MAY AND JUNE 2010 

COMMISSION ORDERS 

05-05-2010 lmerys Clay, Inc. SE 2009-717-M Pg.435 

05-06-2010 Swinson Materials, Inc. LAKE 2010-355-M Pg.438 

05-06-2010 Cumberland Coal Resources, LP PENN 2008-51-R Pg.442 

05-11-2010 Orchard Coal Company, et al. PENN 2010-339-E Pg.454 

06-03-2010 Cemex, Inc. SE 2010-426-M Pg.458 

06-03-2010 Rockhouse Creek Development LLC. WEV A 2010-648 Pg.462 

06-04-2010 Performance Coal Company WEVA2010-195 Pg.466 

06-10-2010 C & P Sand & Gravel, Inc. CENT 2010-435-M Pg. 470 

06-10-2010 Lehigh Cement Company PENN 2010-256-M Pg. 473 

06-10-2010 Rocky Point Rock, Inc. SE 2010-396-M Pg.476 

06-10-2010 Miles Sand & Gravel Company WEST 2010-465-M Pg.480 

06-10-2010 Hanson Aggregates Arizona, Inc. WEST 2010-573-M Pg. 483 

06-16-2010 Pritchard Mining Company, Inc. WEV A 2009-1708 Pg.486 

06-23-2010 Knife River Midwest LLC. CENT 2010-291-M Pg.490 

06-23-2010 John S. Olynick, Inc. LAKE 2010-242-M Pg. 493 

06-23-2010 City Stone, LLC. LAKE 2010-301-M Pg.497 

06-23-2010 Phillips Companies LAKE 2010-478-M Pg.501 

06-23-2010 Aggregates USA LLC. SE 2010-258-M Pg.504 

06-23-2010 Asarco, LLC. WEST 2009-1124-M Pg. 508 

06-23-2010 Bowie Resources, LLC. WEST 2009-1203 Pg.512 

06-23-2010 7 /11 Materials, Inc. WEST 2010-393-M Pg. 515 

06-30-2010 Ray County Stone Producers, LLC. CENT 2010-88-M Pg.518 

06-30-2010 Enterprise Mining Company, LLC. KENT 2009-1409 Pg.522 

06-30-2010 L & S Construction Corporation LAKE 2010-332-M Pg.525 

06-30-2010 DJ Drilling and Blasting, Inc. SE 2009-807-M Pg.528 

06-30-2010 General Chemical (Soda Ash) Partners WEST 2009-1201-M Pg. 531 

06-30-2010 Elcon Construction, Inc. WEST 2009-1204-M Pg.534 

06-30-2010 Brody Mining, LLC. WEV A 2009-1445 Pg.537 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-04-2010 Abundance Coal, Inc. EAJ 2010-01 Pg.541 

05-13-2010 Consol Pennsylvania Coal Company PENN 2007-151 Pg.545 

05-14-2010 Arch of Wyoming, LLC. WEST 2008-1585 Pg.568 

05-14-2010 Blue Diamond Coal Company KENT 2008-14 Pg.581 

05-18-2010 Sec. Labor o/b/o Christopher Abeyta v. 

San Juan Coal Company & its successors CENT 2010-584-D Pg. 594 

05-21-2010 Prairie State Generating Co. LAKE 2009-711-R Pg.602 

06-01-2010 Sec. Labor o/b/o Rickey Joe Strattis 

V. ICG Beckley, LLC. WEVA 2010-991-D Pg.614 

06-03-2010 Sec. Labor o/b/o Rickey Joe Strattis 

V. ICG Beckley, LLC. (Amended) WEVA 2010-991-D Pg. 619 

i 
06-11-2010 Sec. Labor o/b/o Rickey Lee Campbell 

V. Marfork Coal Company, Inc. WEVA2010-1030-D Pg.621 

06-17-2010 Twentymile Coal Company WEST 2008-787-R Pg. 628 

06-17-2010 Spencer Quarries, Inc. CENT 2009-334-M Pg.644 

06-23-2010 Spencer Quarries, Inc. (Correcting Order) CENT 2009-334-M Pg.652 

06-17-2010 Independence Coal Company, Inc. WEV A 2009-1067 Pg. 654 

06-18-2010 Black Beauty Coal Company LAKE 2009-223 Pg.673 

06-18-2010 Coal River Mining, LLC. (On remand) WEV A 2006-125-R Pg.685 

06-29-2010 Shelton Brothers Enterprises (amended DAS) KENT 2008-1407 Pg.688 

06-30-2010 Manalapan Mining Co., Inc. KENT 2008-737 Pg.690 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-07-2010 Bill Simola emp. by United Taconite LAKE 2010-128-M Pg. 707 

05-26-2010 Orica USA, Inc. YORK2007-74-RM Pg. 709 

06-07-2010 Black Beauty Coal Company LAKE 2008-327 Pg. 714 

06-13-2010 Brody Mining, LLC. WEV A 2009-1445 Pg. 718 

06-15-2010 Sec. Labor o/b/o Jose Chaparro v. 

Comunidad Agricola Bianchi, Inc. SE 2010-295-DM Pg. 721 

06/15/2010 Maple Coal Company WEVA 2009-1440 Pg. 726 

06-28-2010 DJB Welding Corporation YORK 2009-89-M Pg. 728 

06-30-2010 Alaska Mechanical Inc. WEST 2008-1582-M Pg. 738 

06-02-2010 Performance Coal Company WEV A 2007460 Pg. 742 

ii 
MAY AND JUNE 2010 

Review was granted in the following cases during the months of May and June 2010: 

Secretary of Labor, MSHA v. Ames Construction, Inc., WEST 2009-693-M. (Judge Miller, March 

23, 2010.) 

Secretary of Labor, MSHA v. Black Beauty Coal Company, LAKE 2008-477. (Judge Miller, 

March 25, 2010.) 

Secretary of Labor, MSHA v. C & W Drilling Inc., SE 2009-794-M. (Judge Lesnick, unpublished 

settlement decision, April 5, 2010.) 

Prairie State Generating Company, LLC. v. Secretary of Labor, MSHA, LAKE 2009-711-R. 

(Judge Miller, May 21, 2010.) 

Secretary of Labor, MSHA v. Bill Simo la, employed by United Taconite, LLC., 

LAKE 2010-128-M. (Judge Feldman, interlocutory review of April 6, 2010 order.) 

Secretary of Labor, MSHA v. Black Beauty Coal Company, LAKE 2008-327. (Judge Miller, 

interlocutory review on May 18, 2010 order.) 

Secretary of Labor, MSHA v. Performance Coal Company, WEVA 2007-460, et al. (Judge Miller, 

June 2, 2010 scheduling order.) 

Review was denied in the following case during the months of May and Junel 2010: 

Secretary of Labor, MSHA v. Orchard Coal Company, et al., PENN 2010-339-E, etc. Review of a 

non-jurisdictional issue. 

Eastern Associated Coal LLC. filed a withdrawal of a Petition for Review in., WEV A 2008-1309, 

which was granted on May 12, 2010. 

iii 

COMMISSION DEQSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

IMERYS CLAY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May 5, 2010 

Docket No. SE 2009-717-M 

A.C. No. 09-00111-181267 

BEFORE: Jordan, Chairman; Duffy, 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. (2006) ("Mine Act"). On July 17, 2009, the Commission received from Imerys 

Clay, Inc. ("Imerys") a letter from the company's safety and health manager 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"). fu evaluating requests to 

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

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

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

See 29 C.F.R. § 2700. l(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). 

32 FMSHRC Page 435 
On April 7, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000181267 to Imerys. Imerys states that its 

accounts payable department sent a check to MSHA for the penalties that it did not wish to 

contest, but that the assessment form indicating the proposed assessments it did wish to, contest 

was not included with the payment. Imerys' health and safety manager states that he did not 

know about this failure until the company received a delinquency notice from MSHA. In its 

letter, Imerys identifies the ten proposed assessments that it seeks to reopen. 

The Secretary does not oppose Imerys' request to reopen. She notes that MSHA timely 

received payment in the amount of $1,918 from Imerys, but has no record of receiving the 

assessment contest form. She urges the operator to take all steps necessary to ensure that future 

penalty assessments are properly contested. 

Having reviewed Imerys' request and the Secretary's response, in the interests of justice, 

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

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

Part 2700. 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. 

Robert ·~ . F. Cohen, Jr., Comrmss1oner 

32 FMSHRC Page 436 
Distribution: 

Grayson J. Upton, CMSP 

Safety & Health Mngr., PPN, NA, 

Imerys Clays, fuc., 

P.O. Box 471, 

Sandersville, GA 31082 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 437 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND·HEALTH 

ADMINISTRATION (MSHA) 

v. 

SWINSON MATERIALS, JNC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

May 6, 2010 

Docket No. LAKE 2010-355-M 

A.C. No. 11-03120-200607 

BEFORE: Jordan, Chairman; Duffy, 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. (2006) ("Mine Act"). On January 19, 2010, the Commission received from 

Swinson Materials, Inc. ("Swinson") a letter 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(May1993) ("JWR''). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 438 
On October 15, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000200607 to Swinson, proposing civil 

penalties for four citations and one order. The operator's counsel states that Swinson did not 

receive a copy of the "final order" and was not aware of it until receipt of a fax on December 18, 

2009. 

The Secretary states that .the proposed penalty assessment was received and signed for by 

the operator on October 21, 2009, and provides a Federal Express document to support this 

statement. She opposes the request to reopen on the ground that the operator does not explain 

why it failed to contest the proposed assessment that it received and makes no showing of any 

circumstances that warrant reopening. 

Having reviewed Swinson's request to reopen and the Secretary's response, we agree 

with the Secretary that Swinson has failed to provide a sufficient explanation for its failure to 

timely contest theproposedpenalty assessment. Swinson's conclusory statement that it did not 

receive a copy of the final order and was not made aware of the final order until December 18, 

2009, does not explain why it failed to contest the proposed assessment that it received on 

October 21, 2009, in a timely manner. Thus, the operator has failed to provide the Commission 

with an adequate basis to reopen. Accordingly, we deny without prejudice Swinson's request. 

See, e.g., BRS Inc., 30 FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC, 30 

FMSHRC 392, 394 (May2008). 1 

1 If Swinson submits another request to reopen the case, it must establish good cause for 

not contesting the proposed assessment within 30 days from the date it received the proposed 

penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the 

existence of "good cause" may be shown by a number of different factors including mistake, 

inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the 

discovery of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party. 

Swinson should include a full description of the facts supporting its claim of"good cause," 

including how the mistake or other problem prevented Swinson from responding within the time 

limits provided in the Mine Act, as part of its request to reopen the case. Swinson should submit 

copies of supporting documents with its request to reopen the case. Finally, Swinson should 

clarify which citations and proposed penalties it intends to contest. 

32 FMSHR.C Page 439 
Any amended or renewed request by Swinson to reopen Assessment No. 000200607 must 

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

denied with prejudice. 

'ssioner 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 440. 
Distribution: 

Jim Hursh, Esq. 

Law office of Jim Hursh, P.C. 

600 South State St., Suite 309 

Belvidere, IL 61008 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 441 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May6,2010 

Docket Nos. PENN 2008-51-R 

PENN 2008-52-R 

PENN 2008-53-R 

PENN 2008-54-R 

CUMBERLAND COAL RESOURCES, LP 

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

DECISION 

BY: Jordan, Chairman; Young and Cohen, Commissioners 

In these contest proceedings arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"), Judge Michael Zielinski upheld a violation of 

30 C.F.R. § 75.363(a)1 alleged in an order issued to Cumberland Coal Resources, LP 

("Cumberland"). 31FMSHRC137, 157-58 (Jan. 2009) (ALJ). Cumberland filed a petition for 

discretionary review challenging the Judge's finding of violation, which the Commission 

granted. The Secretary of Labor subsequently filed a response acknowledging that the violation 

of section 75.363(a) should not be affirmed and requesting that the Commission amend the order 

1 30 C.F.R. § 75.363(a) provides in part: 

Any hazardous condition found by the mine foreman ... , assistant 

mine foreman ... , or other certified persons designated by the 

operator for the purpose of conducting examinations ... , shall be 

posted with a conspicuous danger sign where anyone entering the 

areas would pass. A hazardous condition shall be corrected 

immediately or the area shall remain posted until the hazardous 

condition is corrected .... 

32 FMSHRC Page 442 
to allege a violation of30 C.F.R. § 75.360(b).2 For the reasons that follow, we deny the 

Secretary's request, reverse the Judge's finding that Cumberland violated section 75.363(a), and 

vacate the order. 

I. 

Factual and Procedural Background 

Cumberland operates the Cumberland Mine, a large underground coal mine in Greene 

County, Pennsylvania. Id. at 137. On October 4, 2007, Barry Radolec, an inspector with the 

Department of Labor's Mine Safety and Health Administration ("MSHA''), conducted a regular 

inspection of the mine. Id. at 138. A few days prior to October 4, a belt move had occurred on 

the 8 Butt section of the mine. Tr. 242. Typically during a belt move, the area where the belt 

will be installed will be "fling dusted," that is, rock dust will be distributed by a fling duster 

placed on a scoop bucket. 31 FMSHRC at 155; Tr. 243. After the belt move, the area will be 

bulk dusted.3 31 FMSHRC at 155; Tr. 241. 

When Inspector Radolec arrived at the mine, he reviewed the preshi:ft and onshi:ft report 

books for the 8 Butt section of the mine. 31 FMSHRC at 138. He noticed several entries 

indicating that areas of the belt entry from crosscuts 25 to 30 and 11to15 needed to be rock 

dusted. Id.; Gov't Ex. 5. The inspector traveled to the 8 Butt section. 31 FMSHRC at 138. At 

the No. 17.5 crosscut, he observed that the belt had gone out of alignment and that a portion of 

the belt was rubbing the belt stand.4 Id. The belt was immediately taken out of service so that 

the alignment could be corrected. Id. 

Between crosscuts 25 and 30.5, Inspector Radolec observed accumulations of dry black 

float coal dust, coal fines, and loose coal. Id. The loose coal and coal fines were underneath the 

belt and between the crosscuts. Id. There was a thin layer of float coal dust on the belt 

structures, electric cables, and switches. Id. The float coal dust was deposited on rock dust, 

which Radolec considered to be token in amount. Id. Radolec determined that the condition was 

highly likely to result in a fire that would cause fatalities because the belt presented a potential 

ignition source, and there were electrical cables, boxes,·and switches present. Id. Accordingly, 

the inspector issued Citation No. 7025468, alleging a violation of30 C.F.R. § 75.400, for failure 

2 30 C.F.R. § 75.360(b) provides in part that "The person conducting the preshi:ft 

examination shall examine for hazardous conditions .... " 

3 To perform bulk dusting, miners use tanks which blow rock dust through the air. 31 

FMSHRC at 141 n.4; Tr. 235. . 

4 Radolec issued Citation No. 7025467, alleging a violation of 30 C.F.R. § 75.l 725(a), 

for failure to maintain machinery in a safe condition. Id. at 138 n.l. That citation is not at issue 

on review. 

32 FMSHRC Page 443 
to clean up combustible materials. Id. at 139. The inspector indicated that the violation was 

significantand substantial ("S&S")5 and caused by the operator's unwarrantable failure to 

comply with the standard.6 Id. at 139. The inspector specified that the violation was to be abated 

later that day. Gov't Ex. 4, at 1. 

fuspector Radolec also issued Order No. 7025469, alleging an S&S and unwarrantable 

violation of section 75.363(a). 31 FMSHRC at 139. The order alleged that Cumberland had 

"failed to correct immediately a hazardous condition reported in the pre-shift examination book," 

and identified that condition as that the 8 Butt conveyor belt needed to be rock dusted between 

crosscuts 25 and 30. Gov't Ex. 6, at 1. 

The operator challenged Citation No. 7025468, which alleged a violation of section 

75.400, and Order No. 7025469, which alleged a violation of section 75.363(a), in addition to 

other orders not relevant onreview. See Tr; 12-18. The matter proceeded to hearing before 

Judge Zielinski. 

The Judge vacated the special findings and affirmed the violations of section 75.400 and 

75.363(a) alleged in Citation No. 7025468 and Order No. 7025469, respectively.7 31 FMSHRC 

at 140-58. With respect to Citation No. 7025468, the Judge concluded that Cumberland had 

violated section 75.400 based on his findings that loose coal and coal fines were present across 

nearly the entire width of the belt entry in several locations from the No. 25 to the 30.5 crosscuts, 

and that float coal dust existed on some horizontal surfaces. Id. at 142. The Judge also 

concluded that the area had not been fling dusted after the belt move, and that bulk rock dusting 

had not progressed to the area. Id. He determined that the violation was not S&S, however. Id. 

at 143. The Judge reasoned that although the accumulations presented a hazardous condition by 

contributing to, or exacerbating, the occurrence of a fire or explosion, the Secretary had failed to 

prove a.reasonable.likelihood that the hazard contributed to would result in an injury. Id; He 

also concluded that the violation was not unwarrantable based in part on his finding that preshift 

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

§ 814(d)(l), 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." 

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

U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by 

"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety 

standards." 

7 Because the Judge vacated the special findings, he modified Order No. 7025469 to a 

citation issued under section 104( a) of the Act. 31 FMSHRC at 157-58, 166. We refer to the 

enforcement action as an order rather than as a citation only as a matter of convenience to better 

distinguish Order No. 7025469 from Citation No. 7025468. 

32 FMSHRC Page 444 
reports indicating that the area in question needed to be rock dusted did not demonstrate that the 

examiners considered the area to be hazardous. Id. at 156-57. 

With respect to Order No. 7025469, the Judge determined that the notations in the 

preshift reports that areas of the belt entry needed to be rock dusted did not report a hazardous 

condition that required immediate correction. Id at 157. Nonetheless, the Judge held that 

Cumberland violated section 75.363(a) because the accumulations underlying Citation No. 

7025468 were hazardous, and Cumberland should have identified and reported the accumulations 

in the preshift reports. Id. at 157-58. The Judge also concluded that Cumberland's violation of 

section 75.363(a) was not S&S and was not caused by an unwarrantable failure to comply for the 

same reasons that he found that the accumulations violation was not S&S or unwarrantable. Id. 

at 158. 

Cumberland filed a petition for discretionary review with the Commission, challenging 

the Judge's determination that it had violated section 75.363(a), and filed a motion requesting 

oral argument. The Commission granted Cumberland's petition and motion and heard oral 

argument. 

In its petition, Cumberland argues that the Judge erred in finding a violation of section 

75.363(a). It asserts that the basis for the Judge's finding of violation, that is, that Cumberland 

had failed to identify and report accumulations, was flawed since section 75.363(a) does not 

require the identification and reporting of hazardous conditions. C. Br. at 9-11. The operator 

also asserts that it was deprived of due process because the Judge determined that there was a 

violation on a basis other than what the Secretary alleged, and the parties did not address the 

issue of whether the accumulations were a condition that had to be reported as hazardous. Id. at 

14-15, 19. Cumberland states that it would have offered other evidence concerning how certified 

officials interpret "hazard" if the issue had been presented during the hearing. Id. at 19-20. It 

maintains that, in any event, the accumulations were not hazardous. Id. at 20-23. 

The Secretary concedes on appeal that the violation of section 75.363(a) should not be 

affirmed, but maintains that the order should now be amended to allege a violation of section 

75.360(b). S. Br. at 2, 9. She states that under Fed. R. Civ. P. 15(b), absent prejudice to the nonmoving party, pleadings may be conformed to the evidence if the nonpleaded issue was litigated 

by express or implied consent of the parties. Id. at 17-18. The Secretary contends that the 

factual issues underlying a section 75.360(b) violation were actually litigated in the S&S and 

unwarrantable failure determinations in connection with the accumulations violation. Id. at 11, 

18. The Secretary dismisses Cumberland's argument that it would have offered different 

evidence and arguments if it had known that the adequacy of the preshift examinations was at 

issue, maintaining that a party asserting prejudice must do so with specificity. Id. at 18. 

Cumberland replies that the Commission should deny the Secretary's request to amend 

the order to allege a violation of section 75.360(b). C. Reply Br. at 7. It submits that Rule 15(b) 

of the Federal Rules should not be applied to citations and orders because they differ from civil 

32 FMSHRC Page 445 
pleadings in that they must describe conditions with particularity and they require abatement. Id. 

at 3-4. It also asserts that the parties have not litigated the issue of whether Cumberland violated 

section 75.360(b ), and that granting the Secretary's request would result in significant prejudice 

to Cumberland. Id. at 7. Cumberland explains that if it had. defended allegations that it violated 

section 75.360(b), it would have presented evidence regarding whether a reasonable mine 

examiner would have considered the accumulations to be hazardous such that they required 

reporting in a preshift book. Id. at 7-21. Accordingly, Cumberland requests that the Commission 

reverse the Judge's finding of violation with respect to Order No. 7024569. Id. at 21. 

II. 

Disposition 

The central question on review is whether we should grant the Secretary's request to 

amend Order No. 7025469 to allege a violation of section 75.360(b). We conclude that, even if 

the evidence adduced at trial supports a violation of section 75.360(b) as the Secretary asserts, 

that was not the violation charged or defended against, and there is no basis to justify amendment 

at this stage in the proceedings. 

The Secretary is seeking to amend the order after the Judge has issued his decision to 

allege that Cumberland had not recorded accumulations in the preshift examination book in 

violation of section 75.360(b ). However, section 75 .360(b) sets forth requirements that are 

different than those set forth in section 75.363(a). While section 75.363(a) requires that a 

hazardous condition be immediately corrected or posted, section 7 5 .360(b) essentially requires a 

preshift examiner to find and record a hazardous condition in a preshift examination book. See 

RAG Cumberland Res., LP, 26 FMSHRC 639, 651, 653 (Aug. 2004); Enlow Fork Mining Co., 

19 FMSHRC 5, 14 (Jan. 1997). If Order No. 7025469 were amended to allege a violation of 

section 7 5 .360(b ), Cumberland would necessarily rely upon different evidence to defend the 

violation. In addition, the operator would be required to take different measures to abate such an 

order. Thus, the Secretary is seeking to amend the order to allege a violation of a different 

standard based on different underlying facts which would require different abatement action after 

Cumberland has defended a violation of section 75.363(a) at hearing. 

