMED, and contest Docket No. PENN 2020-0116 is

DISMISSED. The Secretary did not assess a penalty for this violation, and the undersigned 

declines to do so now.

C. Order No. 9523937

In Order No. 9523937, part of Docket No. PENN 2020-0118, the Secretary alleges that 

BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation 

No. 9522143. Sec’y Ex. 8 at 1. On April 2, 2020, Inspector Merwine issued the preceding 

Citation after he observed that the same John Deere 330LC excavator discussed above, was 

missing a step to access the operator’s cab and the step for accessing the fuel cap was severely 

bent and missing a trackpad. Inspector Merwine issued the preceding Citation7 for failing to 

provide a safe means of access in violation of 30 C.F.R. § 56.11001.

8

 Sec’y Ex. 8 at 7. BC 

Quarries did not contest the proposed penalty for the preceding citation or file a motion to 

reopen, and the preceding citation has become a final order of the Commission and the violation 

cannot be challenged. MDRS; 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 

6 This regulation states that “[w]hen defects make continued operation hazardous to persons, the 

defective items including self-propelled mobile equipment shall be taken out of service and 

placed in a designated area posted for that purpose, or a tag or other effective method of marking 

the defective items shall be used to prohibit further use until the defects are corrected.”

7 The original citation stated that it was for a violation of 30 C.F.R. § 56.10001. Inspector 

Lindsay explained that Inspector Merwine had entered the incorrect regulation and that 

§ 56.11001 is the correct regulation for the violation described in the preceding citation. July 13 

Tr. at 218.

8 This regulation states that “[s]afe means of access shall be provided and maintained to all 

working places.”
9

35 FMSHRC at 377. Inspector Merwine gave two extensions for terminating the preceding 

citation, setting a final extension for June 1, 2020. Sec’y Ex. 8 at 8-9.

On June 16, 2020, Inspector Lindsay observed that a step to the cab of the John Deere 

330LC excavator was still missing and that no repairs had been made. July 13 Tr. at 221. 

Inspector Lindsay testified that the John Deere 330LC excavator was not locked and tagged out. 

Id. As noted above, a foreman told Inspector Lindsay that the excavator had been operated for 

two weeks in the cited condition after the citation had been written. Sec’y Ex. 7 at 2. 

Mr. Karp admitted that he had not repaired the excavator and had not properly tagged it 

out, but he again alleged that the excavator had been moved to an out-of-service area. July 13 

Tr. at 223, 225. The undersigned again rejects this argument for the reasons set forth above

because the area was not a designated area posted for out-of-service equipment under 30 C.F.R. 

§ 56.14100(c). See Section B supra.

Consequently, the Secretary has shown by a preponderance of the evidence that BC 

Quarries failed to abate the preceding Citation No. 9522143 in violation of section 104(b). Order 

No. 9523937 is AFFIRMED, and contest Docket No. PENN 2020-0118 is DISMISSED. The 

Secretary did not assess a penalty for this violation, and the undersigned declines to do so now.

D. Order No. 9523938

In Order No. 9523938, part of Docket No. PENN 2020-0119, the Secretary alleges that 

BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation 

No. 9522147. Sec’y Ex. 9 at 1. On April 2, 2020, Inspector Merwine issued the preceding 

Citation for a John Deere 790ELC excavator that did not have a functional travel alarm and horn 

in violation of 30 C.F.R. § 56.14132(a).9

 Id. at 6. BC Quarries did not contest the proposed 

penalty or file a motion to reopen for the preceding citation, and the preceding citation has 

become a final order of the Commission and the violation cannot be challenged. MDRS; 

30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 377. Inspector 

Merwine gave two extensions for terminating the preceding citation, setting a final extension for 

June 1, 2020. Sec’y Ex. 9 at 7-8.

On June 16, 2020, Inspector Lindsay issued Order No. 9523938. He observed that the 

cited excavator was in use in the southeast corner of the pit. Lindsay’s documentation indicates 

the foreman told him that repairs had been made, but no repair or maintenance records were 

provided. Id. at 2. The foreman did not testify at hearing. Inspector Lindsay testified that when 

the operator’s representative Rodriguez tested the travel alarm by starting the excavator and 

moving it in forward and in reverse, the travel alarm and horn did not function. July 13 Tr. at 

232-33, 235; see also Sec’y Ex. 9 at 1. 

9 This regulation states that “[m]anually-operated horns or other audible warning devices 

provided on self-propelled mobile equipment as a safety feature shall be maintained in functional 

condition.”
10

BC Quarries questioned Inspector Lindsay as to the use of a spotter in lieu of a backup 

alarm. July 13 Tr. at 250. Inspector Lindsay conceded on cross that BC Quarries did not need a 

travel alarm or horn if it used a spotter. Id. at 236. However, BC Quarries provided no 

testimony or evidence that it used a spotter on June 16, 2020. Further, Inspector Lindsay never 

received training records or any other indication that BC Quarries had a trained spotter, and BC 

Quarries did not produce any such records for this tribunal. Id. at 251, 254. Accordingly, the 

undersigned finds insufficient evidence to conclude that BC Quarries used a spotter in lieu of a 

backup alarm on June 16, 2020.

Mr. Karp testified that to activate the travel alarm, “[y]ou physically have to start the 

machine to operate it.” Id. at 237. However, Mr. Karp was not present for the June 16 

inspection, and he provided no credible testimony to contradict Inspector Lindsay’s testimony 

that the excavator was physically moved during the June 16 inspection when the travel alarm did 

not work. Id. at 238.

Mr. Karp admitted that the horn did not work but testified that the fuse was blown. Id.

at 237. He further testified that that whenever the excavator is run, it is inspected, and fuses are 

kept behind the seat, but that he

d[id]n’t know what it is, if some soda got down in there at some 

time and shorted something out—or some Gatorade. The dealer 

seems to think that every once in a while, it just blows the fuse

. . . . [MSHA] keep coming on days we’re not operating any of 

these machines and writing a citation when none of them are being 

r[u]n. 

Id. at 237-38. Mr. Karp reiterated that “we have problems with the horn on the 

790 excavator. The dealer thinks some soda or Gatorade got down behind the 

seat into the fuse box.” Id. at 239. He further reiterated that pre-operational 

inspections are done on the horn, and, if it doesn’t work, the fuse is replaced. “If 

the MSHA guy comes and does an inspection, if we’re operating the machine and 

it doesn’t work, that’s our problem.” Id. “And as we start the machine on a daily 

inspect, if the fuse is blown, we put it in.” Id. at 240. 

The undersigned discredits Mr. Karp’s testimony that the 790 excavator was not in 

operation and his implicit suggestion that any blown fuse would have been caught during the 

pre-operational inspection or might have occurred mid-shift on June 16. The Secretary has 

shown that the 790 excavator was in operation and the horn and back-up alarm did not work. 

BC Quarries proffered no documentation or testimony that a fuse had been replaced on or after 

April 2 and before Inspector Lindsay’s June 16, 2020 inspection. Given the extent of failure to 

abate violations on this record, the undersigned discredits BC Quarries’ apparent rebuttal 

defenses that it had timely abated the violation, but the violation recurred. Rather, the 

undersigned finds that the Secretary has shown by a preponderance of the evidence that BC 

Quarries failed to abate the preceding Citation No. 9522147 in violation of section 104(b). Order 

No. 9523938 is AFFIRMED, and contest Docket No. PENN 2020-0119 is DISMISSED. The 

Secretary did not assess a penalty for this violation, and the undersigned declines to do so now.
11

E. Order No. 9523958

In Order No. 9523958, part of Docket No. PENN 2020-0120, the Secretary alleges that 

BC Quarries violated section 104(b) when it was “working in the face” of the preceding Order,

Order No. 9523938, part of Docket No. PENN 2020-0119. Sec’y Ex. 10 at 1. The preceding 

Order was a section 104(b) withdrawal Order that was issued on June 16, 2020, requiring that the 

Operator cease the use of the John Deere 790ELC excavator. Sec’y Ex. 9 at 1. The undersigned 

affirmed the preceding Order and dismissed the Operator’s contest of the preceding Order in 

Section D above. 

Order No. 9523958 originally alleged a violation of section 104(a), but Inspector Lindsay

testified that there was a clerical error, and the violation was modified to a violation of section 

104(b). Sec’y Ex. 10 at 1-2; July 13 Tr. at 246. However, as explained above, a violation of a 

valid withdrawal order as alleged in Order No. 9523958 is a violation of section 104(a). 

30 U.S.C. § 814(a) (stating that it is a violation to violate “any . . . order . . . promulgated 

pursuant to this Act”). Consequently, the undersigned MODIFIES Order No. 9523958 from a 

violation of section 104(b) to a violation of section 104(a).10

On June 30, 2020, Inspector Lindsay issued Order No. 9523958 after observing that the 

hour meter on the John Deere 790ELC excavator indicated that the excavator had been operated 

between June 18 and June 30, 2020. Sec’y Ex. 10 at 1; July 13 Tr. at 248-49. The Secretary also 

introduced photographs showing the difference in the hour meter on those two dates. Sec’y Ex. 

10 at 4-5. These photos, along with Inspector Lindsay’s testimony, indicate that the excavator 

had been operated for 23.4 hours during that 12-day period. The preceding withdrawal Order 

was still in place. Id. at 1.

BC Quarries again raised the issue of a spotter (July 13 Tr. at 250), but for the same

reasons set forth above, the undersigned does not find sufficient evidence to support the 

existence of a spotter. See Section D supra. BC Quarries did not offer evidence or testimony to 

rebut the evidence of the hour meter indicating that the excavator had been operated between 

June 18 and June 30, 2020.

The specific charge of Order No. 9523958 is that BC Quarries operated the John Deere 

790ELC excavator while it was under withdrawal Order No. 9523938. The undersigned finds 

that the Secretary has shown by a preponderance of the evidence that the excavator was operated 

between June 18 and June 30, 2020, in violation of the withdrawal order and section 104(a).

Order No. 9523958 is AFFIRMED as modified, and contest Docket No. PENN 2020-0120 is

DISMISSED. The Secretary did not assess a penalty for this violation, and the undersigned 

declines to do so now.