The Secretary relies_on Federal Rule of Civil Procedure 15(b)(2) to justify an amendment 

to the citation. Fed. R. Civ •. P. 15(b)(2).8 The Commission's procedural rules provide that "[t]he 

8 Rule l 5(b )(2) provides: 

When an issue not raised by the pleadings is tried by the parties' 

express or implied consent, it must be treated in all respects as if 

raised in the pleadings. A party may move - at any time, even after 

judgment - to amend the pleadings to conform them to the 

32 FMSHRC Page 446 
Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil 

Procedure and the Federal Rules of Appellate Procedure." 29 C.F.R. § 2700.l The Commission 

has previously recognized that although the Commission's procedural rules do not address 

amendment of pleadings, the Commission may properly look for guidance to Fed. R. Civ. P. 15 

when the Secretary requests leave to amend a citation or order. Cyprus Empire Corp., 12 

FMSHRC 911, 916 (May 1990). Accordingly, in our jurisprudence we have considered Rule 

15(b) in several contexts. Compare Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar. 

1998) (concluding that the Secretary could not amend a citation post-hearing to include a new 

theory of violation regarding the cited standard because the trial record did not reflect that the 

operator understood, or should have understood, that the new theory was being litigated) with 

Faith Coal Co., 19 FMSHRC 1357, 1362 (Aug. 1997) (permitting a citation to be amended after 

hearing to correct a numbering error by the Secretary because the operator fully understood the 

gravamen of the correct standard, knowingly litigated the citation on that basis, and suffered no 

prejudice). In this case, we conclude that to the extent that Rule 15(b) permits post-hearing 

amendment in some cases, it does not apply to the circumstances here.9 

Under Rule l 5(b ), amendments are permitted so that pleadings mirror the actual issues 

that were tried. 3 James Wm. Moore et al., Moore's Federal Practice if 15.18[1], at 15-73 (3d ed. 

2002) ("Moore's"). In permitting a complaint to be amended post-hearing to include an issue 

that had not been raised, courts require a showing that the issue was tried with the express or 

implied consent of the parties. Id. Implied consent may be found if the opposing party 

recognized that a new matter was at issue during the trial and that evidence was introduced to 

prove that issue. Id. at 15-75. Courts may not find implied consent ''when evidence supporting 

an issue allegedly tried by implied consent is also relevant to other issues actually pleaded and 

evidence and to raise an unpleaded issue. But failure to amend 

does not affect the result of the trial of that issue. 

9 We respectfully disagree with the suggestion of our colleague, Commissioner Duffy, 

that after abatement and termination, a citation or order may only be modified "in cases involving 

purely technical errors" such as Faith Coal Co., which involved a numbering error. Slip op. at 

11. Our precedent has clearly established that the fact of an operator's abatement of a violation 

does not prevent it from being modified pursuant to Fed. R. Civ. P. 15 for more than purely 

technical purposes, in appropriate circumstances. See Cyprus Empire, 12 FMSHRC at 916 

(affirming judge's action permitting the Secretary to modify a citation and holding that "[a]mong 

the permissible purposes of such amendments are changes in the nature of the plaintiffs claims 

or legal theories"); Wyoming Fuel Co., 14 FMSHRC 1282, 1288-90 (Aug. 1992) (reversing 

judge's conclusion that a citation may not be modified to allege a violation under a different 

standard after abatement and termination of original citation, holding that modification is 

permissible under Fed. R. Civ. P. 15(a), absent legal prejudice to the operator, because "a citation 

or order, even though terminated, remains in effect for purposes of subsequent contest and civil 

penalty proceedings"), on remand 15 FMSHRC 1107 (June 1993) (AU) (granting modification 

since operator failed to show legally recognizable prejudice). 

32 FMSHRC Page447 
tried." Id.; Acequia, Inc. v. Clinton, 34 F.3d 800, 814 (9th Cir.1994). fu determining implied 

consent, courts also consider whether the opposing party had a fair opportunity to defend against 

the issue and would be prejudiced in presenting its case. Moore's~ 15.18[1] at 15-76. 

The record cannot reasonably be read to support the conclusion that Cumberland 

implicitly consented to litigating a violation of section 7 5 .360(b ). 10 Similar to the operator in 

Consolidation Coal, the trial record does not reflect that Cumberland understood that the 

Secretary was litigating a violation of section 7 5 .360(b ). 11 

Rather, it is clear from the record that Cumberland defended Order No. 7025469 on the 

basis that it did not violate section 75.363(a). Specifically, Cumberland presented evidence that 

the failure to rock-dust was recorded in the preshift examination book as a condition, rather than 

as a hazard, 12 and that Cumberland employees were addressing the condition described in the 

preshift examination book in a systematic, regular .fashion in accordance with the priority they 

accorded such a non-hazardous condition. Tr. 21-22, 228-30, 233-34, 241, 248, 251-52, 254-55, 

434; C. Ex. 3; Gov't Ex. 5 at 49, 58, 78. 

Cumberland's counsel did not elicit testimony regarding whether the preshift 

examinations had been adequate. Indeed, Cumberland's counsel clarified that the operator was 

not defending a preshift examination violation by asking Inspector Radolec, "Did you cite 

Cumberland for putting inadequate entries in the book?" Tr. 164. Inspector Radolec testified, 

"No, I didn't." Tr. 164. 

The Secretary seeks to support her unpleaded claim that Cumberland violated section 

75.360(b) by relying on evidence that was proffered to prove a pleaded issue, that is, the S&S 

and unwarrantable violation of section 75.400 alleged in Citation No. 7025468. The Secretary 

specifies that the violation of section 75.360(b) rests on three factual findings that the Judge 

made with respect to the special findings associated with the accumulations violation. S. Br. at 

11 (stating that the Judge made "three key factual findings ... during the course of his S&S and 

unwarrantable failure analyses in connection with the accumulations violation" that are supported 

10 It is undisputed that Cillnberland did not expressly consent to litigating a violation of 

section 75.360(b ). 

11 In her post-hearing brief, the Secretary argued that the operator had violated section 

75.363(a) and made no mention of section 75.360(b). S. Post-lli'g Br. at 21-23. fu fact, the 

Secretary noted that the notations, "needs dust[ing]," set forth in the preshift examination books 

"arguably implicates the adequate preshift provisions of30 C.F.R. § 75.360(a)," not section 

75.360(b). Id. at 22 n.3. 

12 The preshift books used by Cumberland contain two separate sections. One is entitled 

"Violations Observed and Reported/Violation or Condition," and one is for "Dangers and 

Hazardous Conditions Observed and Reported." Tr. 100; Gov't Ex. 5. 

32 FMSHRC Page 448 
by substantial evidence and establish a violation of section 75.360(b )); see also S. Br. at 3. As 

noted above, when evidence is relevant to a pleaded issue, it may not be used to support implied 

consent to litigate an unpleaded issue. See Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 401 

(4th Cir. 1999), cert. denied, 528 U.S. 1155 (2000) ("'A court will not imply consent to try a 

claim merely because evidence relevant to a properly pleaded issue incidentally tends to establish 

an unpleaded claim."') (citations omitted). 

Basically, Cumberland has had no fair opportunity to defend against an allegation that it 

violated section 75.360(b ). The Secretary had ample opportunity to move to amend the order 

prior to the hearing, during the hearing, or in her post-hearing brief. However, the Secretary did 

not move to amend the order until the Secretary filed her response brief on review. S. Br. at 2. 

The first time that the Secretary specifically referred to evidence to support her claim that 

Cumberland impliedly consented to litigating a violation of section 75.360(b) was during oral 

argument before the Commission, after all briefs with the Commission had been filed. Oral Arg. 

Tr. at 27-37, 42-50. Amending the order at this stage of the proceedings would be contrary to 

concepts of fundamental fairness that require that every litigant receive adequate notice of 

charges made against it. 

Moreover, Cumberland has adequately demonstrated that it would be prejudiced if the 

order were amended to allege a violation of section 75.360(b). Cumberland argues that if the 

Secretary had alleged a violation of section 75.360(b), it would have presented different evidence 

in its defense. C. Reply Br. at 19. It contends that it would have presented evidence regarding 

whether a reasonable mine examiner would have considered the accumulations to be hazardous 

such that they required reporting in the preshift book. Id. No preshift examiners gave testimony 

at the hearing. In fact, Inspector Radolec acknowledged that he had not questioned a single 

preshift examiner about what was intended by the notation "needs dusted." Tr. 164. 

As noted, the Secretary agreed with Cumberland that the Judge had, in fact, erred in 

finding a violation of section 75.363(a). See S. Br. at 9 ("The Secretary acknowledges that the 

ALJ's finding of a violation under section 75.363(a) should not be affirmed."). We suggest that 

after making this determination, the Secretary should not have opposed Cumberland's petition 

challenging the violation. 13 Accordingly, given the Secretary's concession and our conclusion 

that the order should not be amended to allege a violation of section 75.360(b ), we reverse the 

Judge's determination that Cumberiand violated section 75.363(a) and vacate Order No. 

7025469. 

13 We are reminded that, "A government lawyer 'is the representative not of an ordinary 

party to a controversy, ... but of a sovereignty whose obligation ... is not that it shall win a case, 

but that justice shall be done."' Freeport-McMoran Oil & Gas Co. v. FERC, 962 F.2d 45, 47 

(D.C. Cir. 1992) (citing Berger v. United States, 295 U.S. 78 (1935)). 

32 FMSHRC Page 449 
m. 

Conclusion 

For the foregoing reasons, we deny the Secretary's request to amend Order No. 7025469 

to allege a violation of section 75.360(b), reverse the Judge's determination that Cumberland 

violated section 75.363(a), and vacate Order No. 7025469. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 450 
Commissioner Duffy, concurring: 

I, too; would deny the Secretary's request to amend Order No. 7025469, reverse the 

Judge's finding of a violation of section 75.363(a), and vacate the order, but I would do so on 

more fundamental grounds. The explicit language of section 104(a) of the Mine Act precludes 

amendment of the order in these circumstances, so recourse to Federal Rule of Civil Procedure 

l 5{b) would be foreclosed in this instance. 

As Cumberland asserts, citations and orders issued pursuant to section 104 of the Mine 

Act differ in form and function from pleadings filed in civil cases. Section 104(a) requires that a 

citation "describe with particularity the nature of the violation, including a reference to the ... 

standard ... alleged to have been violated." 30 U.S.C. § 814(a). The purpose of the particularity 

requirement in section 104(a) is not only to permit the cited operator to "adequately prepare for a 

hearing on the matter," but also to allow it ''to discern what conditions require abatement." 

Empire Iron Mining Partnership, 29 FMSHRC 999, 1003 (Dec. 2007) (citations omitted). 

fu contrast, in accordance with the notice pleading standards applicable to civil cases, 

complaints need only allege a claim for relief in "a short and plain statement." See Fed. R. Civ. 

P. 8(a). Thus, while a citation or order requires an operator to abate the alleged violative 

condition prior to resolution of the enforcement action, a federal civil complaint does not. 

Termination of a citation or order signals that the operator has abated the violative 

condition, and that the operator is not subject to a section 104(b) withdrawal order for failure to 

abate that citation. Wyoming Fuel Co., 14 FMSHRC 1282, 1288 (Aug. 1992). Consequently, 

notwithstanding that the Commission has held that the Secretary may modify a terminated 

citation or order in some circumstances, the Secretary may not modify a terminated citation or 

order to direct further abatement. Id. at 1289. 

Order No. 7025469 alleges a violation of section 75.363(a), and provides in part that the 

"operator failed to correct immediately a hazardous condition reported in the preshift 

examination book," and that the hazardous condition reported was that the area from crosscut 

Nos. 25 to 30 needed to be rock dusted. Gov't Ex. 6. fu order to abate the order, Cumberland's 

mine foreman received instruction about immediately correcting or posting off the allegedly 

hazardous condition. Id. The order was then terminated on October 4, 2007. Id. Cumberland 

defended against the order by presenting evidence to show that the condition reported in the 

preshift book (the need for rock-dusting) was not hazardous and did not require immediate 

corrective action or posting under section 75.363(a). C. Reply Br. at 20. 1 

1 As my colleagues correctly conclude, the record cannot support the Secretary's 

assertion that Cumberland impliedly consented to litigating a violation of section 75 .360(b ). See 

Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar. 1998) (concluding that the Secretary 

could not amend a citation post-hearing to include a new theory of violation regarding the cited 

32 FMSHRC Page 451 
Given the Commission's decision in Empire Iron, supra, I am not convinced that the 

Secretary or the Commission has much latitude to amend a citation or order once abatement has 

been completed and the citation or order has been terminated, much less in the instant case, 

where the alleged violation has also already been defended at hearing. The only exception would 

be in cases involving purely technical errors. See, e.g., Faith Coal Co., 19 FMSHRC 1357, 1362 

(Aug. 1997) (permitting a citation to be amended post-hearing to correct a numbering error by 

the Secretary because the operator fully understood the gravamen of the correct standard, 

knowingly litigated the citation on that basis, and suffered no prejudice). It may well be that the 

requirement of specificity in section 104( a), including citing ''with particularity'' the standard 

alleged to have been violate.d, may trump any further leeway to be afforded the Secretary under 

the aegis of Rule lS(b).2 

Consequently, in this case the Mine Act provision certainly forecloses the relief the 

Secretary seeks under Rule lS(b), and I join with my colleagues in expressing some 

consternation with her decision to oppose the petition for review and attempt to have the order 

amended so late in the proceeding. 

standard because the trial record did not reflect that the operator understood, or should have 

understood, that the new theory was being litigated). 

2 While my colleagues cite cases in which the Commission has permitted more than a 

technical amendment to a citation or order (see slip op. at 6 n.9), in doing so the Commission 

was not directly confronted with an operator's claim that amendment meant it had been required 

to unnecessarily abate an alleged violation. That claim has been made here (see C. Reply Br. at 

20), and, given the importance of abatement under the Mine Act, goes to the heart of the concept 

of"prejudice" that courts examine when deciding to permit amendment under Rule 15(b). 

32 FMSHRC Page 452 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

Edward Waldman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor West 

Arlington, VA 22209-2247 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd.,. Room 2220 

Arlington, VA 22209-2296 

Myra James,Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA ~2209-3939 

Michael Zielinski 

Administrative Law Judge 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 453 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ORCHARD COAL COMPANY, 

S & M COAL COMP ANY, 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

May 11, 2010 

Docket No. PENN 2010-339-E 

Docket No. PENN 2010-340-E 

Docket No. PENN 2010-342-E 

Docket No. PENN 2010-343-E 

ALFRED BROWN COAL COMP ANY, 

and B & B COAL COMPANY ,• 

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

ORDER DENYING PETITION FOR DISCRETIONARY REVIEW 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). The petition for discretionary review filed in this, matter by 

Orchard Coal Company, S&M Coal Company, Alfred Brown Coal Company, and B&B Coal 

Company (hereinafter "Anthracite Operators"), 1 states that the Mine Safety and Health 

Administration is enforcing Mine Act requirements in a way that has denied the Anthracite 

Operators the opportunity to seek modification of the requirements under section 101 ( c) of the 

Act, 30 U.S.C. § 81 l(c). The Anthracite Operators thus include within their petition for review a 

petition for relief under section lOl(c). 

1 The petition also was filed on behalf ofRS&W Coal Company, Inc., and purports to 

seek review in Docket No. PENN 2010-103-E of RS&W Coal Co., 31FMSHRC1440 (Dec. 

2009) (ALJ). Under section 113( d)(2) of the Mine Act, review of that decision could only be 

ordered by the Commission, pursuant to petition by RS& W or sua sponte, within 30 days of the 

decision's issuance. See 30 U.S.C. § 823(d)(2). Because RS&W did not seek review, and the 

Commission did not order review sua sponte, the decision became a final decision of the 

Commission 40 days later. See 30 U.S.C. § 823( d)(l ). Accordingly, this order only addresses 

the timely petition for review filed by the Anthracite Operators in the remaining cases. 

32 FMSHRC Page 454 
The Commission is without jurisdiction to entertain a petition for relief under section 

lOl(c). The statute clearly states that such petitions are to be directed to the Secretary of Labor, 

and the modification process is the sole province of the Secretary or her designee.2 

Consequently, the relief the Anthracite Operators seek under section lOl(c) can only be granted 

by the Secretary. 

2 Section 101 ( c) provides: 

Upon petition by the operator or the representative of 

miners, the Secretary may modify the application of any mandatory 

safety standard to a coal or other mine if the Secretary determines 

that an alternative method of achieving the result of such standard 

exists which will at all times guarantee no less than the same 

measure of protection afforded the miners of such mine by such 

standard, or that the application of such standard to such mine will 

result in a diminution of safety to the miners in such mine. Upon 

receipt of such petition the Secretary shall publish notice thereof 

and give notice to the operator or the representative of miners in 

the affected mine, as appropriate, and shall cause such 

investigation to be made as he deems appropriate. Such 

investigation shall provide an opportunity for a public hearing at 

the request of such operator or representative or other interested 

party, to enable the operator or the representative of miners in such 

mine, or other interested party to present information relating to the 

modification of such standard. Before granting any exception to a 

mandatory safety standard, the findings of the Secretary or his 

authorized representative shall be made public and shall be 

available to the representative of the miners at the affected mine. 

The Secretary shall issue a decision incorporating his findings of 

fact therein, and send a copy thereof to the operator or the 

representative of the miners, as appropriate. Any such hearing 

shall be ofrecord and shall be subject to section 554 of title 5 of 

the United States Code. 

30 U.S.C. § 81 l(c). 

32 FMSHRC Page 455 
No two Commissioners having voted to grant the petition for review on the issues over 

which the Commission does have jurisdiction, it is denied. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 456 
Distribution 

Bradley S. Tupi. Esq. 

Kenneth G. Scholtz. Esq. 

Tucker Arensburg, PC 

1500 One PPG Place 

Pittsburgh, PA 15222 

Stephen D. Turow, Esq. 

Lynny Bowman Dunbar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Administrative Law Judge Alan Paez 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 457 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CEMEX, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 3, 2010 

Docket No. SE 2010-426-M 

A.C. No. 40-00840-201713 

Docket No. SE 2010-427-M 

A.C. No. 40-00840-202198 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 18, 2010, the Commission received from 

Cemex, Inc. ("Cemex") motions made by counsel seeking to reopen two penalty assessments that 

had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815{a).1 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

consolidate docket numbers SE 2010-426-M and SE 2010-427-M, both captioned Cemex, Inc., 

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

32 FMSHRC Page 458 
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

The record indicates that the two assessments were issued by MSHA within a week of 

each other, and received at the Cemex plant in Knoxville, Tennessee, after that plant's health and 

safety manager had left Cemex and before a successor had been hired. Consequently, the health 

and safety manager of another Cemex plant, after reviewing both assessments, tried to instruct 

Cemex staff in Knoxville that certain of the penalties on one of the assessments should be paid, 

while other penalties on both assessments should be contested. Cemex staff paid the penalties as 

instructed, but neglected to contest the remaining penalties on the two assessments. This error 

was discovered by the new Knoxville health and safety manager once delinquency notices from 

MSHA were received regarding the assessments, and the motions to reopen were filed soon 

thereafter. 

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

assessments so that Cemex can contest the unpaid penalties. 

32 FMSHRC Page 459 
Having reviewed Cemex' s requests and the· Secretary's responses, in the interests of 

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

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

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

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

~Nakamura, Commissioner 

32 FMSHRC Page 460 
Distribution: 

Denise E. Giraudo, Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart, P .C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J runes, Chief 

Office of Civil Penalty Compliance, MSiIA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 461 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCKHOUSE CREEK 

DEVELOPMENT, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

June 3, 2010 

Docket No. WEVA2010-648 

A.C. No. 46-08636-206152 

Docket No. WEV A 2010-649 

A.C. No. 46-08778-206154 

Docket No. WEV A 2010-650 

A.C. No. 46-09018-206158 

Docket No. WEVA 2010-651 

A.C. No. 46-09279-206161 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 22, 2010, the Commission received from 

Rockhouse Creek Development, LLC ("Rockhouse") four motions made by counsel to reopen 

penalty assessments that had become final orders of the Commission pursuant to section 105(a) 

of the Mine Act, 30 U.S.C. § 815(a). 1 

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

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

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

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

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

consolidate docket numbers WEVA 2010-648, WEV A 2010-649, WEVA 2010-650, and WEVA 

2010-651, all captioned Rockhouse Creek Development, LLC, and all involving similar 

procedural issues. 29 C.F.R. § 2700.12. 

32 FMSHRC Page 462 
We have held that, in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under se_ction 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

According to the record, this matter is before the Commission only because the four 

contest forms were mailed by Rockhouse on January 22, 2010, to the Department of Labor's 

Mine Safety and Health Administration (''MSHA"), when the 30th day was January 21, 2010. 

Rockhouse's counsel states that he only received the assessments from his client on January 20, 

2010, and was out of the office until two days later.2 

The Secretary of Labor does not oppose reopening. 

2 In a footnote in its motion, Rockhouse states that because MSHA mailed the 

assessment, Commission Procedural Rule 8(b), 29 C.F.R. § 2700.S(b), should apply and the 

operator should have been accorded an additional five days in which to file the notices of contest 

Rockhouse is mistaken regarding the applicability of Rule 8(b) to penalty assessments. See The 

Banner Co., 31FMSHRC1046, 1047 n.1(Sept.2009). 

32 FMSHRC Page 463 
Having reviewed Rockhouse's requests and the Secretary's response, in the interests of 

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

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

Part 2700. Accordingly, consistent with Rule 28, the Secretary ~hall file a petition for assessment 

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

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 464 
Distribution: 

Matthew H. Nelson, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 465 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 4, 2010 

Docket No. WEVA 2010-195 

A.C. No. 46-08436-188167 

PERFORMANCE COAL COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On November 6, 2009, the Commission received from 

Performance Coal Company ("Performance") a motion 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(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l{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 

32 FMSHRC Page 466 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

merits permitted. See Coal Prep. Servs., Inc., 17FMSHRG1529, 1530 (Sept. 1995). 

On June 16, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000188167 to Performance, proposing penalties for 

62 violations totaling $95,627. According to its motion, after Performance received the 

assessment, its safety director stamped the date on which he personally received the proposed 

assessment on the form and forwarded it to Performance's corporate counsel, who mailed the 

form to MSHA's Civil Penalty Compliance Office within 30 days of the stamp date. 

Performance was notified of the delinquency when it received a notice from MSHA on or about 

September 17, 2009, which caused Performance to file its motion to reopen. 

The Secretary of Labor, who does not oppose Performance's request, states that MSHA 

has no record of receiving the notice of contest. She notes that the 30-day period for filing a 

contest begins to run from the date of the operator's actual receipt of the proposed assessment, 

not the date on which the operator stamps the form. She also notes that the operator paid the 

penalties for this case in full by check dated November 6, 2009. The operator did not respond to 

the Secretary's statement that the penalties in this case have been paid. 

32 FMSHRC Page 467 
Having reviewed Performance's motion and the Secretary's response, we find the request 

to reopen to be moot. The operator has paid the penalties in full. Accordingly, this case is 

dismissed. See Riverton Investment Corp., 31 FMSHRC 1067 (Oct. 2009). 

Robert F. Cohen, Jr., Commissioner 

~<==· Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 468 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 469 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

C & P SAND & GRAVEL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 10, 2010 

Docket No. CENT 2010-435-M 

A.C. No. 41-03347-196838 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 20, 2010, the Commission received from 

C & P Sand & Gravel, Inc. ("C&P") a letter by counsel to reopen a penalty assessment that had 

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

§ 815(a). On February 12, 2010, the Commission received a response from the Secretary of 

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

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

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

penalty assessment. If the operator fails to notify the Secretary, the pr9posed penalty assessment 

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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 

32 FMSHRC Page 470 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

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

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

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. 

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 471 
Distribution: 

Pedro P. Garcia, Esq. 

C & P Sand & Gravel, Inc. 

5350 S. Staples, Suite 308 

Corpus Christi, TX 78411 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 472 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LEHIGH CEMENT COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

W.ASHINGTON, DC 20001 

June 10, 2010 

Docket No. PENN 2010-256-M 

A.C. No. 36-00185-203701 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 15, 2010, the Commission received from Lehigh 

Cement Company ("Lehigh") a motion seeking to reopen a penalty assessment that had become a 

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700. l(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). 

32 FMSHRCPage 473 
Counsel for the operator states that Lehigh intended to contest the penalties for Citation 

Nos. 6538295, 6538296, 6538299, 6538300 set forth on Proposed Assessment No. 000203701, 

but that counsel was unaware that Lehigh had included i:he proposed assessment among other 

materials forwarded to counsel because the assessment was mis-filed by a temporary clerical 

assistant. Counsel inadvertently failed to timely contest the penalties on the operator's behalf, 

and the proposed assessment became a final Commission order. When the operator's counsel 

realized the mistake by reviewing information on the website of the Department of Labor's Mine 

Safety and Health Admillistration ("MSHA"), Lehigh promptly sought re-opening. 

Although the Secretary does not oppose the reopening of the proposed penalty, she 

strongly urges counsel to take steps to ensure that all penalty contests are timely and properly 

filed. 

Having reviewed Lehigh's request and the Secretary's response, in the interests of justice, 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

~k Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 474 
Distribution: 

Michael T. Heenan, Esq. 

Ogletree, Deakins, Nash 

Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 475 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCKY POINT ROCK, INC. 

SUITE 9500 

WASHINGTON, DC 20001 

June 10, 2010 

Docket No. SE 2010-396-M 

A.C. No. 40-03223-196479 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 26, 2010, the Commission received from Rocky 

Point Rock, Inc. ("Rocky Point") a request to reopen a penalt)r assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 476 , 
The Department of Labor's Mine Safety and Health Administration (''MSHA") issued 

Proposed Assessment No. 000196479 to Rocky Point on September 9, 2009, for various 

citations. Rocky Points states that although MSHA's records reflect that it received the proposed 

assessment on September 14, 2009, the operator did not, in fact, receive Proposed Assessment 

No. 000196479 until October 13, when it was included in an envelope with Assessment No. 

000199808. Rocky Point states that it returned both assessment forms to MSHA on October 19, 

2009. The operator states that it subsequently received a delinquency notice from MSHA as to 

Proposed Assessment No. 000196479, informing it that the proposed assessment had become a 

final Commission order. 

The Secretary does not oppose reopening the proposed penalty assessment. However, she 

acknowledges that MSHA's records reflect that the operator received Proposed Assessment 

No. 000196479 on September 14, 2009. 1 

1 It is not entirely clear from the record which proposed penalties Rocky Point wishes to 

contest. The citations listed on the cover of the operator's request to reopen do not correspond 

with all of the citations checked for contest on the proposed assessment form. In addition, the 

operator contends that it wishes to challenge penalties in the amount of $3,088, but the penalties 

checked for contest total a sum of$4,003. 

32 FMSHRC Page 477 
Having reviewed Rocky Point's request and the Secretary's response, in the interests of 

justice, we remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Rocky Point's failure to timely contest the penalties and whether 

relief from the final order should be granted. If it is-determined that relief from the final order is 

appropriate, this case shall proceed pursuant to th,e Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. § 2700. 

Robert F. Cohen, Jr., Commissioner 

~l- Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 478 
Distribution: 

Nichelle Young, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlin~on, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 479 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

June 10, 2010 

Docket No. WEST 2010-465-M 

A.C. No. 45-03281-196170 

MILES SAND & GRAVEL COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 29, 2009, the Commission received from 

Miles Sand & Gravel Company ("Miles") a letter seeking to reopen a penalty assessment that had 

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

§ 815(a). On January 20, 2010, the Commission received a response from the Secretary of Labor 

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

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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 

32 FMSHRC Page 480 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed the facts and circwnstances of this case, the operator's request, and the 

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

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

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

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

§ 2700.28. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 481 
Distribution: 

Kevin Davis 

Safety Coordinator 

Miles Sand & Gravel·Co. 

1220 M St. S. E. 

Auburn, WA 98001 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 482 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE; NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 10, 2010 

Docket No. WEST 2010-573-M 

A.C. No. 02-01222-202231 

HANSON AGGREGATES ARIZONA, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 22, 2010, the Commission received from 

Hanson Aggregates Arizona, Inc. ("Hanson") a letter seeking to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). On February 18, 2010, the Commission received a response from the Secretary 

of Labor stating that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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 

32 FMSHRC Page 483 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

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

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

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. 

Robert F. Cohen, Jr., Commissioner 

~L Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 484 
Distribution 

Stephanie Colleran, ESH Manager 

Hanson Aggregates Arizona, Inc. 

4127 E. Van Buren St., Suite 205 

Phoenix, AZ 85008 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 485 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 16, 2010 

Docket No. WEV A 2009-1708 

A.C. No. 46-08596-168603 

PRITCHARD MINING COMP ANY, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 23, 2009, the Commission received from Pritchard 

Mining Company, fuc. ("Pritchard Mining") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 486 
On November 12, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000168603 to Pritchard Mining. 

MSHA asserts that the proposed assessment was delivered by U.S. Postal Service on November 

24, 2008. On February 9, 2009, MSHA sent a delinquency notice to Pritchard Mining. fu its 

motion, Pritchard Mining states that it timely contested the underlying citations that are the 

subject of the proposed assessment it now seeks to reopen. Pritchard Mining explains that due to 

an unspecified "inadvertent error," it did not receive the proposed assessment. 

The Secretary opposes the request to reopen and states that the operator has failed to 

explain why it did not contest the proposed assessment in a timely manner. She also maintains 

that the operator failed to explain the long delay in filing its request to reopen after it had been 

notified of the delinquency. 

Having reviewed Pritchard Mining's request to reopen and the Secretary's response, we 

agree with the Secretary that Pritchard Mining has failed to provide an explanation for its failure 

to timely contest the proposed penalty assessment. Pritchard Mining has submitted no 

justifications for its failure to contest the proposed penalty within 30 days of receiving it and 

therefore has not provided the Commission with an adequate basis to reopen. Accordingly, we 

deny without prejudice Pritchard Mining's request. See, e.g., BRS Inc., 30 FMSHRC 626, 628 

(July 2008); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008). 1 Any amended or 

1 The words ''without prejudice" mean Pritchard Mining may submit another request to 

reopen the case so that it can contest the citation and penalty assessment. If Pritchard Mining 

submits another request to reopen the case, it must establish good cause for not contesting the 

proposed assessment within 30 days from the date it received the assessment from MSHA. 

Under Rule 60(&) of the Federal Rules of Civil Procedure, the existence of "good cause" may be 

shown by a number of different factors including mistake, inadvertence, surprise, or excusable 

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

misrepresentation, or other misconduct by the adverse party. Pritchard Mining should include a 

full description of the facts supporting its claim of"good cause," including how the mistake or 

other problem prevented Pritchard _Mining from responding within the time limits provided in the 

Mine Act, as part of its request to reopen. Pritchard Mining should also include copies of all 

documents supporting its request to reopen. 

In any such request Pritchard Mining must also address why it did not file its request to 

reopen until more than five months after the MSHA notice should have alerted it to its 

delinquency. In the context of penalty assessments, in considering whether an operator has 

unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has 

passed between an operator's receipt of a delinquency notice or other notification from MSHA 

and the operator's filing ofits motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 

11(Jan.2009). Since the time Pritchard Mining filed its request, the Commission has held that 

any request to reopen filed more than 30 days after the receipt of such a notice is grounds for 

32 FMSHRC Page 487 
renewed request by Pritchard Mining to reopen Assessment No. 000168603 must be filed within 

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

prejudice. 

Robert F. Cohen, Jr., Commissioner 

~7 Patrick K. Nakamura, Commissioner 

denial of that request. Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). 

fu the contest proceedings related to the proposed assessment Pritchard Mining seeks to 

reopen, Docket Nos. WEVA 2009-49-R thru WEVA 2009-65-R, on January 25, 2010, the Chief 

Administrative Law Judge issued an Order to Submit fuformation, ordering the contestant to 

submit in writing the status of the citations within 20 days of the Judge's order or the cases 

would be dismissed. To date, Pritchard Mining has submitted no response. fu addition to 

addressing itsfailure to timely contest the proposed assessment and timely act in response to the 

delinquency notice, Pritchard Mining must also explain why it failed to respond to the Judge's 

order in the related contest proceedings. 

32 FMSHRC Page 488 
Distribution: 

Rebecca J. Oblak, Esq. 

Bowles, Rice, McDavid, 

Graff & Love, LLP 

7000 Hampton Center, Suite K 

Morgantown, WV 26505 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 489 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KNIFE RNER MIDWEST LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. CENT 2010-291-M 

A.C. No. 13-02184-202271 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 23, 2009, the Commission received from Knife . 

River Midwest LLC ("Knife River") a motion by counsel seeking to reopen a penalty assessment 

that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHR.C 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 490 
On September 2, 2009, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Citation No. 6154862 to Knife River, which subsequently filed 

a notice of contest challenging the citation (Docket No. CENT 2009-800-RM). MSHA issued 

the proposed assessment covering that citation on November 10, 2009. Knife River claims that it 

mistakenly paid the penalty. It further asserts that its counsel discovered that the penalty had 

been erroneously paid on the day the assessment became a final order. Within a week of 

discovery, Knife River filed a motion to reopen. 

Although the Secretary does not oppose the motion to reopen, she urges the operator to 

take all steps necessary to ensure that future penalty assessments are contested in a timely 

manner. 

Having reviewed Knife River's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 491 
Distribution: 

Adele L. Abrams, Esq, 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Coinlnission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 492 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

JOHN S. OL YNICK, INC. 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. LAKE 2010-242-M 

A.C. No. 47-00865-196519 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 24, 2009, the Commission received from 

John S. Olynick, Inc. ("Olynick") a motion made by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 493 
On September 9, 2009, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Penalty Assessment No. 000196519 to Olynick. 

Olynick paid the penalty in a timely fashion. MSHA subsequently informed Olynick that it had 

initiated a special investigation against the owner of the company under section 110( c) of the 

Mine Act, 30 U.S.C. § 820( c ), based on allegations contained in the penalty assessment. Olynick 

seeks to reopen the penalty assessment and to·consolidate it with any section l lO(c) proceeding. 

It asserts that it was not aware that payment of the penalty could be construed as an admission of 

a violation and used as evidence against its agent in subsequent proceedings. 

The Secretary opposes reopening and submits that under the doctrine of collateral 

estoppel, an operator's failure to contest a proposed penalty does not estop agents of the operator 

from litigating any aspect of the underlying violation. The Secretary states that she "traditionally 

has not argued that an operator's payment of or failure to contest a proposed assessment estops 

agents of the operator from litigating any aspect of the underlying violation in a subsequent 

section 110( c) proceeding, and the Secretary will not so argue if a subsequent section 110( c) 

proceeding is initiated.here." 

32 FMSHRC Page 494 
Based on the Secretary's representation that, if a section 110( c) proceeding is initiated, 

she will not argue that Olynick's payment of or failure to contest a proposed assessment estops 

the owner of the operator from litigating any aspect of the underlying violation, the grounds for 

the operator's contentions are unfounded. Accordingly, we hereby deny Olynick's request to 

reopen. 

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 495 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 496 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CITY STONE, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. LAKE 2010-301-M 

A.C. No. 33-04447-193672 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 30, 2009, the Commission received a request 

to reopen a penalty assessment issued to City Stone, LLC ("City Stone") 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 notify1he 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). t · · · 

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(May1993) ("JWR"). In evalliating requests to 

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

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

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

See 29 C.F.R. § 2700.l{b) (''the Commission and its Judges shallbe 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 showjng 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 1S29, 1530 (Sept. 1995). 

32 FMSHRC Page 497 
On August 6, 2009, the Department of Labor's Mine Safety and Health Ad.ministration 

("MSHA") issued Proposed Assessment No. 000193672 to City Stone, proposing penalties for 

various citations. City Stone states that it "did not realize that the necessary paperwork to contest 

the citations had not been filed with MSHA" until it received a delinquency notice from MSHA 

dated October 28, 2009. 1 

The Secretary opposes reopening on the ground that City Stone has failed to make a 

showing of the exceptional circumstances that warrant reopening. The Secretary argues that 

specific instructions on how to contest the proposed assessment appeared on the proposed 

assessment form, and that there is no explanation as to why the operator did not contest the 

proposed assessment within 30 days after receipt. 

Having reviewed City Stone's request to reopen and the Secretary's response, we 

conclude that the operator has not provided a sufficiently detailed explanation for its failure to 

timely contest the proposed penalty assessment. The statement that the operator did not realize 

that the necessary paperwork had not been filed does not provide the Commission with an 

adequate basis to reopen without further elaboration. Furthermore, City Stone has failed to 

explain why it delayed approximately two months in responding to the delinquency notice sent 

by MSHA.2 Accordingly, we hereby deny without prejudice City Stone's request. See Petra 

Materials, 31 FMSHRC 4 7, 49 (Jan. 2009); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 

1 The.request to reopen was filed by James Young, ofCatamount Consulting, who 

identifies himself as a representative for City Stone. Commission Procedural Rule 3 provides 

that, in order to practice before the Commission, a person must either be an attorney or fall ~to 

one of the categories in Rule 3(b), which includes parties, representatives of miners, an "owner, 

partner, officer or employee" of certain parties, or "[a ]ny other person with the permission of the 

presidingjudge or the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Young 

satisfied the requirements of Rule 3 when he filed the request on behalf of City Stone. We have 

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

However, in any future proceeding before the Commission, including further proceedings in this 

case, Mr. Young may represent City Stone only if he demonstrates to the Commission or the 

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

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

City Stone mus( be represented by an attorney or by an owner, partner, officer, or employee. 

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

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

operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See, 

e.g., Left Fork Mining Co., 31FMSHRC8, 10-11(Jan.2009). 

32 FMSHRC Page 498 
{May 2008). The words ''without prejudice" mean City Stone may submit another request to 

reopen the case so that it can contest the citations and penalty assessment.3 

Any amended or renewed request by City Stone to reopen Assessment No. 000193672 

must be filed within 30 days of the date of this order. Any such request filed after that time will 

be denied with prejudice. 

Robert F. Cohen, Jr., Commissioner 

<?DL 

Patrick K. Nakamura, Commissioner 

3 If City Stone submits another request to reopen the case, it must establish good cause 

for not contesting the citations and proposed assessment within 30 days from the date it received 

the proposed penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil 

Procedure, the existence of "good cause" may be shown by a number of different factors 

including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking 

relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the 

adverse party. City Stone should include a full description of the facts supporting its claim of 

"good cause," including how the mistake or other problem prevented City Stone from responding 

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

Stone should also include copies of all documents supporting its request to reopen the case. 

32 FMSHRC Page 499 
Distribution: 

James E. Young 

Catamount Consulting, LLC 

17970 Rte. 36 

Punxsutawney, PA 15767 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209"'.2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 500 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH . 

ADMINISTRATION (MSHA) 

v. 

PHILLIPS COMPANIES 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. LAKE 2010-478-M 

A.C. No. 33-01603-197050. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 23, 2010, the Commission received from 

Phillips Companies ("Phillips") a request 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}ofthe 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(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 501 
Phillips states that it requested a conference regarding one of the five citations covered by 

the proposed assessment; that it never received the proposed assessment; and that, upon being 

informed that it was delinquent, it paid the assessment in full. Phillips requests reopening as to 

the penalty for Citation No. 6500213. The Secretary does not oppose reopening, but notes that 

the Federal Express delivery of the assessment was signed for by "W. Heathcock" and reminds 

the operator that, even though a conference was requested, the operator was also required to 

contest the penalty once the assessment issued. 

Having reviewed Phillips' request and the Secretary's response, in the interests of justice, 

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

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

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

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

... 't \., 

.. ,, 

Mic 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 502 
Distribution: 

Gary L. McDaniels 

Phillips Companies 

30 Haines Rd. 

Xenia, OH 45385 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 503 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY ANDHEALTH 

ADMINISTRATION (MSHA) 

v. 

AGGREGATES USA LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. SE 2010-258-M 

A.C. No. 09-00038-199644 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 9, 2009, the Commission received from 

Aggegrates USA LLC ("Aggregates") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 504 
On August 31, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Citation No. 6595211 to Aggregates, which timely contested it on 

September 2, 2009. Docket No. SE 2009-864-RM. On October 7, 2009, MSHA issued 

Proposed Assessment No. 000199644 to Aggregates, proposing civil penalties for several 

citations, including Citation 6595211. Aggregates maintains that it filled out the proposed 

assessment form indicating that it intended to challenge this citation and its associated penalty in 

the sum of$100. Aggregates states that it sent its payment in the amount of$1,409 for the 

remaining citations to MSHA's Payment Processing Center in St. Louis, Missouri, however its 

accounting office apparently failed to send the contest form to MSHA's Civil Penalty 

Compliance Office. The operator learned from MSHA's website that the citation had become a 

final order as of November 12, 2009. 

The Secretary does not oppose Aggregates' request to reopen the proposed penalty 

assessment. She notes that a payment dated October 25, 2009, in the amount of $1,409 was 

timely received at MSHA's Payment Processing Center. She also states that MSHA has no 

record of receiving the penalty contest form at its Civil Penalty Compliance Office in Arlington, 

Virginia. 

32 FMSHRC Page 505 
Having reviewed Aggregates' request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 506 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 507 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ASARCO,LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. WEST 2009-1124-M 

A.C. No. 02-00135-181707 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 20, 2009, the Commission received from Asarco, 

LLC ("Asarco") a request to reopen a penalty assessment that had become a final order of the 

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

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l{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). 

32 FMSHRC Page 508 
Asarco states that it returned the assessment form fo the Department of Labor's Mine 

Safety and Health Administration ("MSHA") with the citations that it desired to contest noted on 

the form, although Asarco does not provide the date on which it returned the form. On July 9, 

2009, Asarco received a delinquency notice from MSHA~ On July 15, 2009, the operator 

submitted its request to reopen to the Commission. 

The Secretary does not oppose reopening the proposed penalty assessment but states that 

there is no record of the penalty contest form having been received by MSHA's Civil Penalty 

Compliance Office. The Secretary acknowledges that MSHA received a late payment with a 

check dated July 15, 2009, in the amount of$28,197, to be applied to penalties in this case. 

32 FMSHRC Page 509 · 
Having reviewed Asarco's request andtl1e Secretary's response, in the interests of justice, 

we remand this matter to the Chief Administrative Law Judge for a determination of whether 

good cause exists for Asarco's failure to timely contest the penalty and whether relief from the 

final order should be granted. A!) part of this determination, the Judge should ascertain when 

Asarco returned the proposed assessment form. If it is determined that relief from the final order 

is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. § 2700. 1 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

1 It is not clear which citations were paid and which citations Asarco seeks to reopen. 

Thus, ifthe Chief Administrative Law Judge determines that the case should be reopened, he 

should also determine which citations are to be included in the reopening. 

32 FMSHRC Pag~ 510 
Distribution: 

Robert Jordan 

Senior Safety Supervisor 

Asarco, LLC 

4201 W. Pima Mine Rd. 

Sahuarita, AZ 85629 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRCPage 511 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BOWIE RESOURCES, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. WEST 2009-1203 

A.C. No. 05-04591-173779 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 5, 2009, the Commission received from Bowie 

Resources, LLC ("Bowie") a motion by counsel seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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 pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

32 FMSHRC Page 512 
On January 7, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000173 779 to Bowie, proposing civil penalties for 

several citations. Bowie maintains that it filled out the proposed assessment form indicating that 

it intended to challenge seven of the citations and orders and their associated penalties and sent 

the contest to MSHA's Civil Penalty Compliance Office. Bowie states that it sent its payment in 

the amount of$3,974 for the remaining citations to MSHA's Payment Processing Center in 

St. Louis, Missouri. The operator further states it subsequently learned from MSHA that its 

contest of the seven citations/orders at issue was never received. 

The Secretary does not oppose Bowie's request to reopen the proposed penalty 

assessment. She notes that a payment dated March 13, 2009, in the amount of$3,974 was 

received at MSHA's Payment Processing Center. However, the Secretary states that MSHA has 

no record of receiving the penalty contest form at its Civil Penalty Compliance Office in 

Arlington, Virginia. 