10 In making this modification, the undersigned does not add new factual allegations outside of 

the original Order and finds that BC Quarries had notice of these allegations and is not unfairly 

prejudiced. See Mettiki Coal Corp., 13 FMSHRC 760, 765 (May 1991).
12

F. Order No. 9523972

In Order No. 9523972, part of contest Docket No. PENN 2020-0142 and penalty Docket 

No. PENN 2021-0007, the Secretary alleges that BC Quarries violated section 104(a) when it 

continued to use a 100-gallon fuel tank and a 500-gallon fuel tank without proper labeling and 

after the issuance of a preceding withdrawal Order, Order No. 9523952. Sec’y Ex. 12 at 1. The 

Secretary issued the preceding withdrawal Order No. 9523952 on June 30, 2020, for failing to 

abate Citation No. 9523943. Id. at 10. The preceding Citation No. 9523943 found a violation of 

30 C.F.R. § 47.41(a)11 because the tanks “were not labeled with [their] contents.” Sec’y Ex. 5 

at 1. BC Quarries did not contest or file a motion to reopen the preceding Order, and the 

undersigned dismissed the challenge to Citation No. 9523943. See Section II supra. As a result, 

the preceding Order and Citation are “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee 

Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 377. Inspector Merwine terminated the 

preceding Order on October 6, 2020. Sec’y Ex. 12 at 11.

On July 30, 2020, Inspector Lindsay saw that the same 100-gallon and 500-gallon fuel 

tanks did not have labels indicating the contents of the tanks and the hazards posed by those 

contents. July 13 Tr. at 289. These tanks contained diesel fuel, a fire hazard. Id. at 329. 

Inspector Lindsay also observed that the tanks were being used at that time. Id. at 291-92. 

Mr. Karp acknowledged that the tanks had been moved and used between June 30 and 

August 3, 2020. Id. at 293-95.12 Brandon Karp testified that he had written “no smoking” on the 

tanks on June 16 and “flammable” “combustible” by June 19, 2020. Id. at 306, 308. Although 

Brandon Karp initially testified that he “wrote diesel on the tanks or diesel storage,” he later 

admitted that the tanks did not have the word “diesel” on them or have other labelling that would 

indicate the contents of the tanks. Id. at 298-99, 315. Given the subsequent testimony and the 

lack of supporting photographic or other evidence, the undersigned discredits Brandon Karp’s 

11 This regulation states that “[t]he operator must ensure that each container of a hazardous 

chemical has a label. If a container is tagged or marked with the appropriate information, it is 

labeled.” As relevant here, 30 C.F.R. § 47.42 states that a label must “[d]isplay appropriate hazard 

warnings” and “[u]se a chemical identity that permits cross-referencing between the list of hazardous 

chemicals, a chemical's label, and its MSDS.” Additionally, § 47.11 defines “Identity” as “[a] 

chemical’s common name or chemical name” and “Label” as “[a]ny written, printed, or graphic 

material displayed on or affixed to a container to identify its contents and convey other relevant 

information.”

12 In relation to another citation, BC Quarries obliquely argued that it was not liable because the 

tanks belonged to a subcontractor and not BC Quarries. July 13 Tr. at 279-80. But even if the 

tanks belonged to a contractor, BC Quarries—as the operator of the mine—is liable for the 

actions of its contractors. Mingo Logan Coal Co., 19 FMSHRC 246, 249 (Feb. 1997) 

(confirming that an operator is “strictly liable for all violations of the Act that occur on the mine 

site, whether committed by one of its employees or an employee of one of its contractors” (citing 

Bulk Transp. Servs., Inc., 13 FMSHRC 1354 (Sept. 1991)).
13

initial testimony that he wrote “diesel” or “diesel storage” on the tanks and credits his subsequent 

admission that he did not do so. 

BC Quarries submitted a photo that showed a manufacturer’s label on the 100-gallon 

tank. Op. Ex. 2. However, that label—a diamond with a red background, a picture of a flame, 

the word “combustible,” and the number three—only indicates that tank contained a flammable 

liquid and does not indicate what type of liquid was in the tank. See 49 CFR § 172.419 (defining

the hazard label for flammable liquids). As such, the manufacturer’s label does not satisfy the 

requirements of § 47.41(a).

BC Quarries introduced no credible evidence that the tanks were labelled as containing 

diesel fuel at any time between June 30 and July 31, 2020. Based on that failure and the 

testimony provided by Inspector Lindsay, the undersigned finds that the tanks were not labelled 

to identify their contents. 

Consequently, the undersigned finds that the Secretary has shown by a preponderance of 

the evidence that BC Quarries continued to use the 100- and 500-gallon fuel tanks without labels 

identifying their contents and did so despite the preceding withdrawal Order No. 9523952, thus 

violating section 104(a). Order No. 9523972 is AFFIRMED, and contest Docket No. PENN 

2020-0142 is DISMISSED. 

After the issuance of the withdrawal Order, BC Quarries did attempt to label the tanks to 

comply with MSHA regulations. Despite its failure to conform to these regulations, the actions 

of BC Quarries demonstrate that it was acting with only moderate negligence in this violation. 