Having reviewed Bowie's request and the Secretary's response, in the interests of justice, 

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

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

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

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

~··Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 513 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 514 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

7/11 MATERIALS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 23, 2010 

Docket No. WEST 2010-393-M 

A.C. No. 04-04777-198717 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 28, 2009, the Commission received from 7/11 

Materials, Inc. ("7 /11 Materials") a request 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 1 OS( 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 that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 1 OS( a). Jim 

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

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 515 
On July 1, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000189717 to the Hiatt Ready Mix Mine. In its 

request, 7111 Materials alleges that it took ownership of the mine on August 1, 2009, and that it 

had not received copies of the pertinent citations or the proposed penalty assessment. The 

operator asserts that it received a notice of delinquency on September 30, 2009, and contacted 

MSHA on numerous occasions to contest the penalty assessments. 

The Secretary states that she does not oppose 7/11 Materials' requestto reopen the 

assessment and attaches copies of the proposed assessment and citations. 

Having reviewed 7 /11 Materials' request and the Secretary's response, in the interests of 

justice, we hereby reopen this matter. 7/11 Materials shall have 30 days from the date of this 

order to submit its contest to MSHA at the address contained on the proposed penalty 

assessment. If the penalty assessment is contested, the case shall proceed pursuant to the Mine 

Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Michae 

Robert F. Cohen, Jr., Commissioner 

~l Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 516 
Distribution: 

Brian Rose 

Aggregates Mngr. 

7 /11 Materials, Inc. 

517 Roney Trail 

Chico, CA 95973 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 517 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RAY COUNTY STONE 

PRODUCERS, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. CENT 2010-88-M 

A.C. No. 23-02274-192621 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act''). On December 30, 2009, Ray County Stone Producers, LLC 

("Ray County Stone") renewed its reql!est that the Commission reopen a penalty assessment 

issued to the operator that had become a final order of the Commission pursuant to section lOS(a) 

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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 

32 FMSHRC Page 518 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On July 29, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000192621 to Ray County Stone for three citations 

MSHA had issued to the operator on June 2, 2009. In ruling upon the original request to reopen, 

filed by Ray County Stone on October 28, 2009, the Commission concluded that the operator had 

failed to provide a sufficiently detailed explanation for its failure to timely contest the proposed 

penalty assessment. Accordingly, the Commission denied the request without prejudice to Ray 

County Stone's right to refile another request which specified which penalties it would contest 

upon reopening and that included "more specific information regarding why it did not file a 

notice of contest on a timely basis, and when it learned of the delinquency." Ray County Stone 

Producers, LLC, 31FMSHRC1339, 1340-41 & n.1(Dec.2009). 

In renewing its request, Ray County Stone's safety consultant, Earl Wilson, wrote the 

Commission a letter in which he identified the two citations the operator seeks to reopen. As for 

the reason it did not timely contest those penalties, Ray County Stone states that it was due to 

"issues with office staff' and because the operator was not told by the staff of the proposed 

assessment. It says it learned of the delinquency when it checked the MSHA web site. 

While she did not oppose Ray County Stone's original request to reopen, the Secretary of 

Labor now opposes reopening the assessment, on the ground that reason given for the failure to 

timely contestthe citations is no more than a conclusory assertion, and that Ray County Stone 

has failed to state the date on which it checked the MSHA web site. 

Mr. Wilson cannot further represent Ray County Stone in this proceeding until he 

complies with Commission Procedural Rule 3(b ). As explained in our original order, that rule 

provides that, in order to practice before the Commission, a person must either be an attorney or 

fall into one of the categories in Rule 3{b), which include parties, representatives of miners, an 

"owner, partner, officer or employee" of certain parties, or "[a ]ny other person with the 

permission of the presiding judge or the Commission." 29 C.F.R. § 2700.3(b). In submitting the 

original request on the letterhead "Wilson and Associates," Mr. Wilson stated that he was a 

"Safety Consultant." In the renewed request, Mr. Wilson, on identical letterhead, takes the 

position that he is an "employee" of Ray County Stone because he has been "hired" to look into 

this matter. Given these conflicting accounts of Mr. Wilson's status, he must seek permission to 

practice before the Commission or judge pursuant to Rule 3(b)(4) before he can appear again 

before the Commission in this or any other case in which Wilson and Associates is not a party. 

Ray County Stone can instead be represented by an individual who fits within one of the 

categories set forth in Rule 3(b)(l)-(3). Because Mr. Wilson has not established compliance with 

Rule 3(b ), we deny the operator's request without prejudice. 

Having reviewed Ray County Stone's renewed request and the Secretary's response, we 

further conclude that the operator has again failed to provide a sufficiently detailed explanation 

32 FMSHRC Page 519 
for its failure to timely contest the proposed penalty assessment. Because its renewed request 

states little more than its original request, we deny without prejudice Ray County Stone's request 

for this reason as well. If the operator files a third request to reopen, it must (1) explain in detail 

how the assessment, which was delivered to it and signed for by a "J. Dugan," was not timely 

contested, (2) identify the date it learned of the delinquency, and (3) describe what it did upon 

learning of the delinquency. If the defects identified herein are not cured within 30 days, the 

denial oftheoperator's request to reopen the penalty assessment shall become final and 

unappealable to the Conimission 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 520 
Distribution: 

Earl Wilson 

Safety Consultant 

Wilson & Associates 

10737 Miles St. 

Rolla, MO 65401 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRGPage 521 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND·HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. KENT 2009-1409 

A.C. No. 15-19116-183877 

ENTERPRISE MINING COMP ANY LLC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 6, 2009, the Commission received a motion by 

counsel to reopen a penalty assessment issued to Enterprise Mining Company LLC ("Enteq)rise'') 

that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815{a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l{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). 

32 FMSHRC Page .522 
On April 29, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000183877 to Enterprise, which covered Citation 

No. 8315960. Enterprise asserts that its failure to timely file its contest was the result of 

confusion as to whether outside counsel or the safety director was going to send the form. 

According to Enterprise, its safety director also believed that no contest should be sent until a 

conference covering the citation, scheduled for May 6, 2009, was held. Enterprise also points out 

that it had already filed a pre-penalty contest of the citation. 

The Secretary states that she does not oppose the reopening of the assessment, but notes 

that a pre-penalty contest does not alter the deadline or procedure for contesting a proposed 

penalty. The Secretary also urges that the operator take all steps to ensure that future penalty 

assessments be contested in a timely manner. 

Having reviewed Enterprise's motion and the Secretary's response, in the interests of 

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

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

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

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

Mary Lu ford~ 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 523 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

MyraJames, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 524 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. LAKE 2010-332-M 

A.C. No. 21-03095-198625 

L & S CONSTRUCTION CORPORATION 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 12, 2010, the Commission received from · 

L & S Construction Corporation ("L&S") a request 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(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 525 
The Department of Labor's Mine Safety and Health Administration (''MSHA") issued 

Proposed Assessment No. 000198625 to L&S on September 29, 2009, proposing penalties for 

nine citations and an order that had been issued to L&s·on August 25, 2009. L&S states that on 

October 12, 2009, it sent a letter to the MSHA District Office to contest two of the citations. The 

operator further explains that on October 26, 2009, it received correspondence from MSHA 

indicating that a conference would be scheduled after L&S sent its contest, which the operator 

states that it thought it had done by its October 12 letter. The operator promptly filed its request 

to reopen when it discovered its error. The Secretary of Labor does not oppose reopening. 

Having reviewed L&S 's request and the Secretary's response, in the interests of justice, 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 526 
Distribution: 

Herb Schefflera, President 

L & S Construction Corp. 

12226 Knox Ave. 

Sanborn, MN 5083 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 527 .. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. SE 2009-807-M 

A.C. No. 40-03315-183194 W720 

DJ DRILLING AND BLASTING, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 11, 2009, the Commission received from DJ 

Drilling and Blasting, fuc. ("DJ Drilling") a letter 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"). fu evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 528 
The Department of Labor's Mine Safety and Health Administration (''MSHA") issued the 

proposed assessment on April 22, 2009. DJ Drilling claims that it sent to MSHA a letter and 

proposed assessment form contesting the assessment on May 12, 2009. It states that it received a 

delinquency notice on July 24, 2009, indicating that the assessment was past due; DJ Drilling 

further asserts that it then called MSHA and learned that there was no record of its contest. 

According to DJ Drilling, it learned on August 5, 2009, that it needed to contact the Commission 

to reopen the penalties. On that same day, DJ Drilling sent a letter seeking reopening. The 

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

Having reviewed DJ Drilling's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

~L Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 529 
Distribution: 

Christy Meredith, Office Mngr. 

DJ Drilling & Blasting, Inc. 

401 Dick Buchanan St. 

La Vergne, TN 3 7086 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson ~lvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert]. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 530 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE; NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. WEST 2009-1201-M 

A.C. No. 48-00155-183788 

GENERAL CHEMICAL (SODA ASH) 

PARTNERS 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 4, 2009, the Commission received from General 

Chemical (Soda Ash) Partners ("General Chemical") a letter 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 Conimission. 30 U.S.C. § 815(a). 

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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 respo11d, the case may be reopened and appropriate proceedings on the 

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

32 FMSHRC Page 531 
The Department of Labor's Mine Safety and Health Admiriistration ("MSHA'') issued the 

proposed assessment on April 28, 2009. General Chemical claims that it requested a conference 

for several citations, including Citation No. 6420307 at issue here, and that it sent the contest 

form to MSHA covering the citation at issue. It states that it received a delinquency notice on 

July 21, 2009, indicating that the assessments were past due. Within two weeks of the notice, 

General Chemical sought reopening before the Commission. 

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

assessment, although she has no record of receiving the contest in this case. She also notes that a 

request for a conference does not alter the deadline or procedure for contesting a proposed 

penalty. 

Having reviewed General Chemical's request and the Secretary's response, in the 

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

Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 

29 C.F.R.§ 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. 

Robert F. Cohen, Jr., Commissioner 

~l Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 532 
Distribution: 

Brian Hacker 

Safety/Sec. Training Specialist 

General Chemical (Soda Ash) Partners 

Green River Soda Ash Operation 

P.O. Box 551, 

Green River, WY 82935-0551 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9SOO 

Washington, D.C. 20001-2021 

32 FMSHRC Page 533 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

ELCON CONSTRUCTION, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. WEST 2009-1204-M 

A.C. No. 10-00088-166728 L991 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 6, 2009, the Commission received from Elcon 

Construction, Inc. ("Elcon") a letter seeking to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(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). 

32 FMSHRC Page 534 
On October 23, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued the proposed assessment at issue. Elcon claims that it timely mailed the 

contest form on November 20, 2008, and did not receive any further correspondence relating to 

the assessment until it received a collection notice from the Department of Treasury dated 

May 16, 2009. The Secretary asserts that she has no record of receiving the contest and notes 

that a delinquency notice was sent to the operator on January 15, 2009, before the case was 

referred to the Treasury Department for collection. She does not oppose reopening but urges the 

operator to take all steps necessary to ensure that future penalty assessments are contested in a 

timely manner and mailed to the appropriate MSHA address. 

Having reviewed Elcon's request and the Secretary's response, in the interests of justice, 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 535 
Distribution: 

Mark Lehinger 

Elcon Construction Inc. 

P.O. Box, 13037 

Spokane, WA 99213-3037 

W. Christian Schumann, Esq; 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-'2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, YA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New JerseyAvenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 536 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BRODY MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 30, 2010 

Docket No. WEVA 2009-1445 

A.C. No. 46-09086-184529 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 12, 2010, the Commission received a petition for 

discretionary review from Brody Mining, LLC ("Brody'') challenging an order issued by Chief 

Administrative Law Judge Robert J. Lesnick on April 9, 2010. In his order, Judge Lesnick 

denied a motion to dismiss filed by Brody and accepted an untimely petition for assessment of 

penalty filed by the Secretary of Labor. 

Under the Mine Act and the Commission's procedural rules, relief from a Judge's final 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(a), 2700.70(a). Under the Commission's 

Procedural Rules, the filing of a petition for discretionary review is effective upon receipt. 

29 C.F.R. §§ 2700.5(e)(2), 2700.70(a). 

Brody's petition was received by the Commission on May 12, 2010, more than 30 days 

after issuance of the Judge's April 9, 2010 order. Accordingly, the petition should be dismissed 

as untimely filed. Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal 

Corp., 2 FMSHRC 775 n.l (Apr. 1980). 

32 FMSHRC Page 537 
For the foregoing reasons, Brody's petition for discretionary review is dismissed as 

untimely. 1 

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

1 We note that even if Brody had timely filed the petition, an independent grounds for 

denial exists since the petition seeks review of a Judge's order that is interlocutory, rather than 

final, in nature. See 29 C.F.R. § 2700.76. 

32 FMSHRC Page 538 
Distribution: 

Jason M. Nutzman., Esq. 

Smith, Moore, Leatherwood 

P.O. Box 87 

300 E. McBee Avenue, Suite 500 

Greenville, SC 29602 

Ernie Ross, Jr. 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA 

100 Bluestone Road 

Mt. Hope, WV 25880-1000 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. OfLabor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

Administrative Law Judge William Moran 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

721 191

h Street, Suite 443 

Denver, CO 80202 

32 FMSHRC Page 539 
32 FMSHRC Page 540 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

ABUNDANCE COAL, INC., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

WASHINGTON, D.C. 20001 

May4, 2010 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

DOCKET NO. EAJ 2010-01 

Formerly KENT 2010-5-R 

KENT 2010-6-R 

Mine ID 15-18711 

No. 1 Mine 

DECISION 

This case is before me upon an application for fees and expenses filed by Abundance Coal, 

Inc., (Abundance) pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, the "Act'', and the 

Commission's implementing regulations at 29 C.F.R. § 2704. Abundance was the prevailing party · 

in an expedited contest proceeding, Abundance Coal, Inc., 31 FMSHRC 1241 (October 2009)(ALJ). 

On March 10, 2010, a decision was issued in these proceedings finding that Abundance was 

qualified to receive fees and expenses under the Act and that the· Secretary was liable for those fees 

and expenses for failing to sustain her burden of proving that her position at trial was substantially 

justified. 5 U.S.C. § 504(a)(l); 29 C.F.R. § 2704.105(a). 

Abundance failed to support its application for fees and expenses, however, by failing to 

provide "a written verification under oath or penalty of perjury that the information provided in the 

application is true and correct". 29 C.F.R. § 2704.201(d). Abundance also failed to provide an 

itemized statement of professional services in connection with the underlying proceeding. 29 C.F .R. 

§ 2704.205. Accordingly Abundance was granted 30 days to comply with the noted regulatory 

provisions. 1 . 

In response, on April 12, 2010, Abundance filed an affidavit by its president, Ray Slone, to 

the effect that the "motion" for attorneys fees and costs was true and correct. The Coimnission'.s 

regulation is perfectly clear however that the verification must be specifically directed to the 

"information" in the application and not merely to the motion itself This is not a trivial technicality 

but is a critical distinction to enable a credibility assessment to be made. The affiant should, of 

course, also have firsthand knowledge of the facts affirmed. Abundance also failed in its response 

to provide the detailed information required by 29 C.F.R. § 2704.205. It is particularly noted that 

Abundance failed to distinguish between time spent on the underlying cases and time .spent on the 

consolidated but separate cases involving two imminent danger withdrawal orders (Docket Nos. 

KENT 2010-28-R and KENT 2010-29-R). The latter cases are not a part of these equal access of 

1 The Secretary was also directed to comply with the provisions of29 C.F.R. § 

2704.302(c) but failed to respond. 

32 FMSHRC Page 541 
justice proceedings and the fees and expenses related to those cases are not compensable in these 

proceedings. 

The failure of Abundance to have complied with the Commission's regulations could be 

grounds for denial of the entire application. However, to the extent that parts of the application are 

unopposed or can be reasonably ascertained, a partial award will be granted. Consideration is also 

given to a presumption oftruthfulrtess accorded representations by members of the bar. 

The Secretary first argues that attorney's fees for Abundance should be limited to a rate of 

$125.00 per hour as set forth in 29 C.F.R § 2704.201. Abundance seeks an award ata rate of 

$175.00 per hour and cites an increase in the cost of living since the enactment of the 1996 Act and 

other special circumstances to justify that rate. See 29 C.F.R. § 2704.20l(b). Abundance cites the 

fact that its attorney has a mining engineering degree and has been practicing all aspects of coal mine 

law for over 20 years, asserts that it would have been unable to obtain a qualified attorney to handle 

the matter for $125.00 an hour and maintains that there are only a very few attorneys in eastern 

Kentucy who would represent coal mine operators in MSHA proceedings. Finally, Abundance notes 

that the only place eastern Kentucky coal operators can obtain qualified attorneys to defend MSHA 

administrativ.e proceedings is in Lexington, Kentucky where most charge more than $175.00 per 

hour. Under the circumstances, I find that a rate of $175.00 is appropriate to be awarded in these 

proceedings. 

The Secretary objects to attorney fees for conversations with the attorney representing mine 

operator Consol of Kentucky in the consolidated but separate contest of an "imminent danger'' order. 

It is essential to note in this regard that initially four expedited contest proceedings were consolidated 

for trial to commence on October 14, 2009. Two challenged "Section 107(a)" imminent danger 

withdrawal orders - - one issued against Abundance at its No. 1 Mine and one against Consol of 

Kenthcky at its adjacent Jones Fork mine. These two cases involved an alleged common hazard 

originating in-the adjacent Jones Fork mine and were resolved by settlement on October 14, 2009. 

They are not in themselves within the scope of any claims for fees and expenses under the Act. The 

other contests (of Citation No. 8227636 and "Section 104(b)" Order No. 8227637) involved 

Abundance's seals separating its No. 1 mine from the Jones Fork mine and involved the same 

alleged common hazard originating in the Jones Fork mine. The latter two cases are those 

underlying the instant application for fees and expenses. While there was, of necessity, some need 

for coordination between counsel this rationale provides only a partial explanation for the charges. 

Accordingly an appropriate reduction in fees of25% or $175.00 is warranted .. 

The Secretary next takes issue with fees and expenses for attendance at the proceedings on 

October 14, 2009. All four consolidated cases were scheduled for trial on October 14, 2009, but at 

the suggestion of the undersigned the parties engaged in settlement negotiations. As a result, the 

"Section l 07(a)" imminent danger orders issued to both Consol of Kentucky and Abundance were 

resolved. As previously noted, since the specific cases (Docket Nos. KENT 2010-5-R and 2010-6-

R) on which Abundance prevailed (regarding Citation No. 8227636 and Order No. 8227637) were 

separate and distinct from the "Section 107(a)" orders which were the primary subject of the 

settlement conference on October 14, 2009, (Docket Nos. KENT 2010-28-R and 2010-29-R) the 

32 FMSHRC Page 542 
time spent on those orders at that conference is not compensable in these proceedings. An 

appropriate reduction in fees of 50% or $1,050.00 is therefore taken from the October 14, 2009 

billing. 

The Secretary also takes issue with the time charged for conferring with MSHA' s district 

manager following the completion of the hearing on October 15, 2009. While this meeting was at 

the suggestion of the undersigned judge it was not directly related to the underlying cases but rather 

for the purpose of avoiding future litigation regarding the mine ventilation plan. It was therefore not 

an appropriate charge in these proceedings and a fee reduction of $350.00 from the October 151h 

billing is warranted. 

. The Secretary further takes issue with costs associated with obtaining an expedited transcript 

of the hearing. Expedited hearings were held in the underlying cases because the Secretary had 

ordered the closure of the Abundance mine and miners were out of work. An expedited transcript 

was therefore necessary for the parties to prepare expedited briefs. Accordingly the cost for an 

expedited transcript was appropriate. 

Finally,·the Secretary takes issue with bills for services from Abundance's experts and 

consultants. In particular, the Secretary asserts that neither the bill for Alpha Engineering Services, 

Inc., in the amount of $900. 00 nor the bill to Sure Tech Systems, Inc., in the amount of $600.00 meet 

the specificity required by the Commission's regulations. See 29 C.F.R. § 2704.205. I find the 

Secretary correct in this regard and in spite of the opportunity given to Abundance to supplement the 

record, it has nevertheless failed to fully comport with the requirements of29 C.F.R. § 2704.205. 

It is particularly noted that although some work was devoted by the experts to the "Section 107(a)" 

orders not compensable in these proceedings it was included in the fees charged herein. 

Accordingly, Abundance's claim for fees for these consultants is accordingly reduced by 50% to 

$750.00. 

The Secretary.also claims that the Commission's regulations do not permit attorney's fees 

for preparing and filing an application for fees and expenses under the Act. I find no such authority 

for the Secretary's position and indeed since the preparation of the fee application is an integral part 

of these proceedings I find that it is entirely appropriate to include that in the application for 

attorney's fees herein. Indeed such fees have been approved in other cases under the Act. See 

Schuenemeyer v. U.S., 776 F.2d 329 (Fed. Cir. 1985); Fritz v. Principi, 264 F.3d 1372 {Fed. Cir. 

2001); Black Diamond Construction, Inc., 20 FMSHRC 1169(October1998) (ALJ). 

Under all the circumstances, I find that Abundance is entitled to fees and expenses of 

$11,586.59. 

32 FMSHRC Page 543 
ORDER 

In accordance with29 C.F .R. § 2704.108 the Secretary of Labor is directed to pay Abundance 

Coal Inc., the amount of $11,5 86.59 within 30 days of the date of this decision. 

Distribution:(Certified Mail) 

Billy R. Shelton, Esq., Jones, W alte~, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 

310, Lexingtol), KY 40509 

Mary Sue Taylor, Esq., Office pf the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

/lh 

32 FMSHRC Page 544 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W .. SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9987 I FAX: 202-434-9949 

SECRETARY OF LABOR 

MINE SAFETY AND !IEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, 

Respondent 

May 13, 2010 

CIVIL PENALTY PROCEEDING 

Docket No~ PENN 2007-151 

A.C. No. 36-07416-109800 

Mine: Enlow Fork 

DECISION 

Appearances: AndreaJ. Appel, Esq., U.S. Department of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

Rodger L. Puz, Esq., Dickie, McCamey & Chilcote, P.C., Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Bulluck 

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary 

of Labor, on behalf of her Mine Safety and Health Administration ("MSHA"), pursuant to 

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

against Consol Pennsylvania Coal Company ("Consol'} The Secretary seeks civil penalties in 

the amount of$19,300.00 for three alleged violations of the Act and her mandatory safety 

standards. 

A hearing was held in Pittsburgh, Pennsylvania. The issues to be resolved are: 1) whether 

Respondent violated 30 C.F.R. § 75.360(f), as alleged in Order No. 7073382, and 30 C.F.R. § 

75.400, as alleged in Citation No. 7071787 and Order No. 7073658; 2) whether the violations 

were "significant and substantial" ("S&S"); and 3) whether the violations were attributable to 

Consol's unwarrantable failure to comply with the standards. 1 The parties' post1 The S&S terminology is taken from section I 04( d)(l) of the Act, 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." 30 U.S.C. § 814(d)(l). The unwarrantable failure 

terminology is taken from the same section, and establishes more severe sanctions for any 

violation that is caused by "an unwarrantable failure of [an] operator to comply with ... 

32 FMSHRC Page 545 
hearing briefs are of record. For the reasons set forth below, I AFFIRM the citation and orders, 

as AMENDED, and assess penalties against Respondent. 

I. Stipulations 

The parties stipulated as follows: 

1. Respondent was an "operator" as defined in section 3(d) of the Federal Mine Safety 

and Health Act of 1977, as amended, 30 U.S.C. § 803(d), of the Enlow Fork Mine at the time 

Citation/Order Nos. 7071787, 7073382 and 7073658 were issued. 

2. The operations of Respondent at the aforementioned mine at the time Citation/Order 

Nos. 7071787, 7073382 and 7073658 were issued are subject to the jurisdiction of the Mine Act .. 

3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges, pursuant to Sections 104 

and 113 of the Mine Act. 

4. Inspector Barry Radolec was acting in his official capacity and as an authorized 

representative of the Secretary of Labor when Citation No. 7071787 was issued. 

5. Inspector James Kaczmark was acting in his official capacity and as an authorized 

representative of the Secretary of Labor when Order No. 7073382 was issued. 

6. Inspector Ronald Rihaley was acting in his official capacity and as an authorized 

representative of the Secretary of Labor when Order No. 7073658 was issued. 

7. True copies of Citation/Order Nos. 7071787, 7073382, and 7073658 were served on 

Respondent and/or its agents, as is required by the.Mine Act. 

8. Payment of the total proposed penalty for Citation/Order Nos. 7071787, 7073382, and 

7073658 will not affect Respondent's ability to continue in business. 

9. The citations contained in Exhibit A attached to the Secretary's petition in the case 

docketed as PENN 2007-151, are authentic copies of Citation/Order Nos. 7071787, 7073382, and 

7073658 with all the appropriate modifications or abatements, if any. 

10. At the time that Citation No. 7071787 was issued, material existed at certain points on 

the 3 North Number 1 Main Conveyor Belt, starting at the end of the conveyor belt take-up and 

continuing inby to the number 5 Yi crosscut. 

mandatory health or safety standards." Id. 

32 FMSHRC Page 546 
11. At the time that Citation No. 7071787 was issued, the accumulations described in 

Request for Admission No. 10 measured from 6 feet wide by 25 feet long and from 1 inch to 12 

inches in depth under the bottom conveyor belt and belt rollers, behind the conveyor belt take-up. 

12. At the time that Citation No. 7071787 was issued, material existed at certain points on 

the inby side of the E-1 belt overcast to the number 5 Yi crosscut. 

13. At the time that Citation No. 7071787 was issued, accumulations were in contact with 

3 bottom rollers. 

14. At the time that Citation No. 7071787 was issued, some of the accumulations 

described in the Citation were damp to wet. 

15. At the time that Citation No. 7071787 was issued, accumulations existed under certain 

bottom rollers between the number 5 Yi crosscut and the E-1 belt overcast. 

16. At the time that Citation No. 7071787 was issued, some of the accumulations described 

in the Citation required shoveling. 

17. Coal is combustible under certain circumstances. 

18. Coal fines are combustible under certain circumstances. 

19. Coal dust is combustible under certain circumstances. 

20. At the time that Order No. 7073382 was issued, there were 14 rib rolls on the E.:..14 

belt, which obstruct~d the 24-inches required for the tight side walkway. 

21. At the time that Order No. 7073382 was issued, there were two stoppings along the 

E-14 belt which contained combustible material. 

22. At the time that Order No. 7073382 was issued, the condition described by MSHA as a 

roof violation on the wide side of the E-14 belt travel way was not recorded by Respondent in its 

pre-shift examination of the E-14 longwall belt. 

23. At the time that Order No. 7073382 was issued, there were rollers turning in black coal 

fines. 

24; At the time that Order No. 7073382 was issued, the condition described in Stipulation 

No. 23 was not recorded in Respondent's pre-shift examination of the E-14 longwall belt. 

25. At the time that Order No. 7073382 was issued, the take-up pulley at the head of the 

32 FMSHRC Page 547 
E-14 longwall belt was not fully guarded. 

26. At the time that Order No. 7073382 was issued, the condition described in Stipulation 

No. 25 was not recorded in Respondent's pre-shift examination of the E-14 longwall belt. 

27. At the time that Order No. 7073382 was issued, the E-14 longwall belt was pre-shifted 

three times per day by a certified person. 

28. At the time that Order No. 7073658 was issued, accumulations of coal and/or coal 

fines at certain locations along the No. l main belt conveyor were in contact with roll~ or the 

conveyor belt itself. 

29. At the time that Order No. 7073658 was issued, in those areas along the No.l main 

belt conveyor where rollers or the belt itself were in contact with coal and/or coal fines, some of 

those accumulations were wet and some were dry. 

30. At the time that Order No. 7073658 was issued, there was coal spillage at certain 

locations along the E-14 longwall belt. 

31. At the time that Order No. 7073658 was issued, coal dust and/or float coal dust was 

deposited onto previouslyrockdusted surfaces at certain locations along the E-14 longwall belt. 

32. At the time that Citation/Order Nos. 7071787, 7073382, and 7073658 were issued, 

energized equipment was operating in certain discrete locations within each of the cited areas of 

the Enlow Fork Mine. 

II. Factual Background 

Consol operates the Enlow Fork mine in Washington County, Pennsylvania, which 

produced over 11 million tons of coal in 2007 and 2008. It is the largest bituminous coal 

producing deep mine in the country. Tr. 187. On August 9, 2006, MSHA sent multiple 

irispectors to Enlow Fork to conduct a regular quarterly safety and health inspection. Tr. 30, 192. 

This was a saturation type inspection, in that 10 to 12 inspectors were on-site to carry it out. 

MSHA Coal Mine Inspector James Kaczmark was assigned to inspect the 1. 7 mile long 

E-14 longwall belt. Tr. 290, 580-81. During his inspection, Kaczmark was accompanied by 

Enlow Fork safety inspector; Joshua Huth. Tr. 570-71. While traveling the belt, Kaczmark 

found nine hazardous conditions that had not been logged in Respondent's pre-shift examination 

book. Tr. 291-92. Specifically, Kaczmark found two stoppings with open holes, and three 

stoppings that had not been sealed and contained combustible materials, as well as 13 rib rolls 

obstructing the 24 inches required for the tight side walkway. Stip. 20, 21; Sec'y. Br. at 20 n.2. 

There was a crack in the roof on the wide side of the belt, which is also the travelway, three 

rollers were turning in loose, black coal fines, and there was damage to the guarding on the take32 FMSHRC Page 548 
up pulley atthe head of the E-14 longwall belt. Stip. 22, 23; 25. · There was also energized 

equipment operating in the cited area. Stip. 32. As a result of the conditions Kazmarck found, 

he issued section 104(d)(l) Order No. 7073382 for a violation of30 C.F.R. § 75.360(f), for 

failure to conduct an adequate pre-shift examination. Ex. P-5. This belt was subject to three 

pre-shift examinations per day by a certified person. Stip. 27. Kaczmark did not interview the 

miner who conducted the pre-shift examination. Tr. 434-36 .. 

.. 

During the same inspection, MSHA fuspector Barry Radolec, who wa.S not regularly 

assigned to Enlow Fork, inspected the 3 North Main's number 1 conveyor belt. Tr. 30..,Jl. 

Radolec was accompanied by Enlow Fork's safety supervisor, Don Overfield, and MSHA 

Supervisory fuspector Robert Newhouse, whose purpose was to evaluate Radolec's inspection. 

Tr. 32, 121. During the inspection, Radolec observed coal dust accumulations under the metal 

bottom rollers at the number 5 Yz crosscut, which measured 150 feet long by 12to18 inches 

wide, and up to 10 inches deep. Tr. 40. The accumulations were dry, powdery, somewhat 

compacted, and floated when thrown in the air. Tr. 40. The accumulated dust was also being 

rubbed by the bottom moving conveyor belt for a distance of about 150 feet. Tr. 41. One of the· 

metal belt stands had been cut in half by the rubbing belt, and belt shavings were found in the 

immediate area. Tr. 41. There were identical coal dust accumulations under the bottom rollers at 

various locations between the number 5 Yz crosscut and the 1 East belt crossover. Tr. 40. fu one 

area of the number 5 Yz crosscut, Radolec observed float coal dust being deposited on the mine 

roof ribs, on top of the overcast, on the metal conveyor belt structures, aluminum pipes, electrical 

cables along the belt, roof, roof controls, and roof support materials. Tr. 38. The consistency of 

these accumulations was dry to damp. Tr. 38. Overall, Radolec inspected somewhere between 

550 to 600 feet of beltline over a two hour period. Tr. 80-81. Along that belt span, Radolec 

noted three moving rollers in contact with dust accumulations. Tr. 119. Overfield, using aheat 

gun, took the temperature of the three rollers and got a reading between 72 and 74 degrees.2 Tr. 

122. Radolec also noted that the belt was rubbing over three inches of the belt structure in two 

separate places,' for a distance of about 30 feet. Tr. 122-23. Radolec took the belt out of service 

and issued section 104(d)(l) Order No. 7071787 for a violation of 30 C.F.R. § 75.400. Tr. 41; 

Ex. P-4. Consol uses fire resistant belts at Enlow Fork. Tr. 118. 

MSHA Coal Mine fuspector Ronald Rihaley issued Order No. 7073658, also for violation 

of section 75.400, after observing coal dust accumulations at numerous locations along the No. 1 

Main belt conveyor over a span of 1,500 feet. Stip. 28; Tr. 217-19. At approximately 1,500 feet 

long, this is the shortest main belt in the mine. Tr. 218-19. The accumulations were in contact 

with both the rollers and the conveyor belt; some were wet, and some were dry. Stip. 28, 29. 

There was also coal spillage along the E-14 longwall belt and coal dust and/orfloat coal dust 

deposited onto previously rockdusted surfaces in the same areas, and energized equipment was 

operating within the cited area. Stip. 30, 31, 32. At the number 4 Yz crosscut, Rihaley observed 

packed coal fines around the rotating bottom roller and the belt rubbing the coal fines. Tr. 219. 

He also saw 3 Yz feet of dry float coal dust. Tr. 220. At the number 5 crosscut, there was a stuck 

2 All references to temperature herein are according to the Fahrenheit scale. 

32 FMSHRC Page 549 
bottom roller in contact with the belt, and dry coal fines built up around the roller. Tr. 221. 

There were dry coal fines on the tight side of the take-up pulley, approximately three feet long, 

two feet wide, and two feet high, being compressed by the large, rotating pulley. Tr. 222. 

At the number 8 crosscut, Rihaley observed a bottom roller missing and the belt, which 

was out of alignment, rubbing the belt structure. Tr. 222-23. There were coal fines built up 

where the belt was rubbing and, inby, a bottom roller turning in coal fines on a two-foot section 

of belt that was producing dry, visible dust being suspended in air. Tr. 223. At the number 

9· crosscut, there was a stuck bottom roller and three inby rollers turning in coal fines, as well as 

the belt rubbing these fines for at least one foot. Tr. 224. At the number 10 Yi crosscut, there 

were packed coal fines in contact with a bottom roller and four feet of accumulations that were 

dry to the touch and producing visible dust. Tr. 226. Rihaley observed a stuck roller, a broken 

roller, and another roller turning in packed coal at the number 13 Yi crosscut, and more bottom 

rollers turning in coal at the number 14 and 14 Yi crosscuts. Tr; 228. On the tight side at the 

number 14 crosscut, there were accumulations measuring 40 feet long, two to three feet wide, 

and six to sixteen inches deep. Tr. 231. Rihaley also observed a bottom roller and eight to ten 

feet of belt in contact with dry coal fines producing visible dust at the number 15 crosscut. 

Tr. 228-29. During his inspection, he did not see any Consol employees attempting to clean up 

the cited accumulations. Tr. 232, 269. 

Supervisory Inspector Newhouse testified that MSHA has had numerous discussions with 

Enlow Fork management regarding preventative measures for combustible coal accumulations, 

including discussions during pre-inspection conferences at the beginning of every quarter, and 

close-out conferences at the end of each quarter. Tr. 173. In addition, Newhouse stated that he, 

personally; has had discussions about coal accumulations with mine management. Tr. 173. 

III. Findfugs .of Fact and Conclusions of Law 

Order No. 7073382 

A. Fact of Violation 

Inspector Kazmark issued 104(d){l) Order No. 7073382 for a violation of section 

75.360(f). He determined that it was highly likely that the violation would result in an injury or 

illness involving lost workdays or restricted duty, that the violation was significant and 

substantial, that one employee was affected, and that Consol's negligence was high and the result 

of its unwarrantable failure to comply with the standard. Ex. P-5, R-lB. Section 75.360, which 

governs pre-shift examinations, provides, in pertinent part: · 

(a){l) Except as provided in paragraph (a)(2) of this section, a 

certified person designated by the operator must make a pre-shift 

examination within 3 hours preceeding the beginning of any 8-hour 

32 FMSHRC Page 550 
interval during which any person is scheduled to work or travel 

underground. 

(f) A record of the results of each pre""shifl examination, including 

a record of hazardous conditions and their locations found by the 

examiner during each examination ... shall be made on the surface 

before anypersons, other than certified persons conducting 

examinations required by this subpart, enter any underground area 

of the mine. 

30 C.F.R. § 75.360(a)(l), (f). The citation describes the "Condition or Practice" as follows: . 

Ex. R-5. 

The operator failed to conduct a[ n] adequate pre-shift examination 

of the E-14 longwall belt. The hazards and violations regarding 

combustible material in stopping, holes in stopping, guards of 

storage rollers, roof conditions where persons work and travel, 

rollers turning in combustible material, and locations of tight side 

rib rolls. [There] were 14 rib rolls not recorded in the mine 

examiner pre-shift book which obstructed the 24 inches required 

for the tight side walkway, two holes in 2 different stopping, 2 

stopping with very visible combustible [material] present. [There] 

was one roof violation on the wide side of the belt travel way. 

Rollers turning in black coal fines. The take up pulleys [sic] at the 

head of the E-14 longwall belt was not fully guarded. This belt is 

pre-shifted 3 times a day by certified persons. [There] were 9 

citations issued on this belt line. 

The pre-shift examination requirement "is of fundamental importance in assuring a safe · 

working environment underground." Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). The 

purpose of the pre-shift examination is to "prevent loss of life and injury," resulting from hazards 

at the mines. S. Rep. No. 91-411, at 71 (1969), reprinted in Senate Subcomm. on Labor, Comm. 

on Human Res., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 

1969, at 183 (1975). The examination is intended to prevent hazardous conditions from 

developing. Enlow Fork Mine Co., 19 FMSHRC 5, 15 (Jan. 1997). 

In the instant case, the pre-shift examination of the E-14 longwall belt occurred from 5 :00 

a.m. to 6: 15 a.m. on August 9, 2006, and was conducted by Michael Despot, a certified pre~shift 

examiner. Ex. P-7. Approximately six hours after Despot pre-shifted the belt, Kaczmark issued 

the Order. Ex. P-5. Although there were hazards noted in the pre-shift report, Kaczmark 

32 FMSHRC Page 551 
identified nine hazards during his inspection that were not.3 Tr. 293. The parties have stipulated 

to many of the conditions, and that several were not included in the pre-shift examination report 

for the E-14 longwall belt. Tr. 15-17; Stip. 20-26. The issue is whether the conditions existed at 

the time of Despot's pre-shift examination and, if so, whether they were obvious. 

Consol did not present any witnesses to testify to the conditions in the affected areas at 

the time of the pre-shift examination. Notably absent was Despot, who had performed the 

pre-shift examination, and could have testified regarding what conditions he had encountered and 

whether, in his opinion, they were hazardous. On the other hand, Kaczmark testified regarding 

each of the conditions listed, and explained why he believed that they had existed at the time of 

the pre-shift examination and why they were hazardous. 

The first five cited conditions involve two open holes in stoppings along the E-14 

longwall belt, and combustible materials in holes in three stoppings. Stoppings are designed to 

run dust-filled air out of escapways to the face, in order to decrease the amount of gas and dust 

contaminating the mine atmosphere. Tr. 299-300. Holes in stoppings are hazardous because 

they divert the direction of unclean air and compromise the efficiency of the ventilation system. 

Tr. 299-300. Kaczmark testified that the holes were visible and could be seen just by walking 

along the belt. Tr. 307. He believed that the holes could not have developed in the time between 

the pre-shift examination and the MSHA inspection because there was one hole, five inches high 

and three inches wide, with a hose going through it, and there "might" have been a wench cable 

going through the second. Tr. 302-06. In his opinion, the amount of dirt and dust that had 

accumulated around the hose indicated that it had been in the hole for "quite awhile." Tr. 306. 

This assessment is supported by the fact that mining had ceased between the number 20 and 25 

crosscuts where the holes were discovered, and had progressed to the number 31 crosscut, which 

would have taken a long period of time. Tr. 301. Former MSHA Conference and Litigation 

Representative, Lynn Workley, testifying for Consol, opined that the holes would not have 

exposed miners to gas or dust, since the air was vented to the return, and that they "[do not] 

significantly reduce the strength or ability of the stopping to resist fire or to prevent the air from 

mixing between the belt and the next entry over." Tr. 658. fu light ofWorkley's extensive 

background as a mine inspector and ventilation specialist, I credit his testimony, which was 

unrebutted by the Secretary. 

3 Kazmark issued nine citations: (1) 104(a) Citation No. 7073373 for a stopping with 

combustible material at the number 23 crosscut; (2) 104(a) Citation No. 7073374 for a crack in 

the roof at the number 23 Yi crosscut; (3) 104(a) Citation No. 7073375 for combustible coal 

accumulations under three rollers at the ;number 27 Yi crosscut; (4) 104(a) Citation No. 7073376 

for stopping with combu,stible material at the number 25 crosscut; (5) 104(a) Citation No. 

7073377 for a hole in the stopping at the number 28 crosscut; (6) 104(a) Citation No. 7073378 

for stopping with combustible materialat the number 29 crosscut; (7) 104(a) Citation No. 

7073379 for a hole in the stopping at the number 30 crosscut; (8) 104(a) Citation No. 7073380 

for rib rolls on the tight side of the belt at 13 locations; and (9) 104(a) Citation No. 7073381 for 

rips in the guarding at the take-up pulley at the head of the E-14 belt. Ex. P-8. 

32 FMSHRC Page 552 
The unsealed combustible materials in three locations in the stoppings included exposed 

paper and wood, and a lump of coal. Tr. 308. According to Kaczmark, when combustible 

material is in a stopping without a sealant, it compromises the integrity of the stopping and will 

be the first thing to catch fire, should heat make contact with it. Tr. 308. Sealant retards the fire 

and will prevent it from spreading rapidly for at least an hour. Tr. 308. The combustible 

materials appeared to have been present for over a week, because of the amount of dirt that had 

accumulated on them and because of the compressed indentations on the wooden wedges, which 

would have been installed for stability when the stoppings were put in place. Tr. 310-13. 

Kaczmark stated that the scoops are sometimes parked in the crosscuts, and a possible ignition 

source could be a battery on a scoop. Tr. 366-67. There was no scoop present in the area during 

Kaczmark's inspection. Tr. 367. 

Consol contends that the language of section 75.360 only requires that "hazardous 

conditions" be recorded in the pre-shift examination report;:not safety or health violations, even 

though an operator may choose to record them. It argues that conditions that are unlikely to 

cause injury or illness are not hazardous and, because Kaczmark deemed these five underlying 

citations as "injury or illness unlikely," the citations cannot support a violation of the standard. 

Resp. Br. at 21. Consol proffers Kaczmark's own testimony, in which he states that when an 

injury is unlikely to result, the condition is not hazardous. Resp. Br. at 21; Tr. 451-52. 

I reject Consol's argument that, because a violation is unlikely to cause an injury or 

illness, it is not a hazard. In essence, Consol is arguing that a violation must be at least 

reasonably likely to result in an injury or illness in order to constitute a hazardous condition. The 

Commission has previously rejected this argument. While examining subpart (b) of this 

standard, the Commission has stated that ''the plain language ... of section 75.360(b) does not 

specify that hazardous conditions are only those reasonably likely to result in serious injury." 

Enlow Fork Mining Co., 19 FMSHRC 5, 14 (Jan. 1997). Section 75.360(f) also makes no such 

qualification. Furthermore, although the standard does not define the term "hazardous 

condition," the Commission, in discussing section 75.360(b), has held: 

[B]ased on its dictionary definition, a "hazard" denotes a measure 

of danger to safety or health. The Commission has approved the 

definition of "hazard" as "a possible source-of peril, danger, 

duress, or difficulty," or "a condition that tends to create or 

increase the possibility of loss." 

Id. (citations omitted). Therefore, while it may not have been reasonably likely that the 

combustible materials in the stoppings would ignite, since there was no identifiable ignition 

source in the vicinity, nor that the holes in the stoppings would expose :miners to gas or dust, 

since the air was vented to the return without significant compromise to the stoppings, there was 

a possibility that these incidents could occur, albeit low. Additionally, because mining had 

substantially advanced past the cited areas, and there had been an appreciable build-up of dust 

and dirt in the areas, as well as the tightness of the wedges used to secure the stoppings, I am 

persuaded that the holes and the unsealed combustible materials in the stoppings existed prior to 

32 FMSHRC Page 553 
the pre-shift examination. I also find that the conditions were obvious, and that Consol has not 

proffered any evidence proving otherwise. Consequently, I conclude that the conditions were 

hazardous, obvious,· and should have been recorded in the pre-shift examination report. 