Because the preceding withdrawal Order and Citation were still in effect on July 30, 2020, the 

violation described in Order No. 9523972 would not, itself, result in any additional likelihood of 

injury or illness. Therefore, the gravity of Order No. 9523972 is none. Through its repeated 

attempts to correct the violation, BC Quarries demonstrated some good faith.

The amount of a proper penalty will be discussed in Section IV.

G. Order No. 9523974

In Order No. 9523974, part of contest Docket No. PENN 2020-0144 and penalty Docket 

No. PENN 2021-0007, the Secretary alleges that after the issuance of a preceding section 104(b) 

withdrawal Order No. 9523954, BC Quarries violated section 104(a) when it continued to use the 

above-mentioned 100-gallon and 500-gallon fuel tanks without signs prohibiting smoking and 

open flames. Sec’y Ex. 14 at 1. The Secretary issued the preceding withdrawal Order 

No. 9523954 on June 30, 2020 for failing to abate Citation No. 9523946. Id. at 12. The 

preceding Citation No. 9523946 was for a violation of 30 C.F.R. § 56.4101.

13 BC Quarries did 

not contest the preceding Order or Citation. As a result, the preceding Order and Citation are 

“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 

13 This regulation states that “[r]eadily visible signs prohibiting smoking and open flames shall 

be posted where a fire or explosion hazard exists.”
14

35 FMSHRC at 377. Inspector Merwine terminated the preceding Citation on October 6, 2020. 

July 13 Tr. at 332.

On July 30, 2020, Inspector Lindsay observed a 100-gallon fuel tank and a 500-gallon 

fuel tank at the Mine. Id. at 329. These tanks contained diesel fuel, a fire hazard. Id. The 100-

gallon fuel tank had the manufacturer’s label, but neither fuel tank had any signs prohibiting 

smoking or open flames. Id. at 330-31. BC Quarries stipulated that miners used the 100-gallon 

and the 500-gallon fuel tanks from June 16 to August 3, 2020. Sec’y Prehearing Report at 3-4; 

July 13 Tr. at 13-26; see also id. at 347 (Brandon Karp testifying that the tanks were never taken 

out of service). 

Brandon Karp also testified that the words “no smoking” were written on the tanks with a 

Sharpie pen, but he admitted that there was no sign prohibiting smoking and open flames. July 

13 Tr. at 347. BC Quarries submitted a photo taken on August 10, 2022 showing the words “no 

smoking” and “combustible” written in Sharpie on the 500-gallon tank. Op. Ex. 3. However, 

based on the photo, the undersigned finds that the words in thin black Sharpie on the rust-colored

500-gallon tank are not “readily visible” as required by the regulation. 30 C.F.R. § 56.4101. No 

similar photo with words written in thin black Sharpie was proffered by BC Quarries for the 100-

gallon tank. See Sec’y Ex. 14 at 5 and 6. The undersigned concludes that on July 30, 2020, the 

100-gallon fuel tank and the 500-gallon fuel tank did not have readily visible signs prohibiting 

smoking and open flames. 

The undersigned concludes that the Secretary has shown by a preponderance of the 

evidence that BC Quarries violated section 104(a) by continuing to use the 100- and 500-gallon 

fuel tanks without signs prohibiting smoking and open flames while the preceding withdrawal 

Order No. 9523954 was in effect. Accordingly, Order No. 9523974 is AFFIRMED, and contest 

Docket No. PENN 2020-0144 is DISMISSED. 

After the issuance of the withdrawal Order, BC Quarries did attempt to label the tanks to 

comply with MSHA regulations. Despite its failure to conform to these regulations, the actions 

of BC Quarries demonstrate that it was acting with only moderate negligence in this violation. 

Because the preceding withdrawal Order and Citation were still in effect on July 30, 2020, the 

violation described in Order No. 9523974 would not, itself, result in any additional likelihood of 

injury or illness. Therefore, the gravity of Order No. 9523974 is none. Through its repeated 

attempts to correct the violation, BC Quarries demonstrated some good faith.

The amount of a proper penalty will be discussed in Section IV.
15

H. Order No. 9523975

In Order No. 9523975, part of contest Docket No. PENN 2020-0145 and penalty Docket 

No. PENN 2021-0007, the Secretary alleges that BC Quarries violated section 104(a) when it

used a sea container housing oxygen acetylene tanks and gasoline cans without signs prohibiting 

smoking and open flames after the issuance of a preceding section 104(b) withdrawal Order, 

Order No. 9523955. Sec’y Ex. 15 at 1. The Secretary issued the preceding withdrawal Order 

No. 9523955 on June 30, 2020 for failing to abate Citation No. 9523948. Id. at 5. The preceding 

Citation No. 9523948 was for a violation of 30 C.F.R. § 56.4101.14 BC Quarries did not contest 

the preceding Order or Citation. As a result, the preceding Order and Citation are “admitted and 

unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 

377. The preceding Citation was terminated on October 6, 2020. July 13 Tr. at 352.

On July 30, 2020, Inspector Lindsay observed a sea container that had oxygen acetylene 

tanks and gasoline tanks inside. Id. at 352. Inspector Lindsay did not observe any signs on the 

outside of the container indicating that smoking and open flames were prohibited. Id. 