Respecting the remaining four conditions, Consol argues that they do not support Order No. 

7073382 because they, too, were not hazards. Kaczmark testified that the rib rolls obstructing 

the clearance on the tight side of the belt had probably existed for more than a week since lateral 

pressure from continued mining puts pressure on the ribs, which, over time, weakens and crushes 

the coal, creating a rib roll. Tr. 298 .. According to Kaczmark, this is not a process that could 

occur within a matter of hours, because it takes time for the ribs to crush the coal and roll in. He 

further stated that the rolls were actually "higher than the belt itself," making them very visible 

from the walkway side of the belt. Tr. 298-99. He described the obstructed walkway as slippery 

and sitting between a solid block of coal on the one side, and a fast moving belt on the other side. 

Tr. 295-98. This was a hazard, in his opinion, because miners have to walk on the tight side of 

the belt daily to install monorail and replace rollers. Tr. 294-95, 417. 

Consol asserts, to the contrary, that this violation was based on a safeguard issued to the 

mine, and was not a hazardous condition, in and of itself. As previously stated, the tight side of 

the belt is only traveled when maintenance is needed, and is not a travelway. Additionally; Huth, 

testifying to the state of conditions at the time ofKaczmark's inspection, stated that the rib rolls 

were not in any areas where monorail was being installed or would be in the near future. Tr. 576. 

Monorail is installed a few blocks from the face, which was situated at the last crosscut, number 

31 Yi. Tr. 577-78. Although Kaczmark deemed this a hazardous condition, Consol points out 

that he gave the company one week to clean it up. Tr. 424-26. The fact that the violation may 

have been based on a safeguard does not make the condition any less hazardous. Consol has 

offered no evidence indicating that the rib rolls may have occurred after Despot's examination, 

nor has it argued that the rolls were somehow concealed or difficult to spot by the pre-shift 

examiner. In fact, Kaczmark credibly testified that the rib rolls were very visible from the wide 

side of the belt. I find that the condition existed at the time of the pre-shift examination, that it 

was obvious, and that the pre-shift examiner should have identified arid recorded it. 

Kaczmark also concluded that the three rollers turning in loose, black coal had not 

occurred after the pre-shift examination, because the belt had been running during the entire shift 

and there were piles of coal fines in various locations along the belt. Tr. 323, 327. The 

accumulation under the rollers was 12 inches long and 6-8 eight inches deep. Resp. Ex. R-2. 

Additionally, Kaczmark testified that the belt was rubbing the stand with such friction that it 

emitted a smell, which was a sign ofbeat. Tr. 323-24. In his opinion, continued heat would have 

led to a belt fire. Tr. 324. As a result ofKaczmark's observation, Consol took the belt out of 

operation. Tr. 324-25. After the belt was shut down, Kaczmark did not touch the rollers to feel 

if they were hot. Tr. 387-88. 

Consol argues that this condition could have been missed by any pre-shift examiner. 

There are 528 rollers over the 1.5 mile stretch at issue. Out ofthe 528, there were only three 

rollers touching accumulations. Tr. 598. Moreover, the condition was present on the tight side 

32 FMSHRC Page 554 
of the belt where workers only go to perform maintenance, and not the wide side, the travel side. 

Tr. 379-380. Huth testified that it is company policy that the men, including the pre-shift 

examiners, are not permitted to walk the tight side of the belt. Tr. 620 .. To see rollers on the 

tight side, Huth stated, one has "to get down on a knee and get low to see across," because the 

"belt runs pretty close to the ground." Tr. 592; see also Tr. 381-82. When miners are conducting 

pre-shift examinations, they periodically get down on bended knee to look at the tight side of the 

belt. Tr. 592-93. Kaczmark admitted that the condition was not visibly apparent and stated that 

he smelled the belt rubbing, which is what caused him to look down at the rollers on the tight · 

side. Tr. 389, 391-92. He went on to opine that it is possible that the pre-shift examiner could 

have missed the condition because there may have been no smell several hours earlier and, thus, 

it would not have caught his attention. Tr. 391-93. On the other hand, Huth testified that during 

the inspection, he did not smell anything, nor did Kaczmark mention the smell. Tr. 590-91. As 

support, Consol points to Kaczmark's and Huth's notes, neither of which make mention of any 

smell. Tr. 388-390, 590-91. Kaczmark also acknowledged that he did not see any smoke. Tr. 

388-89. 

Although, it is likely that the condition existed at the time of Despot's pre-shift 

examination, the record does not establish that the condition was obvious. The condition was on 

the side of the belt that is n,ot routinely traveled, and was positioned such that one would have to 

kneel down to see it. Kaczmark admitted that it was the smell that prompted his attention. 

Although it can be challenging for a pre-shift examiner to identify all hazards, particularly in a 

case such as this where the run is long and contains a high number of rollers, and where the 

affected ones are operating on the less visible side of the belt, this condition has such potential 

for harm that heightened attention must be paid to the examinations. Huth testified that, in 

general, pre-shift examiners usually take one to two hours of the three hours allotted to complete 

their examinations. Tr. 620-22. Especially in situations such as this, however, where the 

condition of rollers on the travel side of the belt suggest that similar conditions may exist on the 

tight side, exaniinen; should be more thorough. Therefore, I find that a more thorough 

examination was required and, that the condition should have been identified and recorded in the 

pre-shift report. 

Kaczmark also observed two rips in the guarding at the take-up pulley. He believed that 

the condition had existed for more.than one shift because of the blackened rips in the plastic 

guard, which color would have been pure white when the ripping initially occurred. Tr; 317, 

320-21. Because the miners travel over uneven, slippery bottom along the belt line, they are at 

risk for trips and falls into the belt, which is moving at 300-400 feet per minute. Tr. 318, 322. 

Consol counters that Kaczmark's contention, that discoloration of the rips is an indicator of how 

long the condition existed, is unfounded. The company points out that, in Kaczmark's notes on 

this citation, there is no notation of discoloration. Tr. 431--44. Kaczmark also failed to mention 

discoloration in his deposition, when discussing how long the hazard had existed. Tr. 431-44. 

Huth offered an alternative explanation, stating that the rips could just as well have been 

discolored by a detached belt flapper coated with coal, as it flapped along as the belt ran. 

Tr. 599-603. This could occur very quickly and could have happened at any time, including after 

32 FMSHRC Page 555 
the pre-shift examination. Tr. 601-02. I find Huth's explanation just as plausible as Kaczmark's 

and, therefore, conclude that, from the evidence as a whole, there is no sure way of determining 

when the rips occurred. Because they could have occurred subsequent to the pre-shift 

examination, I conclude that this condition does not support the inadequate shift violation. 

The final hazardous condition concerns a visible crack in the roof along a travelway. 

Tr. 314. The crack was separated from the solid coal by nine inches, and ran 14 feet back into 

the stopping in the number 23 Yi crosscut, a portion of which extended along the walkway. 

Ex. R-2; Tr. 376-77. Kaczmark testified that the supporting straps were starting to show signs of 

stress from the weight of the weakening roof. Tr. 373-74. He believed that the crack existed for 

more than one shift, because rockdust had already settled into the crack and covered rock that 

would have been shiny if the crack had been new. Tr. 314; Ex. R-2. This condition was 

hazardous, the Secretary asserts, because it could have led to a roof fall over a travelway used by 

mine examiners and belt shovelers. Tr. 315. Consolcounters that a roof fall was not reasonably 

likely to occur because the support straps were still in place and the roof bolts were securely 

implanted. Tr. 588-89; Resp. Br. at 21. The company also argues that the existence ofrockdust, 

alone, is not sufficient to demonstrate that the condition existed prior to the shift in question. I 

fmd that the condition was a hazard, that it was obvious, and that the presence of rockdust, 

coupled with visible stress on the roof straps, make it more likely than not that the condition 

existed at the time of the pre-shift examination. 

I conclude that at the time of the pre-shift examination, there were open holes in 

stoppings, holes containing combustible materials in stoppings, and rib rolls on the tight side of 

the belt that should have been identified as hazardous conditions and recorded in the pre-shift 

report. Likewise, although the rollers turning in coal accumulations on the tight side of the belt 

may not have been obvious, and the roof supports may have been holding steady, Consol should 

have identified the conditions as hazards and recorded them in the pre-shift report. Therefore, I 

find that the Secretary has proven that Consol violated section 75.360(f). 

B. Significant and Substantial 

ill Mathies Coal Co., 6 FMSHRC 1,3-4 (Jan. 1984), the Commission set forth four 

criteria thatthe Secretary must establish in order to prove that a violation is S&S under National 

Gypsum: 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. See also Buck Creek Coal, Inc. 

v. FMSHRC, 52 F.3d 133; 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir, 1988), affg 9 FMSHRC 2015,2021 (Dec. 1987) (approving Mathies criteria). 

The fact of the violation has been established. The focus of the S&S analysis here is 

whether the violation was reasonably likely to result in an injury producing event. In U. S. Steel 

Mining Company, the Commission provided further guidance: 

32 FMSHRC Page,556 
We have explained that the third element of the Mathies formula 

"requires that the Secretary establish a reasonable likelihood that 

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

injury." We have emphasized that, in accordance with the 

language of section 104(d)(l), it is the contribution of a violation 

to the cause and effect of a hazard that must be significant and 

substantial. 

U S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985) (citations omitted). Openings and 

combustible materials in stoppings, rib rolls, combustible coal accumulations, and inadequate 

roof support over travelways are serious conditions that could result·in injuries ranging from cuts, 

bruises, sprains, broken bones and contusions to fatalities. All conditions presented discrete 

safety hazards, e.g., slip and fall, the possibility of fire or explosion, and roof fall. If any of these 

events were to occur, it is reasonably likely that injuries resulting to miners would be of a 

reasonably serious nature. 

An evaluation of the reasonable likelihood of injury should be made in the context of the 

length of time that the violative condition existed prior to the citation and the time it would have 

existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 

(Dec. 2005); US. Steel Mining Co., 6 FMSHRC 1573(July1984). Moreover, resolution of 

whether a violation is S&S must be based "on the particular facts surrounding the violation." 

Texasgulf, Inc., 10 FMSHRC 498, 501(April1998); Youghiogheny & Ohio Coal Co., 

9 FMSHRC 2007 (Dec. 1987). 

It has been established that injury was unlikely to result from the open holes in the two 

stoppings and the three stoppings filled with combustible materials. Furthermore, the three 

stoppings with ~ombustible materials were also unlikely to result in injury since there was no 

scoop present, nor any other identifiable ignition source. With regard to the rib rolls, I credit 

Ruth's testimony andlind that a slip and fall hazard was not reasonably likely to occur because 

the tight side of the belt is not regularly traveled, and the rib rolls were not in any areas where 

monorail was being installed. 

Respecting the rollers tlirning in coal accumulations, the Commission has established that 

a coal accumulation violation is S&S where potential ignition sources are posed by, among other 

things, frictional contact between belt rollers and accumulations, and the belt rubbing against the 

frame. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994). Understanding that 

there are a vast number of rollers along the E-14 longwall belt, some on the less obvious, tight 

side, and the challenge this presents to pre-shift examiners, I, nevertheless, cannot overlook the 

fact of the rollers that were turning in coal accumulations, and that this frictional contact was a 

possible source of ignition. 4 If this condition had been allowed to persist, it is reasonably likely 

4 On cross-examination, Kaczmark stated that there was no possibility that the coal 

accumulations under the rollers were wet. However, at his deposition, he admitted that he did 

32 FMSHRC Page 557 
that it would have led to a fire or explosion. fu addition, the belt rubbing the structure could also 

have generated a spark, thus, presenting another ignition source. 

With regard to the crack in the roof, the "adequacy of particular roof support or other 

control must be measured against the test of whether the support or control is what a reasonably 

prudent person, familiar with the mining industry and protective purpose of the standard, would 

have provided in order to meet the protection intended by the standard." Cannon Coal Co., 

9 FMSHRC 667, 668 (April 1987). As previously indicated, the straps supporting the roof were 

showing signs of stress from the weight of the weakening roof. Huth conceded that the straps 

''were bent down some from that piece falling," but stated that "that is relatively common for the 

side of the strap," and that the straps were still in place, working as intended. Tr. 588:--89. The 

bolts were also securely implanted in the roof and, according to Huth, if the supports were not 

working, more of the bolts would have been visible. Tr. 589. Consequently, Consol asserts that 

there was no reasonable likelihood of a roof fall. I am not persuaded. The extensive crack, along 

with the signs of stress on the straps from the weakening roof, were indicative of adverse roof 

conditions or, at the least, that the roof was changing, such that adjustments to the roof supports 

were warranted. If normal mining operations had continued, uninterrupted, I find that the 

condition would have been reasonably likely to result in a roof fall in an area where.miners 

worked and traveled. 

I conclude that the coal accumulations and the crack in the roof were reasonably likely to 

result in injury causing events, and that the resulting injuries would be serious. I find that these 

hazards, which Consol failed to adequately identify in its pre-shift examination, support the 

Secretary's allegation that Consol's violation was S&S. Accordingly, I affirm the Secretary's 

S&S finding. 

C. Unwarrantable Failure 

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," 

or a "serious lack of reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal Co., 

13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136 (approving the 

Commissions's unwarrantable failure test). The Commission has recognized the relevance of 

not note the moisture level of the accumulations in his notes, and that it was indeed possible that 

the accumulations were damp to wet. Tr. 384-85. At hearing, Kaczmark conceded that making 

notations of everything he observes is important, because these factors are used in determining 

the likelihood of a fire. Tr. 387. I do not find Kaczmark's testimony that the coal fines were dry 

credible, because of his conflicting statements and his admission that he did not examine them 

for moisture content. fu any event, even if the coal had been wet, the Commission has 

recognized that wet coal can dry out and ignite. See Black Diamond Coal Mining Co., 

7 FMSHRC 1117, 1121(Aug.1985). 

32 FMSHRC Page 558 
several factors in determining whether conduct is "aggravated" in the context of unwarrantable 

failure, such as the extensiveness of the violation, the length of time that the violation has 

existed, the operator's efforts in eliminating the violative condition and; whether the operator has 

been put on notice that greater efforts are necessary for compliance. See Consolidation Coal Co., 

22 FMSHRC 328, 331(Mar.2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 

1994). The Commission has also considered whether the violative condition is obvious, or poses 

a high degree of danger. Windsor Coal Co., 21 FMSHRC 997, I 000 {Sept. 1999) (citing 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 

14 FMSHRC 1125, 1129(July1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988); 

Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984)). Each case must be examined on its 

own facts to determine whether an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing Consol, 

22 FMSHRC at 353). Negligence is the failure to meet the standard of care required by the 

circumstances. 

The Secretary argues that the inadequate pre-shift examination was-the result of Consol's 

unwarrantable failure because the hazards missing from the report were extensive, obvious, 

posed a high degree of danger, and existed long enough for miners to begin working in the 

hazardous areas. Resp. Br. at l 0. The pre-shift examination report was signed by the foreman 

and mine manager, putting Consol on notice of the conditions. I find, however, that there are 

mitigating factors. The weight of the evidence shows that the coal accumulations on the tight 

side of the belt were not obvious. There was no visible smoke to speak of: and fuspector 

Kaczmark conceded that there may have been no smell at the time of the pre-shift examination. 

It is also clear that, but for the smell of the rollers, Kaczmark, too, would have missed the cited 

accumulations. Regarding the roof condition, although the straps were not in optimal condition, 

they, and the roof bolts, were securely in place. 

Consequently, I find that the Secretary has not met her burden of establishing aggravated 

conduct, and that the violation was a result of Consol's moderate negligence, not its 

unwarrantable failure to comply with the standard. Accordingly, the Order shall be modified to a 

section 104(a) citation. 

Citation No. 7071787 

Order No. 7071787 was issued byMSHA Inspector Radolec for a violation of30 C.F~R. 

§ 75.400 for combustible coal accumulations along the 3 North Number 1 main conveyor belt. 

Ex. G-4; Stip.10. Section 75.400 provides: 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings, 

or on diesel-powered and electric equipment therein. 

32 FMSHRC Page 559 
30 C.F.R. § 75.400. Rodolec determined that the violation was highly likely to result in injury or 

illness that would be permanently disabling, that the violation was S&S, that one person was 

affected, and that the· operator's negligence was high. Ex. P-4. The Order was issued under· 

section 104(d)(l) of the Act, alleging Consol's unwarrantable failure; subsequently, it was 

modified to a 104(d)(l) citation. Rodolec described the "Condition or Practice" as follows: 

An accumulation of combustible materials consisting of coal, coal 

fines and coal dust exist[ s] on the 3 North No. 1 Main Conveyor 

Belt, starting at the end of the conveyor belt take-up and continuing 

inby to number 5 Yz.crosscut. These combustible accumulations 

measured from 6 feet wide by 25 feet long and from 1 inch to 12 

inches in depth under the bottom conveyor belt and belt rollers, 

behind the conveyor belt take-up. Additional accumulations of 

combustible material also existed in the inby side of the E-1 belt 

overcast to number 5 Yz crosscut. Where the combustible 

accumulations contacted the bottom of moving convey[ or] belt and 

rollers. These combustible accumulations at number 5 Yz crosscut 

measured 150 feet long by 12 to 18 inches wide and up to 10 

inches deep .. These combustible accumulation[ s] were dry 

powdery and somewhat compacted coal dust. Additional 

combustible accumulations of coal existed under bottom rollers 

that [sic] numerous locations between number 5 Yz crosscut to the 

E-1 belt overcast. These combustible accumulations under the 

bottom belt and conveyor belt rollers consisted of a shovel full to 

needing extensive shoveling to completely remove the combustible 

accumulations under numerous conveyor belt roller[ s] and bottom 

. conveyor belt. 

Ex. P-4. Respondent challenges the S&S designation of the citation, as well as the unwarrantable 

failure allegation. Resp. Br. at2-7. 

A. Significant and Substantial 

The fact of the violation has been established. Stip 10-16. The combustible coal 

accumulations presented the possibility of a fire or explosion in the cited area. If either event 

were to occur; it is reasonably likely that injuries resulting to miners, e.g., burns or smoke 

inhalation, would be of a reasonably serious nature. The focus of the S&S analysis here turns on 

the third element of the Mathies criteria, i.e., whether the violation was reasonably likely to result 

in an injury producing event. 

The Secretary argues that several factors support a conclusion that a fire or explosion was 

reasonably likely to occur: that the accumulations consisted ofloose, dry coal dust along a belt 

line with the belt running on packed and in loose coal; that the belt and rollers were in contact 

32 FMSHRC Page 560 
with the coal; that the belt was rubbing against the conveyor framework which had been cut in 

two; that some of the accumulations were dry; that there were damp to wet accumulations being 

dried by the rubbing of the belt and; that there was a friction source present. In support of her 

position, the Secretary points to Amax, a case in which the Commission upheld the ALJ's finding 

that an extensive accumulation of loose, dry coal and float coal dust along a belt line, with the 

belt running on packed, dry coal and in loose coal, was a potential source of ignition and showed 

a reasonable likelihood of an injury causing event. Amax Coal Co., 19 FMSHRC 846 (May 

1997). As further support, the Secretary cites Mid-Continent, 16 FMSHRC 1218, in which the 

Commission vacated the ALJ's finding that 12-inch high, mostly dry coal accumulations, that 

were in contact with the belt and the belt rollers, as well as the conveyor framework that was 

being rubbed by the belt, were not reasonably likely to result in a fire because the coal was of low 

combustibility. 

Consol argues that there was no likelihood ofa fire or explosion, and ifthere were, it was 

only slight. The accumulations were identified in August, which, because of seasonal warm 

weather, is when moisture is prevalent in mines in that region. Resp. Br. at 13-14. The moisture 

in the air is absorbed by the coal and accumulations, which makes them less likely to ignite than 

dry coal. Resp. Br. 14. Radolec's notes, contrary to his testimony at hearing, confirmed that the 

first accumulation consisted of "damp, wet coal fines," and "damp coal dust." Ex. 9, p. 12; 

Tr. 106. Consol asserts that this accumulation was 6 Yi to 7 feet below the belt, so there was no 

friction to speak of or potential ignition source. Tr. 103. Additionally, with respect to the second 

accumulation, the company argues that only three rollers were making contact with 

accumulations over the entire 600 feet of inspected belt. Resp. Br. at 15; Tr. 112-13. Although 

bearings in rollers can wear over time and produce heat caused by friction, Radolec admitted that 

the rollers were not hot. Resp. Br. at 15; Tr. 112-13. The heat gun used by Overfield to gauge 

the temperature of the affected rollers indicated that the rollers were only74 degrees,·wherea5 

Radolec testified that the temperature of the coal would have to be over 500 degrees to ignite; 

according to Workley, 300 degrees is the threshold temperature. Tr. 121-22, 650. Radolec also 

conceded that the area where the belt was rubbing the belt structure was not hot from friction. 

Tr. 123-24. There was also no possibility of ignition near the third accumulation because neither 

the belt nor the rollers were rubbing the accumulations and the rollers were not generating heat. 

Tr. 128; Resp. Br. at 16. 

When examining the reasonable likelihood of a fire or explosion, the Commission 

considers whether a "confluence of factors" was present based on the particular facts surrounding · 

the violation, including the extent of the accumulations and the presence of possible ignition 

sources. Amax, 19 FMSHRC at 848 (quoting Texasgulf, Inc., 10 FMSHRC 498, 500-03 (Apr. 

1988). The Commission also considers whether methane was present, and what type of 

equipment was in the area. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (quoting Utah 

Power &Light Co., 12 FMSHRC 965, 970-71(May1990)); Texasgulf, 10 FMSHRC at 500-03. 

In a factually similar case, the Commission determined that a violation was S&S where 

there were "potential ignition sources such as frictional contact between the belt rollers and the 

32 FMSHRC Page 561 
accumulations, the belt rubbing against the frame, electrical cables for the shark pump, the 

electrical devices for the longwall and one area in the longwall that was not being maintained." 

Mid-Continent Resources, Inc., 16 FMSHRC at 1222. The Commission further found that it was 

immaterial that there was no identifiable hot spot in the accumulations because continued normal 

mining operations must be taken into account when evaluating the.circumstances. Id. 