Inspector Lindsay also observed the inside of the sea container and did not see the required 

signage. Id. at 355. Inspector Lindsay also testified that the doors of the container were open, 

and that he did not observe any signs on the interior sides of the doors either. Id. at 354-55.

Inspector Lindsay also testified that the container presented a fire hazard because of its contents 

and the risk that a dropped match or lit cigarette would ignite the dry grass surrounding the 

container. Id. at 358-57, 362-63; Sec’y Ex. 15, at 8-9. 

Mr. Karp testified that, on July 30, 2020, there were labels on the inside of the doors of 

the sea container. July 13 Tr. at 360. This testimony conflicts with Inspector Lindsay’s 

testimony that there were no labels on the inside of the doors of the container. Id. at 354-55. On 

this record, the undersigned credits Inspector Lindsay who had clear recall on cross examination 

of his observations and discussions concerning the open container and its contents on August 3, 

2020. Id. at 354-60. However, whether there were signs on the insides of the doors is ultimately 

irrelevant. The standard requires that the required signage be “readily visible.” 30 C.F.R. 

§ 56.4101. Even if there were signs on the interior sides of the doors, once those doors are 

closed, the signs are no longer visible to miners on the outside of the container filled with oxygen 

acetylene and gasoline tanks. If there were signs on the interior of the doors, they were not 

“readily visible” and would not, alone, satisfy the standard. July 13 Tr. at 359. 

Consequently, the undersigned finds that the Secretary has shown by a preponderance of 

the evidence that BC Quarries continued to store materials that posed a fire or explosion hazard 

in the sea container without readily visible signs prohibiting smoking and open flames and did so 

despite the preceding withdrawal Order No. 9523955, thereby violating section 104(a). Order 

No. 9523975 is AFFIRMED, and contest Docket No. PENN 2020-0145 is DISMISSED. 

BC Quarries had been repeatedly warned to label the sea container, which had oxygen 

acetylene and gasoline tanks inside, with signs prohibiting smoking and open flames. The failure 

14 This regulation states that “[r]eadily visible signs prohibiting smoking and open flames shall 

be posted where a fire or explosion hazard exists.”
16

to do so and the continued use of the sea container despite the withdrawal Order constitutes high 

negligence. Because the preceding withdrawal Order and Citation were still in effect on July 30, 

the violation described in Order No. 9523975 would not, itself, result in any additional likelihood 

of injury or illness. Therefore, the gravity of Order No. 9523975 is none. Despite the preceding 

Order and Citation, BC Quarries did not correct the violation. This demonstrates a lack of good 

faith on the part of BC Quarries.

The amount of a proper penalty will be discussed in Section IV.

I. Order No. 9523970

In Order No. 9523970, part of contest Docket No. PENN 2020-0146, the Secretary 

alleges that BC Quarries violated section 104(b) when it failed to abate the preceding Citation, 

Citation No. 9523967. Sec’y Ex. 16 at 1. The Secretary issued the preceding Citation No. 

9523967 on July 9, 2020 for a violation of 30 C.F.R. § 56.14207.15 Id. at 7. BC Quarries did not 

contest the preceding Citation. As a result, the preceding Order and Citation are “admitted and 

unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 

377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 16 at 2.

During the July 9, 2020 inspection, Inspector Lindsay observed a Volvo A25C haul truck 

that was parked with no chocks. July 14 Tr. at 6. At that time, Inspector Lindsay used the level 

on his phone and determined that the truck was on a two-degree incline. Id. at 7. Inspector 

Lindsay also took a picture of the truck and the level indicating the two-degree incline. Sec’y 

Ex. 16 at 11. Based on this inspection, Inspector Lindsay issued the preceding Citation 

No. 9523967. Id. at 7.

During the July 30, 2020 inspection, Inspector Lindsay again observed the haul truck 

parked with no chocks. July 14 Tr. at 7. Although it was the same haul truck, it was in a 

different location during the July 30 inspection. Id. at 12. The Secretary submitted two photos 

of the haul truck taken during the July 30 inspection. Sec’y Ex. 16 at 5-6. Inspector Lindsay

also testified that the haul truck was on an incline. July 14 Tr. at 7. However, Inspector Lindsay

did not provide any measurements of the angle of the incline during the July 30 inspection. 

Additionally, Inspector Lindsay admitted that one of the photos (Sec’y Ex. 16 at 5) did not show 

an incline and that he could not tell how far the truck might roll in the second photo (Sec’y Ex. 

16 at 6). Id. at 9, 11, 16. 

Mr. Karp testified that the haul truck was on level ground during the July 30 inspection. 

Id. at 18.

As noted above, to prove a failure to abate a preceding violation, the Secretary must show 

that the violation that existed in the preceding citation existed at the time the Secretary issued the 

15 This regulation states that “[m]obile equipment shall not be left unattended unless the controls 

are placed in the park position and the parking brake, if provided, is set. When parked on a grade, 

the wheels or tracks of mobile equipment shall be either chocked or turned into a bank.”
17

order. Mid-Continent Resources, Inc., 11 FMSHRC at 509. Here, the Secretary has failed to 

provide sufficient evidence to show that the haul truck was on an incline on the date he issued 

the Order. Of the two photos used as support for this Order, the first shows—and the Inspector 

admitted it shows—the truck on level ground. Sec’y Ex. 16 at 5; July 14 Tr. at 9, 16. The 

second photo is more ambiguous, but the undersigned finds that the second photo does not show, 

by a preponderance of the evidence, that the haul truck was on an incline during the July 30 

inspection. Sec’y Ex. 16 at 6. Even assuming the second photo showed an incline, the Secretary

did not provide any evidence as to the degree of any incline or demonstrate that it was more than 

de minimis. 

Although the Secretary need only show that the violation described in the preceding 

Citation existed at the time of the issuance of the Order, the different locations of the haul truck 

present a changed circumstance. Because the haul truck had been moved sometime between the 

July 9 and 30 inspections, the Secretary cannot rely on Inspector Lindsay’s testimony that he 

determined that the truck was on a two-degree incline during the July 9, 2020 inspection. The 

Secretary must show that haul truck was on an incline in the new location on July 30, 2020. The 

Secretary has failed to do so.

As noted, Mr. Karp testified contrary to Inspector Lindsay that the haul truck was on 

level ground during the July 30 inspection. July 14 Tr. at 18. Although Inspector Lindsay 

testified that the haul truck was on an incline, he did not provide any measurements of the angle 

of the incline during the July 30 inspection and he admitted that one of the photos did not show 

an incline and he could not tell how far the truck might roll in the second photo. In these 

circumstances, the undersigned discounts Lindsay’s testimony and credits Karp’s testimony that 

the haul truck was on level ground during the July 30 inspection consistent with Sec’y Ex. 16 at 

5. 

Consequently, the Secretary has failed to show by a preponderance of the evidence that 

BC Quarries failed to abate Citation No. 9523967, and the undersigned VACATES Order 

No. 9523970. 

J. Order No. 9523976

In Order No. 9523976, part of contest Docket No. PENN 2020-0147, the Secretary

alleges that BC Quarries violated section 104(b) when it failed to abate the preceding Citation, 

Citation No. 9523968. Sec’y Ex. 17 at 1. The Secretary issued the preceding Citation No. 

9523968 on July 9, 2020 for a violation of 30 C.F.R. § 56.11001.

16 Id. at 8. BC Quarries did not 

contest the preceding Citation. MDRS. As a result, the preceding Order and Citation are 

“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 

35 FMSHRC at 377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 17 

at 2.

16 This regulation states that “[s]afe means of access shall be provided and maintained to all 

working places.”
18

On July 9, 2020, Inspector Lindsay observed a Volvo A25C haul truck with damaged 

steps. July 14 Tr. at 25, Sec’y Ex. 17 at 8. Specifically, Inspector Lindsay observed that the 

bottom step of the engine access step was missing and that the next step was damaged, making it 

uneven. Id. at 27. Based on the damaged steps, the Secretary issued the preceding Citation No. 

9523968 for a failure to provide safe access for the haul truck. Sec’y Ex. 17 at 8.

On July 30, 2020, Inspector Lindsay inspected the haul truck again and found that the steps 

were still damaged. July 14 Tr. at 28. Inspector Lindsay also took photos of the damaged steps. Id.;

Sec’y Ex. 17 at 5. 

Although Mr. Karp argued that he had personal reasons for not repairing the steps, he 

admitted that an inspector had told him how to fix the damaged steps, but he had not done so. 

July 14 Tr. at 35-37, 38. 

The Secretary has demonstrated by a preponderance of the evidence that BC Quarries did not 

abate the preceding Citation No. 9523968 in violation of section 104(b). Order No. 9523976 is 

AFFIRMED, and contest Docket No. PENN 2020-0147 is DISMISSED. The Secretary did not 

assess a penalty for this violation, and the undersigned declines to do so now.

K. Order No. 9523977

In Order No. 9523977, part of contest Docket No. PENN 2020-0148, the Secretary 

alleges that BC Quarries violated section 104(b) when it failed to abate the preceding citation, 

Citation No. 9523957. Sec’y Ex. 18 at 1. The Secretary issued the preceding Citation 

No. 9523957 on June 30, 2020 for a violation of 30 C.F.R. § 56.14100(d).

17 Id. at 5. 

BC Quarries did not contest the preceding Citation. MDRS. As a result, the preceding Citation is

“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 

35 FMSHRC at 377. The preceding Citation was terminated on October 8, 2020. July 14 Tr. at 

41; Sec’y Ex. 18 at 2.

On June 30, 2020, Inspector Lindsay requested pre-shift examination and workplace 

examination paperwork. July 14 Tr. at 39-40. At that time, BC Quarries did not produce any 

paperwork, despite the multiple pieces of defective equipment at the Mine. Id. at 39. Inspector 

Lindsay then issued the preceding Citation No. 9523957 for violating § 56.14100(d). Sec’y Ex. 

18 at 5. The original Citation referenced several pieces of defective equipment that should have 

been documented under § 56.14100(d). Id.

On July 30, 2020, Inspector Lindsay returned to the mine and again requested pre-shift 

and workplace exam paperwork. July 14 Tr. at 40. BC Quarries did not provide the requested

17 This regulation states that “[d]efects on self-propelled mobile equipment affecting safety, 

which are not corrected immediately, shall be reported to and recorded by the mine operator. 