I reject Consol's argument that the violation was not S&S because coal is less 

combustible during summer months when its moisture content is high. At best, damp to wet coal 

may delay combustion but, as the Commission has previously concluded, "even absent a fire, 

accumulations of damp or wet coal, if not cleaned up, can eventually dry out and ignite." Black 

Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 5, 1985). "A construction of the 

standard that excludes loose coal that is wet or that allows accumulations of loose coal mixed 

with noncombustible materials, defeats Congress' intent to remove fuel sources from mines and 

permits. potentially datigerous conditions to exist." Id. Further, as Consol has done little more 

than simply state that fire resistant belts were in use at the mine on August 9, without a more 

detailed explanation of their retardant capabilities, I am unable to give this argument significant 

weight. Consol has simply failed to support its assertion that the belts were unlikely to catch fire. 

I do not believe, however, that there was an ignition source near the first accumulation, 

which was situated 6 Yz to 7 feet below the belt. Tr. 103. Radolec conceded that there "was a 

slim chance" of these accumulations igniting. Tr. 103-04. The only ignition source would have 

been from the belt, itself, catching fire and flames falling onto the accumulations seven feet 

below. Tr. 103. With regard to the third accumulation, neither the belt nor the rollers were 

rubbing the accumulations, and the Secretary did not allude to any other source of :friction that 

might have led to an ignition. Radolec, acknowledged that if a fire started, it was "not likely that 

it would start there." Tr. 129; Furthermore, the Secretary asserts that there was energized 

equipment in the area. However, the fact that electrical equipment could somehow result in an 

ignition is in8ufficient to establish that the violation was S&S. See Amax Coal Co., 18 FMSHRC 

1355, 1358-59 (Aug. 1996). Radolec failed to specifically identify any particular piece of 

equipment that may have been a potential source of ignition, or any identifiable defects in any 

equipment that may have produced a spark that would ignite these particular accumulations. 

The second group of accumulations was extensive. Radolec testified that these 

accumulations at the number 5 Yz crosscut measured 150 feet long, between 12 and 18 inches 

wide, and up to 10 inches deep. Tr. 40, 111. fu other locations, there were accumulations of 

float coal dust on the mine roof and ribs, and on top of the overcast, metal conveyor belt 

structures, and electrical cables along the belt. Tr. 38. There were also three rollers turning in 

the accumulations which were dry, powdery, and compacted, the bottom conveyor belt was 

rubbing the coal dust for a distance of 150 feet, and the belt had cut in half one of the metal belt 

stands. Tr. 40-41. 

I find that the three rollers turning in the second group of accumulations, which were dry, 

powdery, and compacted,. were a potential source of ignition. I further find that the bottom 

32 FMSHRC Page 562 
conveyor belt rubbing the coal and the conveyor belt structure was also a potential ignition 

source. Consol's arguments that the rollers were not hot and only measured 72 to 7 4 degrees, 

and that the belt and rollers were not rubbing the,accumulations atthe time ofRadolec's 

inspection, do not take into account the likelihood of these conditions worsening, if not 

corrected, as normal mining operations continued. The likelihood is further enhanced by virtue 

of the float coal dust at the number 5 Yz crosscut, which could propagate a mine fire or explosion. 

I find that the accumulations in question were reasonably likely to result in an ignition of a fire, 

explosion or propagation thereof. Accordingly, I find that the violation was S&S. 

B. Unwarrantable Failure 

The Secretary argues that the violation was the result of Consol's unwarrantable failure 

because the accumulations were extensive, obvious, and posed a high degree of danger. Resp. 

Br. at 10. Additionally, the accumulations had been recorded in the pre-shift examination report 

for the shift during which the MSHA inspection was conducted, as well as the report for the day 

before, showing that the hazardous condition had existed for sufficient time to support an 

unwarrantable failure finding. The pre-shift examinations were signed by the foreman and mine 

manager, thereby putting Consol on notice of the condition. 

It has already been established that the accumulations were extensive, and that is further 

evidenced by the fact that it took six miners four hours to clean up the accumulations before the 

conveyor belt could be restarted. Tr. 62. The accumulations were obvious because Radolec 

spotted them on both the wide and tight sides of the belt while he was walking the belt line. 

Tr. 38. Even if the pre-shift examiner had only spotted the accumulations on the wide side of the 

belt, they were so extensive and obvious that he should have anticipated that there could be 

. accumulations on the tight side as well, even if not readily visible to him. With regard to the 

length of time that the condition existed, the 7th Circuit has concluded that extensive 

accumulations that were present at least one shift, and not removed after one pre-shift 

examination, provided an adequate basis to establish an unwarrantable failure finding. Buck 

Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,136 (7th Cir. 1995); see also Windsor Coal Co., 

21FMSHRC997 (Sept. 1999) (extensive accumulations existing for more than one shift 

supported unwarrantable failure finding); Mid Continent Res.,Inc., 16 FMSHRC 1226, 1232 

(June 1994) (failure to correct coal.accumulations recorded in pre-shift examination reports over 

two days constituted unwarrantable failure). In this case, pre-shift examination reports indicate 

that accumulations existed for at least two shifts. 

Additionally, in examining an unwarrantable failure finding related to section 75.400, the 

Commission has recognized that: 

[P]ast discussions with MSHA about an accumulation problem 

serve to put an operator on heightened scrutiny that it must increase 

its efforts to comply with the standard. Enlow Fork Mining Co., 19 

FMSHRC 5, 11-12 (Jan. 1997). Likewise, ahighnumberofpast 

32 FMSHRC Page 563 
violations of section 75.400 serve to put an operator on notice that 

it has a recurring safety problem in need of correction and the 

violation history may be relevant in determining the operator's 

degree of negligence. Peabody, 14 FMSHRC at 1263-64. 

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). 

Consol was on notice that greater corrective measures were required to prevent coal dust 

accumulations by virtue of the fact that it had engaged in numerous, regular discussions with 

MSHA representatives about the issue in the past, several of which Inspector Newhouse testified 

to having personally participated in. Furthermore, Consol had been cited for violating section 

75.400 seventy-two times during the previous year. Tr. 172; see Consolidation Coal Co., 

23 FMSHRC at 595 (ALJ' s finding of no unwarrantable failure reversed where operator received 

previous warning from MSHA regarding "borderline to substandard" clean-up efforts, and had 

received 88 citations during the previous two years for violations of section 75.400); Amax Coal 

Co., 19 FMSHRC 846, 851(May1997) (ALJ's finding ofunwarrantable failure affirmed where 

MSHA had repeated discussions with mine management regarding section 75.400 compliance, 

and operator received 98 citations over 10 months for violating section75.400). 

The record also supports a finding that Consol was on notice of the violative condition by 

virtue of the mine manager's signature on the pre-shift examination reports for August 8 and 9, in 

which the conditions had been recorded. Consol admitted that its efforts consisted of only 

attempting to clean the wide side of the belt, and not the tight side. Tr. 539, 553. It has also been 

established that the violation posed a significant degree of danger, in that accumulations were 

reasonably likely to lead to, or propagate a mine fire or explosion. Therefore, I find that 

sufficient evidence exists to support a conclusion that the cited conditions were the' result of 

Consol's unwarrantable failure. 

Order No. 7073658 

Order No. 7073658 is factually similar to Citation No. 7071787. The Order was issued 

by MSHA Inspector Rihaley for a violation of section 75.400 for combustible coal accumulations 

and/or coal fines along the Number 1 main belt conveyor. Stip. 28. Rihaley determined that it 

was highly likely that the violation would result in an injury or illness involving lost work days or 

restricted duty, that the violation was S&S, that five employees were affected, and that the 

operator's negligence was high. The Order also alleges that the violation was the result of 

Consol's unwarrantable failure to comply with the standard. Ex. P-6. The "Condition or 

Practice" is described as follows: 

There was an accumulation of packed coal fines under and 

in contact with a bottom roller at 4 Yz crosscut on the # I Main belt 

conveyor. Also at this location the bottom of this belt was rubbing 

this accumulation for a distance of approximately 3 Yz feet and was 

32 FMSHRC Page 564 
dry and dusty where it was rubbing. 

5 x-cut- stuck bottom roller with dry coal fines built up 

around the roller and in contact with the belt. 

Take-up pulley - turning in coal tight side, dry, 3 feet in 

length, 2 feet width and height. 

8 x-cut - half of bottom roller missing with belt rubbing 

the structure and coal fines, also the next inby bottom roller was 

turning in coal fines and a 2 foot section of belt. The fines were 

dry and producing visible dust. 

9 x-cut -. 1 stuck bottom roller and 3 inby rollers turning 

in coal fines, also the belt was rubbing these fines at each location 

for a distance of at least 1 foot. 

10 Yz x-cut - packed coal fines in contact with a bottom 

roller and 4 feet ofbel~ dry and producing visible dust. 

13 Yz x-cut- 1 stuck and broken roller and another 

turning in packed coal. 

14 x-cut and 14 Yz crosscut-bottom rollers turning in 

coal. 

15 x-cut-bottom roller and from 8 to 10 feet ofbelt in 

contact with dry coal fines, producing visible dust. 

14 x-cut - coal spillage tight side, 40 feet in length, 2 to 3 

feet width and 6 to 16 inches in depth. This condition also existed 

at intermittent locations to inby 16 x-cut. 

There was coal dust and coal float dust intermittently 

deposited on the previously rockdusted surface of the #1 Main belt 

from the head roller to inby 16 x-cut, this was mostly under and on 

the tight side in the form of a film. 

' The operator may run this belt to remove the clean-up. 

The fact of the violation has been established. Stip. 28-31. Respondent challenges the 

S&S designation of the Order, as well as the unwarrantable failure allegation. Resp. Br. at 2-7. 

A. Significant and Substantial 

The focus here is the third element of the Mathies test, i.e., whether the violation was 

reasonably likely to result in an injury producing event. Rihaley' s testimony describes extensive 

accumulations along the Number 1 main belt conveyor and likely ignition sources. Tr. 217-31. 

The rollers turning in coal accumulations at a minimum of five different locations afong 

the belt, the belt rubbing the structure at the number 8 crosscut, and the belt rubbing coal fines at 

five different locations, all present potential ignition sources. There were also stuck and broken 

rollers which could generate sparks. I find that the accumulations were reasonably likely to result 

in an ignition of a fire, explosion, or propagation thereof Accordingly, I find that the violation 

32 FMSHRC Page 565 . 
wasS&S. 

B. Unwarrantable Failure 

The accumulations were extensive, and existed at numerous locations along the Number 

1 main belt conveyor. Although Rihaley failed to describe the dimensions of each accumulation 

in questio~ there were several instances where the accumulations were high enough to reach the 

bottom rollers. The accumulations were easily seen by Rihaley as he walked along the belt line 

and, therefore, were obvious. Tr. 226. Much like the previous citatio~ several conditions were 

recorded in prior pre"".shift examination reports, going back two shifts. For the same reasons 

applied to Citation No. 7071787, lfind that sufficient evidence exists to support a finding that 

the cited conditions occurred as a result of Consol's unwarrantable failure to comply with the 

standard. 

IV. Penalty 

While the Secretary has proposed total civil penalties in the amount of $19,300.00 for 

these violations, the judge must independently determine the appropriate assessment by proper 

consideration of the six penalty criteria set forth in section l lO(i) of the Act, 30 U.S.C. § 820(j). 

See Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1993), aff'd, 763F.2d1147 (7th Cir. 

1984). 

Applying the penalty criteria, I find that Consol is a large operator with a one-year history 

of72 violations of30 C.F.R. § 75.400, which lfind to be significant As stipulated by the 

parties, the total proposed penalty will not affect Respondent's ability to continue in business. 

Stip. 8. I also find that Consol demonstrated good faith in achieving rapid compliance, after 

notice of the violations. 

The remaining criteria involve consideration of the gravity of the violations and Consol's 

negligence in committing them. These factors have been discussed fully, respecting each 

citation. Therefore, having considered the six penalty criteria, the penalties are set forth below. 

Order No. 7073382 

The Secretary proposed a civil penalty of $5,600.00 for this violation. It has been 

established that this S&S violation of 30 C.F.R. § 75.360(f) was reasonably likely to cause an 

injury that would result in lost workdays' or restricted duty, that it was due to Consol's moderate· 

negligence. The Order shall be modified to a citation issued pursuant to section 104(a) of the 

Act. Applying the civil penalty criteria, I find that a penalty of $2,500.00 is appropriate. 

Citation No. 7071787 

The Secretary proposed a civil penalty of $6,200.00 for this violation. It has been 

32 FMSHRC Page 566 
established that this S&S violation of 30 C.F.R. § 70.400 was highly likely to cause an injury that 

would be permanently disabling, that it was due to Consol's high negligence and unwarrantable 

failure to comply with the standard, and that it was timely abated. Applying the civil penalty 

criteria, I find that a penalty of $6,200.00 is appropriate. 

Order No. 7073658 

The Secretary proposed a civil penalty of $7,500.00 for this violation. It has been 

established that this S&S violation of 30 C.F.R. § 70.400 was highly likely to cause an injury that 

would result in lost workdays or restricted duty, that it was due to Consol's high negligence and 

unwarrantable failure to comply with the standard~ and that it was timely abated. Applying the 

six civil penalty criteria, I find that a penalty of $7 ,500.00 is appropriate. 

ORDER 

WHEREFORE, Citation No. 7071787 and Order No. 7073658 are AFFIRMED, as 

issued, Order No. 7073382 is AFFIRMED, as modified, and it is ORDERED that the Secretary 

MODIFY Order No. 7073382 to a citation issued pursuant to section 104(a) of the Act,. 

30 U.S.C. § 14(a), and reduce the degree of negligence from "high" to "moderate," and that 

Respondent pay a civil penalty of$16,200.00, within 30 days of this decision. Accordingly, this 

case is DISMISSED. 

Distribution: (Certified Mail) 

/1/~f2.~. 1a~efineR.. Bulluck 

Administrative Law Judge 

Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

Rodger L. Puz, Esq., Dickie, McCamey & Chilcote, P.C., Two PPG Place, Suite 400, Pittsburgh, 

PA 15222-5402 

/sdb 

32 FMSHRC Page 567 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 19t11 Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

Mayl4, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-1585 

A.C. No. 48-01694-162385 

v. 

ARCH OF WYOMING, LLC, 

Respondent 

Elk Mountain Mine 

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION 

Before: Judge Manning 

This case is before me upon a petition for assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"). 

The Secretary filed a motion for summary decision under Commission Procedural Rule 67, 29 

C.F.R. § 2700.67. In response, Arch of Wyoming, LLC ("Arch") filed a cross-motion for 

summary decision. Both parties briefed the issues. 

On January 10, 2008, Inspector Richard Dickson with the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued Citation No. 7622039 under section 104(a) 

of the Act alleging a violation of30 C.F.R. § 77.1605(k). The citation alleges: 

The upper and lower drill benches, located in the North Elk Mtn. 

Pit area, and being approximately 300' and 200' respectively, were 

constructed without necessary berms on the outer edges. The 

vertical drop from the top bench to the lower bench was estimated 

to be 20'. The vertical drop from the lower bench to the natural 

ground was estimated to be 12' tapering to O'. Drillers and blasters 

and their vehicles are required to travel these drill benches 

extensively and frequently, which exposes them to the hazard of 

overtravel and overturning from these benches. Very high wind 

conditions and lack of visibility also exist in this pit area. 

Inspector Dickson determined that it was reasonably likely that the cited condition would injure a 

miner and that the violation was significant and substantial ("S&S"). He also determined that 

Arch's negligence was high. The safety standard provides that "[b]erms or guards shall be 

provided on the outer bank of elevated roadways." 30 C.F .R. § 77. l 605(k). The Secretary 

proposed a penalty of$2,106.00 for the citation. 

32 FMSHRC Page 568 
Inspector Dickson also issued Citation No. 7622040 alleging a violation of section 

n .1713( a) because he believed that the conditions cited in the previous citation "should have 

>een noticed and corrected by a certified person during the pre-shift examination of the pit and 

mrrounding areas." He determined that it was unlikely that the cited condition would injure a 

niner and that the violation was not S&S. He determined that Arch's negligence was high and 

he Secretary proposed a penalty of $224. The standard provides that "[a ]t least once during each 

1Vorking shift ... each active working area and each active surface installation shall be examined 

>Y a certified person designated by the operator to conduct such examinations for hazardous 

:onditions and any hazardous conditions shall be reported to the operator and shall be corrected 

>ytheoperator." 30C.F.R. §77.1713(a). 

The parties stipulated to key facts and also introduced other documents as attachments to 

heir briefs. The stipulations are as follows: 

1. Respondent Arch of Wyoming, LLC ("Arch") owns the Elk Mountain Mine 

(Mine ID 48-01694) (the "Mine'} 

2. Arch is engaged in mining operations in the United States, and its mining 

operations affect interstate commerce. 

3. The ALJ has subject matter and personal jurisdiction over the dispute in this case. 

4. Arch is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. §§ 801-965. 

5. The Elk Mountain Mine is a surface coal mine. 

6. Elk Mountain utilizes an open pit mining method and uses drill benches to create 

blast holes. 

7. The drill benches are constructed using a Caterpillar D-lON bulldozer. 

8. The benches are built to. provide the drill with a safe arid flat working surface on 

which to drill. 

9. Once the drill benches are constructed, the shot pattern is then "staked" out in the 

field on a grid pattern with each blast hole at the desired "burden and spacing" 

(length and width); in this case, on a 25-foot x 25-foot grid. 

10. The shot pattern is designed based on a desired pit width and anticipated length of 

shot which is determined by experience of drill pattern time. 

32 FMSHRC Page 569 
11. The blast hole drillthen begins drilling out the "gridded" pattern in a logical 

sequence that will enable the shooting crew to load each hole with explosives 

following the drill. 

12. It is at this time that the shot pattern is barricaded and "signed" so that only 

authorized personnel can enter the shot pattern. 

13. The signs read "DANGER - Blasting Area - Authorized Personnel Only." 

14. In order to load these holes, the ANFO truck needs to travel the line of blast holes 

to load the ANFO into the hole from an auger-fed tube. 

15. The ANFO truck travels hole to hole at an obvious slow rate of speed since it only 

travels 25 feet, stops, loads the hole, and then travels to the next hole. 

16. The shooters walk on the ground and load primers, delays, and shooting cord in 

each hole prior to the ANFO loading procedure. 

17. Once a hole is loaded with primers, desired delays, shooting cord and ANFO they 

can be backfilled with "stemming" which is usually the drill hole cuttings. 

18. This stemming will fill the remaining hole void once all explosives are in the hole 

so that it is filled to the ground surface and no "void" exists. 

19. In most cases, a skidder is used to perform this backfill operation. 

20. This is done in a sequence where there are a logical number of holes to be 

.· backfilled at the same time to allow for room for the skidder to work and not 

interfere with the drilling or loading operations. 

21. This backfilling is performed so that no loaded blast hole is open at a shift' s end. 

22. Once the entire shot pattern is completely loaded it is ready for detonation. 

23. All equipment and personnel, with the exception of the shooting crew, are 

removed from the area. 

24. The shooting crew then ties all of the loaded holes together with shooting cord 

and delays to blast the desired result. 

25. The entire shot pattern is then detonated from a safe distance. 

32 FMSHRC Page 570 
26. The foreman will enter the area at least once each shift during the entire process as 

outlined above to check on the drill, shooters, and inspect the area. 

27. The shooters seldom, if ever, enter the area in their vehicle (pick-up truck) since 

everything they need is usually in the ANFO truck. 

28. Traffic is kept to a minimum in an active drilling/blasting pattern. 

29. The upper drill bench was approximately 300 feet long; and 

30. The lower drill bench was approximately 200 feet long. 

31. The vertical drop from the upper drill bench to the lower drill bench was 

approximately 20 feet tapering to 0 feet. 

32. The vertical drop from the lower drill bench to the natural ground was 

approximately 12 feet, tapering down to where the lower drill bench sloped into 

the natural ground. 

33. The benches varied in width from 35 feet to 45 feet. 

34. Neither bench had berms at its outer edges. 

35. Arch was responsible for building and maintaining the drill benches at this 

location. 

36. ~oth the upper drill bench and the lower drill bench were divisions in the coal 

seam formed by the process of cutting coal from the earth. 

37. [At] approximately 12:30 p.m. on January 10, 2008, the Mine Safety and Health 

Administration ("MSHA") inspected the Mine. 

38. Richard Dickson inspected the Mine for MSHA. 

39. On January 10, 2008, there were two drill benches above the North Elk Mountain 

mining pit at the Mine. 

40. MSHA issued Citation No. 7622039 to Arch on January 10, 2008, alleging a 

violation of30 C.F.R. § 77.1605(k). 

41. Citation No. 7622039 terminated at 3:13 p.m. on January 10, 2008 after Arch 

constructed a berm, approximately 2.5 feet high, along the front edge of both the 

upper and lower drill benches. 

32 FMSHRC Page 571 
42. MSHA also issued Citation No. 7622040 to Arch on January 20, 2008, alleging a 

violation of30 C.F~R. § 77.l 713(a) because the record showing the on-shift 

examination did not note the absence ofbenns on the drill benches. 

43. Arch was responsible for conducting the daily on-shift examinations at the Mine's 

active working areas. 

44. Arch was also responsible for maintaining the record of the daily on-shift 

examinations conducted at the Mine's active working areas. 

45. Citation No. 7622040 terminated at 3:30 p.m. 

46. The parties now dispute whether a drill bench at a surface mine is an "elevated 

roadway" under 30 C.F.R. § 77.1605(k). 

4 7. Arch has never built berms on its drill benches. 

48. MSHA has never previously issued Arch any citations for berms or failing to 

identify lack of berms at Elk Mountain. 

49. There has never been a piece of equipment of any kind falling or driving off a drill 

bench at Elk Mountain. 

II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS 

A. Secretary of Labor. 

The Secretary contends that the issue in this case is relatively simple: whether a drill 

bench at a surface coal mine is an "elevated roadway" under section 77.1605(k). She maintains 

that a drill bench is such an elevated roadway and that, as a consequence, Arch was required to 

install berms on the outer banks of the drill benches at the Elk Motintain Mine. The Secretary 

argues that the Commission has previously determined that a drill bench is an elevated roadway 

under the similar safety standard applicable to metal· and nonmetal mines. El Paso Rock 

Quarries, Inc., 3 FMSHRC 35 (Jan. 1981). Several Commission administrative law judges have 

reached the same conclusion. The Secretary states that, when she promulgated that safety 

standard, she did not exempt drill benches from the scope of the standard. Finally, the Secretary 

maintains that her determination that a drill bench is an elevated roadway is reasonable and is 

entitled to deference bythe Commission. The fact that Arch's drill benches had not been 

previously cited for the lack ofbenns should not affect the validity of the citation. 