The records shall be kept at the mine or nearest mine office from the date the defects are 

recorded, until the defects are corrected. Such records shall be made available for inspection by 

an authorized representative of the Secretary.”
19

paperwork. Based on BC Quarries’ continued failure to produce the paperwork, Inspector 

Lindsay issued Order No. 9523977.

At the hearing, Mr. Karp argued that, because no equipment needed repairs during preshift examinations, there was no need for such equipment to be listed in pre-shift and 

workplace-exam paperwork. July 14 Tr. at 49. Inspector Lindsay admitted that, under 

§ 56.14100(d), a mine operator does not need to provide paperwork where there are no defects. 

Id. at 50. The evidence throughout this hearing demonstrates, however, that there were known 

defects that BC Quarries never documented, and that BC Quarries failed to abate. For example, 

Orders No. 9523937 and 9523938 involve defects that had been originally cited as violations on 

April 2, 2020, were part of Citation No. 9523957—the preceding Citation—and had not been 

abated until October 2020. BC Quarries did not produce these records until the preceding 

Citation was abated on October 8, 2020. Id. at 41. As such, the evidence demonstrates that there 

were at least several months when BC Quarries was aware of the defects but did not record them

as required by § 56.14100. This evidence further indicates that BC Quarries was in violation of 

this regulation when Order 9523977 was issued.

Consequently, the Secretary has demonstrated by a preponderance of the evidence that 

BC Quarries did not abate the preceding Citation No. 9523957, thereby violating section 104(b). 

Order No. 9523977 is AFFIRMED, and contest Docket No. PENN 2020-0148 is DISMISSED. 

The Secretary did not assess a penalty for this violation, and the undersigned declines to do so 

now.

L. Order No. 9523978

In Order No. 9523978, part of contest Docket No. PENN 2020-0149, the Secretary 

alleges that BC Quarries violated section 104(b) when it failed to abate the preceding citation, 

Citation No. 9523961. Sec’y Ex. 19 at 1. The Secretary issued the preceding Citation 

No. 9523961 on June 30, 2020 for a violation of 30 C.F.R. § 56.4430(a).

18 Id. at 19. 

BC Quarries did not contest the preceding Citation. MDRS. As a result, the preceding Citation is 

“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 

35 FMSHRC at 377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 19 

at 2.

18 As relevant here, this regulation states that “[s]torage tanks for flammable or combustible 

liquids shall be -

(1) Capable of withstanding working pressures and stresses and compatible with the type 

of liquid stored;

(2) Maintained in a manner that prevents leakage;

(3) Isolated or separated from ignition sources to prevent fire or explosion; and

(4) Vented or otherwise constructed to prevent development of pressure or vacuum as a 

result of filling, emptying, or atmospheric temperature changes. Vents for storage 

of Class I, II, or IIIA liquids shall be isolated or separated from ignition sources. 

These pressure relief requirements do not apply to tanks used for storage of Class 

IIIB liquids that are larger than 12,000 gallons in capacity.”
20

During the July 9, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans 

containing gasoline that were not “maintained in a manner to prevent leakage.” July 14 Tr. at 51. 

Specifically, the cans “had a plastic bag with trash inside draped over the fill port and the cap 

[was] placed on it to prevent leakage.” Id. at 51. Inspector Lindsay issued the preceding 

Citation to that effect. Sec’y Ex. 19 at 9.

During the July 30, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans that 

“didn’t have any ventilation” and had caps “screwed on tight.” July 14 Tr. at 52. The Secretary 

proffered a photo of the cans taken during this inspection. Sec’y Ex. 19 at 4. The photo does not 

show any bag filled with trash. Id. Inspector Lindsay also admitted that there was no plastic bag 

during this inspection and that BC Quarries had “made an adjustment.” July 14 Tr. at 56. 

Mr. Karp also testified that the cans had been changed between the two inspections. Id. at 57.

Order 9523978 is for a violation of 104(b) for a failure to abate the preceding Citation 

No. 9523961. The Secretary needs to prove that the violation described in the preceding Citation 

existed at the time the Order was issued. Sec’y Br. at 32 (citing Mid-Continent Resources, Inc., 

11 FMSHRC at 509). However, the Secretary has failed to prove that here. The original citation 

described the violation as a fuel can “not maintained in a manner that prevents leaks” and “had a 

plastic bag with trash inside draped over the fill port then the cap placed on it.” Sec’y Ex. 19 

at 4. In contrast, Inspector Lindsay, on July 30, 2020, issued the Order for a fuel can that “didn’t 

have any ventilation” and “the cap was screwed on tight.” July 14 Tr. at 52. Inspector Lindsay 

also admitted—and the photo clearly demonstrates—that there was no plastic bag with trash in it 

during the July 30 inspection. Id. at 56; see also, Sec’y Ex. 19 at 4.

The violation described in the preceding Citation did not exist on July 30, 2020. Not only 

was there no “plastic bag with trash inside draped over the fill port” with a cap on it, but the 

description of the violation was also different during the July 30 inspection. Inspector Lindsay 

testified that the July 30 inspection showed fuel cans that lacked ventilation, but the preceding 

Citation was for failure to prevent leakages. Compare id. at 52 (describing the fuel can that 

“didn’t have any ventilation”) with Sec’y Ex. 19 at 4 (“The five gallon fuel can . . . was not 

maintained in a manner that prevents leakage”). While § 56.4430(a) concerns both leakage and 

ventilation, the preceding Citation described a violation for a condition—that is, leakage—that 

was not present at the time of the subsequent Order.

The Secretary has failed to demonstrate that the violation described in Citation 

No. 9523961 existed at the time he issued Order No. 9523978, and the undersigned VACATES

Order No. 9523978.

IV. Penalty Assessment

It is well established that Commission Administrative Law Judges assess civil penalties 

de novo for violations of the Act. Section 110(i) of the Act delegates to the Commission the 

“authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act 

delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). When 

an operator contests the proposed penalty, the Secretary petitions the Commission to assess the

proposed penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil monetary 

penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:
21

[1] the operator’s history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, [3] whether the operator was negligent, [4] the 

effect on the operator's ability to continue in business, [5] the 

gravity of the violation, and [6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation.

30 U.S.C. § 820(i). 

In keeping with this statutory requirement, the Commission has held that “findings of fact 

on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co.,

5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once factual findings 

on the statutory penalty criteria have been made, a judge’s penalty assessment for a particular 

violation is an exercise of discretion, which is bounded by proper consideration of the statutory 

criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 

(May 2000). In exercising this discretion to determine the amount of a penalty, the Commission 

has recognized that a judge is not bound by the penalty proposed by the Secretary. Spartan 

Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).

When determining a proper assessment for the violations, the undersigned considered the 

following facts: 1) BC Quarries’ history of violations of the relevant standards in the 15 months 

prior to the accident (Sec’y Ex. 25); 2) BC Quarries’ size as an operator, who logged 3,000 hours 

worked at the mine in 2020 (MDRS); and 3) the fact that the penalties will not have an effect on 

BC Quarries’ ability to continue in business (July 13 Tr. at 26).

In addition, the undersigned considered the high level of negligence and zero gravity of 

Order No., and 9523975, as well as the failure in good faith to timely correct the violations. For 

Orders No. 9523972 and 9523974, the undersigned considered the moderate levels of 

negligence, the zero gravity, and BC Quarries’ good faith.

Based upon the undersigned’s consideration of the section 110(i) penalty criteria and the 

deterrent purposes of the Act, the undersigned assesses penalties of $125.00 each for Orders No. 

9523972 and 9523974 and a penalty of $137.00 for Order No. 9523975. This amount is the 

result of an independent determination of the penalty amount based on the statutory criteria that 

responds to the seriousness of the violations and will deter future violations. American Coal Co. 

v. FMSHRC, 933 F.3d 723, 728 (D.C. Cir. 2019). 

V. CONCLUSION

For the foregoing reasons, it is ORDERED that Docket No. PENN 2020-0110 contesting 

Citation No. 9523939, Docket No. PENN 2020-0111 contesting Citation No. 9523940, Docket 

No. PENN 2020-0112 contesting Citation No. 9523941, Docket No. PENN 2020-0113 

contesting Citation No. 9523942, Docket No. PENN 2020-0114 contesting Citation 

No. 9523943, Docket No. PENN 2020-0115 contesting Citation No. 9523945, Docket No. 

PENN 2020-0141 contesting Citation No. 9523971, and Docket No. PENN 2020-0143 

contesting Citation No. 9523973 be DISMISSED.
22 

It is ORDERED that Orders No. 9523936, 9523937, 9523938, 9523975, 9523976, and 

9523977 be AFFIRMED, and contest Dockets No. PENN 2020-0116, 0118, 0119, 0145, 0147, 

and 0148 be DISMISSED. 

It is ORDERED that Order No. 9523958 be MODIFIED from a violation of section 

104(b) to a violation of section 104(a); that Orders No. 9523972 and 9523974 be MODIFIED

from high negligence to moderate negligence; that Orders No. 9523958, 9523972, and 9523974 

be AFFIRMED as modified; and that contest Dockets No. PENN 2020-0120, 0142, and 0144 be 

DISMISSED. 

It is ORDERED that Orders No. 9523970 and 9523978 be VACATED. 

It is further ORDERED that the Operator pay a total penalty of $387.00 within thirty 

days of this order.19

 

 Thomas P. McCarthy

 Administrative Law Judge

19 Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury, at 

https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health 

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 

63179-0390. 
23 

Distribution:

David Karp

BC Quarries, LLC

908 Fox Road 

Factoryville, PA 18419 

bigfish6344@gmail.com 

Ryan Atkinson 

Matthew R. Epstein

Office of the Solicitor

U.S. Department of Labor 

The Curtis Center

170 S. Independence Mall West

Suite 630 East 

Philadelphia, PA 19106-3306 

atkinson.ryan.c@dol.gov 

epstein.matthew.r@dol.gov 

BC Quarries, LLC

Miner’s Representative

908 Fox Road 

Dimock, PA 18419 

/ztb