32 FMSHRC Page 572 
B. Arch of Wyomine. 

Arch maintains that drill benches are not elevated roadways. The Secretary has not 

defined the term "elevated roadway'' in her regulations. MSHA's "Haul Road fuspection 

Handbook" defines elevated roadways to include roads used "to transport coal, equipment~ or 

personnel." At least one Commission administrative law judge has determined that a bench is 

not an elevated roadway provided that no vehicles transport coal, equipment, or personnel on the 

bench. Peabody Coal Co., 6 FMSHRC 2530 (Nov. 1984) (ALJ). The drill benches at Arch are 

distinguishable from the benches discussed in El Paso Rock Quarries. ·Access to· the benches at 

Arch is controlled and limited. Haulage vehicles and through traffic are prohibited. Only the 

drill, the explosives truck, and the skidder regularly travel on the drill benches. As a 

consequence, the drill benches are working pfaces and not roadways. The Commission should 

not defer to the Secretary's interpretation of the safety standard because the plain language of the 

standard makes clear that it applies only to roadways and not to working places. Finally, it 

argues that the citations should be vacated because the Secretary did not provide adequate notice 

of her interpretation of the standard to Arch and other mine operators. 

II. ANALYSIS WITH FINDINGS AND CONCLUSIONS 

Section 2700.67 of the Commission's Procedural Rules sets forth the grounds for 

granting summary decision, as follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidaVits, shows: 

(l).That there is no genuine issue as to any material fact; and 

(~) That the moving party is entitled to summary decision as a 

matter oflaw. 

I find that there is no genuine issue as to any material fact and that the Secretary is entitled to 

summary decision as a matter of law. 

A. Citation No. 7622039 •. 

1. Fact of Violation. 

In El Paso Rock Quarries, Inc., an MSHA inspector issued a citation because the operator 

had allowed haulage trucks to be driven on a bench before berms were installed. 3 FMSHRC 36. 

The judge affirmed the citation and the operator appealed on the basis that a bench is not an 

elevated roadway. The Commission affirmed the judge and held that a bench is an elevated 

roadway. In another contested citation at issue in the same case, the operator challenged a 

citation that was issued on a elevated roadway that provided access to the fop of the quarry wall. 

The operator contested the citation because the roadway was not used to haul rock, but was used 

32 FMSHRC Page 573 
to haul explosives and to provide access to areas which were to be drilled and blasted. The judge 

vacated the citation on the ground that the standard only applied to roads used for loading, 

hauling, and dumping and that the road was not used for any of those purposes. 

1 The 

Commission reversed the judge and held that hauling explosive materials is the kind of haulage 

contemplated by the safety standard. 

Several Commission judges have also determined that benches and the area above a 

highwall can be elevated roadways, as that term is used in section 77.1605(k). S. &M. 

Constroction, Inc., 19 FMSHRC 566, 576,..77 (March 1997) (AU); Peabody Coal Company, 12 

FMSHRC 109, 114-16 (Jan. 1990) (ALJ). More recently, Judge Miller reached the same 

conclusion. Black Beauty Coal Company, 32 FMSHRC ~ slip op. at 2-4, LAKE 2008-477 

(March 25, 2010) (ALJ) (Pet.for disc. rev. granted by Comm., May 4, 2010). 

Arch relies heavily on my decision in Higman Sand & Gravel, Inc., 24 FMSHRC 87, 

104-07 (Jan. 2002) (ALJ). The facts in that case, however, differ significantly from the present 

case. In Higman, the MSHA inspector cited the operator for not installing a berm along the edge 

of a pond in the sand pit. An excavator operated at the edge of the pond to scoop out sand from 

the pond, but the inspector determined that a berm was not required for this activity. The 

inspector cited the company because a loader was operated in the area. The loader operator 

loaded haulage truck~ with the sand that had been excavated from the edge of the pond. The 

inspector also testified that he was not concerned with the haulage trucks because they did not 

travel near the edge of the pond. He said that berms were required because the loader was 

operated in the vicinity of the pond. I determined that the area in which the loader was operated 

was not an elevated roadway and that safety standard did not apply. Id. I held that the cited area 

was a ''working place," as that term is defined in section 56.2, rather than an elevated roadway . 

. The loader worked in the area loading material into dump trucks. This area was not a roadway 

but was the working place where material was being extracted from the pond. 

Arch also relies on a decision by former Commission Judge John J. Morris in Peabody 

Coal Company, 6 FMSHRC 2530, 2540-45 (Nov. 1984) (ALJ). In that case, Judge Morris 

distinguished the facts in his case from the facts present in El Paso Rock Quarries and vacated a 

citation issued for the operator's failure to install berms on its benches. The facts revealed that 

trucks operated within 10 to 12 feet of the edge of the bench at the mine operated by El Paso 

Rock Quarries. At Peabody's Black Mesa Mine, on the other hand, the benches were 120 to 140 

feet wide and trucks did not operate any closer than 60 feet from the edge of the bench. Id. at 

2541. The judge determined that these differences were "crucial." Id. at 2542. 

In the present case, the stipulations establish that the benches were used as roadways. 

The Elk Mountain Mine, a surface coal mine, uses drilling equipment to create blast holes. The 

1 The safety standard for metal and nonmetal mines provides that "[b ]erms or guards · 

shall be provided on the outer banks of elevated roadways." § 56.9300 (a). The heading for the 

standard is entitled "Loading, hauling, dumping." 

32 FMSHRCPage 574 
benches are built using a bulldozer to provide the drill with a safe~ flat surface on which to work. 

Once a drill bench is constructed, the shot pattern is staked out on a grid pattern with each blast 

hole at the desired location. The holes are on a 25-foot by 25-foot grid. 

The holes are drilled in a logical sequence and the shooting crew loads the holes with 

explosives following the drill. The area is then barricaded and a warning sign is erected so that 

only authorized miners can enter the area. The explosive material used, an ammonium nitrate 

and fuel oil mixture known as ANFO, is brought onto the drill bench in a truck. The ANFO 

truck travels the line of blast holes to load the ANFO into the holes from an auger-fed tube.· This 

truck travels at a slow rate ·or speed since it must stop every 25 feet to load the next hole. The 

shooting crew walks on the ground and install primers, delays, and shooting cord in each hole 

before the ANFO is added. Once the hole is loaded with primers,· delays, shooting cord, and 

ANFO, the holes are filled with stemming using a track vehicle called a "skidder." Drill hole 

cuttings are typically used to fill each hole to ground level. Once the holes are loaded, all 

equipment and personnel, except the shooting crew, leave the area. The shooting crew ties all of 

the holes together and then the shot is detonated. Occasionally, the shooting crew uses a pickup 

truck to enter the drill bench, but they usually ride in the ANFO truck. The upper drill bench was 

about 300 feet long while the lower bench was about 200 feet long. The benches varied in width 

from 35 to 45 feet. 

I find that Arch's reliance on Higman Sand & Gravel and Peabody Coal to be misplaced 

because they present significantly different factual situations from· the present case~ Arch points 

out that at the Elk Mountain Mine vehicles do not travel along the benches to get from one area 

of the mine to another nor do these vehicles transport material out of the area. In my decision in 

Higman, I relied on a number of factors when reaching the conclusion that the area cited was not 

an elevated roadway. The fact that vehicles did not use the area adjacenHo the pond to travel 

from one area of the mine to another or that the loader did not transport material out of the area 

were two factors I considered. They key fact, however, that differentiates that case from the 

present case is that the cited area in Higman was clearly a working place, not a roadway. It was a 

loading area for dump trucks. It is instructive to note that the MSHA inspector who issued the 

citation at Higman did not believe that berms were necessary to protect the excavator or trucks 

operating in the same area. He only required berms for the loader operator. · 

I am not bound by Judge Morris's decision in Peabody Coal and the facts there are quite 

different as well. The judge credited evidence that vehicles did not travel anywhere near the edge 

of the benches in that case. 

Ill the present case, a drill, the ANFO truck, and the skidder travel along on the bench. A 

pickup truck is driven on the bench in some instances. The fact that they do not transport 

material out of the area is not determinative. These vehicles travel along the bench to drill holes 

and load ANFO. The evidence establishes that the benches are 35 to 45 feet wide, are used as 

roadways, and are elevated. It is well established that the safety standard is not limited to 

roadways that are used by haulage vehicles that transport coal, equipment, or personnel. El Paso 

32 FMSHRC Page 575 
Rock Quarries, at 36. The record in the present case establishes that all the vehicles described 

above enter the benches when drilling commences and that this same equipment is removed from 

the benches before detonation of the explosives. When on the benches, the vehicles travel along 

these benches as the holes are loaded. While it is true that the vehicles travel at a low rate of 

speed and access to the benches is limited, those factors do not affect the status of the benches as 

elevated roadways. 

Arch also argues that the .citation should be vacated because it was not provided with 

adequate notice of the Secretary's interpretation of the safety standard. I reject this argument. 

The Secretary's intent has been clear since 1981. The language of the berm standard applicable 

to metal and nonmetal mines is identical to that applied to coal mines. Commission judges have 

accepted the Secretary's interpretation that the standard applies to benches, except in very limited 

circumstances. The Secretary has provided the mining community with adequate notice of the 

requirements of the standard. MSHA's "Haul Road Inspection Handbook" provides that the 

cited safety standard "is appli<;able to all elevated roadways on mine property, including roads to 

transport coal, equipment, or personnel, and regardless of the size, location, or characterization of 

the roadways." (Sec'y Br. Ex. 5). Although this provision does not mention benches, it certainly 

does not support Arch's interpretation that only "haulage roads" are covered by the standard. 

Arch has never been cited for a violation of this standard on its drill benches at the Elk Mountain 

Mine. I have considered this fact when evaluating the negligence of Arch. 

Based on the discussion above, I find that the Secretary established a violation of section 

77. l 605(k). The benches were elevated roadways and the outer banks of these roadways were 

not provided with berms .. 

2. Sipificantand Substantial Nature of the Violation; Gravity. 

The Secretary argues that the violation was serious and S&S. She relies on the fact that 

the large vehicles that must operate on the benches are required to maneuver in tight spaces. She 

states that the types of vehicles operated on the bench were of special concern to Inspector 

Dickson. Visibility is restricted from the cab of the bulldozer used to build the benches. (Sec'y 

Br. Ex. 1, Declaration of Dickson ii 19). The ANFO truck is problematic because it is large and 

has less room to maneuver than the other trucks on the benches. (Dickson ii 22). Inspector 

Dickson believes that skidders are susceptible to tipping over on uneven terrain, and icy and 

muddy conditions make them difficult to control. (Dickson ii 25). The mine is in Wyoming and 

the ground can freeze and ice over in the winter. (Dickson ii 26). 

An S&S violation is described in section 104( d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

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

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981 ). 

32 FMSHRC Page 576 
The Commission has explained that: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard - that is, a 

measure of danger to safety- contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999}; Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies 

formula ''requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104( d){l ), it is the . 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMS_HRC 1573, 1574-75(July1984). 

This evaluation is made in terms of"continued normal mining operations." U.S. Sieel, 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

I find that the Secretary established that the violation was S&S. The bench was rather 

narrow. Large vehicles traveled along the bench. Given the environmental hazards present and 

the types of vehicles that travel on the bench, it was reasonably likely that the hazard contributed 

to by the violation would result in an injury of a reasonably serious nature. Although the vehicles 

do not travel at a high rate of speed, they must maneuver in tight spaces in all types of weather. 

Even a slight operator error could result in a vehicle tipping over the edge of a bench. The height 

of the benches varied, but they ranged up to 20 feet. A very serious or fatal injury would likely 

result if a vehicle went over the edge of a bench. Although no vehicle had ever slipped off the 

32 FMSHRC Page 577 
edge of a bench at the Elk Mountain Mine, the conditions presented a serious risk that such an 

accident would occur assuming continuing mining operations. The violation was serious. 

The inspector determined that Arch was highly negligent with respect to this violation. I 

fmd that the operator's negligence should be reduced. I base this finding on the fact that the 

mine has been in existence for several· years and it has been inspected by MSHA many times. 

MSHA never previously issued a citation to Arch for a violation of this standard on its benches 

and MSHA never otherwise advised the company that berms were required. Although the 

Secretary is not required to advise mine operators what conditions violate her safety and health 

standards, Arch reasonably relied on the fact that citations had never been issued at this mine or 

at other surface coal mines owned by Arch Coal, Inc., for failing to have a berm on the outer 

bank of a drill bench. See e.g. Dix River Stone, Inc.,· 29 FMSHRC 186, 203 (March 2007) (ALJ). 

In addition, the Secretary's written interpretations do not address the question whether benches 

are elevated roadways requiring berms. The failure of Arch to provide a berm was the result of 

its moderate to low negligence. 

B. Citation No. 7622039. 

In this citation, Inspector Dickson alleged that the lack of berms on the outer edges of the 

drill benches was "a safety hazard" and this hazard "should have been noticed and corrected by a 

certified person during the pre-shift examination of the pit and surrounding areas." The safety 

standard at section 77.l 713(a) provides that "[a]t least once during each working shift ... each 

active working area and each active surface installation shall be examined by a certified person 

designed by the operator to conduct such examinations for hazardous conditions and any 

hazardous conditions shall be reported to the operator and shall be corrected by the operator." 30 

C.F.R. § 77.1713(a). 

It is clear that the safety standard requires that "hazardous conditions" be reported and 

corrected. Such hazardous conditions are not limited to those conditions that violate MSHA' s 

safety and health standards. In the present case, there is no allegation that an examination was 

not conducted or that the certified person who conducted the examination was not competent to 

conduct examinations for hazardous conditions. The only allegation is that the lack of berms on 

the outer edge of the drill benches created a safety hazard and the examiner did not report this 

condition to the mine operator and the condition was therefore never corrected. 

The parties' arguments on this citation are rather superficial. The Secretary argues that 

Arch properly examinedall other areas of the mine with the result that the rest of the mine was 

hazard-free at the time of the inspection, but that the examiner should have noted the lack of 

berms in the mine's examination records and steps should have been taken to install a berm. 

Arch argues that, because the drill benches are not elevated roadways, a berm was not required to 

32 FMSHRC Page 578 
be installed at that location and no hazardous condition existed. It contends that the citation 

should be vacated. 

The real issue here is whether a citation for failure to conduct a competent pre-shift 

examination should be affirmed in a situation in which the mine operator believed that the 

condition was not hazardous based, in part, on the Secretary's lack of enforcement of the 

underlying safety standard at the mine. I affirmed the berm citation and found that the failure to 

install benns on the edge of the drill benches created a serious safety hazard. Despite previous 

MSHA inspections, however, the condition had never been cited by MSHA. I have previously 

vacated citations issued under section 56.18002, a similar metal/nonmetal standard, when the 

Secretary simply relied on other citations issued during the same inspection to support the 

citation alleging a violation of the examination standard. In these cases, the Secretary is unable 

to establish that examinations were not being performed by a certified person, but she is trying to 

prove that the examinations were inadequate based in the fact that the MSHA inspector issued 

other citations at the mine. See Dumbarton Quarry Associates, 21 FMSHRC 1132, 1134-36 

(Oct. 1999) (ALJ). Other judges have vacated examination citations in similar circumstances. 

See Lopke Quarries, Inc., 22 FMSHRC 899, 911-12 (July 2000) (ALJ). In one case, I affirmed 

an examination citation where the hazards cited by the MSHA inspector were "so obvious that I 

[could] only conclude that the workplace examinations were rather cursory and superficial." 

Clayton's Calcium Inc., 29 FMSHRC 230, 244 (March 2007) (ALJ). 

In the present case, the lack ofbenns along the outer edge of the drill benches was 

obvious. This condition had never been recorded by certified persons during pre-shift exams at 

the mine because berms had never been present on benches. If an operator genuinely believes 

that berms are not required on benches and genuinely believes that the lack of berms in that 

location does not create a safety hazard, the qualified person cannot be expected to report this 

condition where, as in this case, the operator has never been cited by MSHA for the condition. 

Information at MSHA's website indicates that the mine has been operating since April 2006. 

Arch states that MSHA has never required benns on drill benches at any of the other surface coal 

mines owned and operated by Arch Coal, fuc. (Arch Br. 13). 

Based on the above, I find that the citation should be vacated. The Secretary did not 

establish that the qualified person failed to perform a competent examination of the active 

working areas and each active surface installation at the mine, including an examination of the 

drill benches. 

III. APPROPRIATE CIVIL PENAL TY 

Section 1 lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. 30 U.S.C. § l IO(i). The mine was not issued any citations in the 24 

months preceding January 10, 2008. (S. Br. 16; Ex. 8). In 2007, 10,555 tons of coal was 

produced at the mine and Arch Coal, fuc., produced more than 10,000,000 tons of coal at all of 

its mines in 2007. Arch Coal, Inc. is a large operator. The penalty assessed in this decision will 

not affect the operator's ability to continue in business. The violation was abated in good faith. 

32 FMSHRC Page 579 
My findings on gravity and negligence are set forth above. Based on the penalty criteria, I find 

that the Secretary's proposed penalty of $1,600.00 for Citation No. 7622039 is appropriate. 

IV. ORDER 

The motion for summary decision filed by the Secretary is GRANTED, in part. The 

motion for summary decision filed by Arch ofWyoming, LLC, is DENIED, in part. Citation 

No. 7622039 is AFFIRMED in all respects except the negligence attributed to·the operator is 

reduced. Citation No. 7622040 is VACATED. ·Arch of Wyoming, Inc., is ORDERED TO 

PAY the Secretary of Labor the sum of$1,600.00 within 40 days of the date of this decision.2 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, C0-80202 (Certified Mail) 

Laura E. Beverage, Esq., and Christopher G. Peterson, Esq., Jackson Kelly PLLC, 1099 181h 

Street, Suite 2150; Denver, CO 80202-1958 (Certified Mail) 

RWM 

2 PayI1lent should be sent to Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P .0. Box 790390, St. Louis, MO 63179-0390. 

32 FMSHRC Page 580 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

202-434-9981/tele 202-434-9949/fax 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLUE DIAMOND COAL COMP ANY, 

Respondent 

May 14, 2010 

CNIL PENALTY PROCEEDING 

Docket No. KENT 2008-14 

A~c. No. 15-09636-125440 

Mine No. 77 

DECISION 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Secretary of Labor; 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

Lexington, Kentucky, on behalf of Blue Diamond Coal Company. 

Before: Judge Zielinski 

This case is before me on a Petition for Assessment of Civil Penalties filed by the 

Secretary of Labor pursuant to section· 105 of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815. The Petition alleges thatBlue Diamond Coal Company is liable for two 

violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and 

proposes the imposition of civil penalties in the total amount of$21,200.00~ A hearing was held 

in Hazard, Kentllcky, and the parties filed briefs after receipt of the transcript. At the hearing, the 

parties advised that th.ey had reached a settlement agreement as to one of the alleged violations. 

A motion seeking approval of the settlement has been filed, and will be granted. For the reasons 

set forth below, I find that Blue Diamond committed the remaining violation, but that it was not 

significant and substantial or the result of an unwarrantable failure, and impose a civil penalty in 

the amount of$4,000.00. 

Findings ofFact- Conclusions of Law 

Robert Ashworth, an MSHA inspector, began an inspection of Blue Diamond's No. 77 

mine, located in Perry County, Kentucky, on April 4, 2007. On April 5, he and fellow inspector, 

Patrick Stanfield, returned to the mine to abate citations previously issued, and to conduct an 

inspection in response to a phoned-fa safety complaint raising a number of issues, including 

illicit drug use by miners, non-compliance with ventilation requirements, and roof control 

violations. They traveled into the mine with Charles Williams, the mine superintendent They 

reached the 011 Mechanized Mining Unit during the second shift, and gathered the miners so that 

a search could be conducted for smoking materials and other contraband. None was found. 

32 FMSHRGPage 581 
During their travel through the section, they observed conditions that they determined violated 

various safety standards. Citations and orders were issued for roof control violations, and failure 

to comply with the approved ventilation plan. 

Stanfield and Ashworth left the section shortly after midnight, in the early morning hours 

of April 6. They walked inby along the belt entry, intending to terminate violations issued 

several days earlier. The 011 section had just moved to a new panel, which was adjacent to the 

previously mined panel. When Stanfield and Ashworth had traveled about five breaks, they were 

in the area of the previously mined panel, and observed that there was no permanent stopping 

separating the belt entry from the return in one of the old panel's entries. Stanfield issued Order 

No. 7521760, alleging a violation of the applicable standard. Blue Diamond timely contested the 

Order and the proposed penalty. 

Order No. 7521760 

Order No. 7521760 alleges a violation of30 C.F.R. § 75.333(b)(2), which requires that 

permanent stoppings or other permanent ventilation control devices bebuilt and maintained to 

"separate belt conveyor haulageways from return air courses." 

The violation was described in the "Condition and Practice" section of the Order as 

follows: 

The# 11 conveyor belt (alternate escapeway off the 011/MMU) is not 

being separated from the return. One crosscut inby SP:AD #3699, a permanent 

stopping has not been installed to separate the # 11 conveyor belt from the return. 

The next stoppinginby, where the old#l2 belt was located, has sealant applied on 

the n<?n-pressure side. The ilexttwo stoppings inby marked crosscut #13 and #14 

do not have sealant applied to either side or to cover the wood products used in 

the construction of the stoppings. -The permanent return stopping marked as the 

15th has the personnel door open. 

Order #4220150 is issued for failure to comply with the approved 

ventilation plan on the 011/MMU (failure to maintain the required 9,000 cfin at 

the last open crosscut). The approved roof control plan requires only two open 

crosscuts to be maintained. This mine is currently on a 103(i) spot inspection for 

methane liberation. This condition has existed for a significant amount of time. 

The 011/MMU was moved on or about 04/02/2007. 

Ex. G-1. 

Stanfield determined thatitwas highly likely that the violation would result in a fatal 

injury, that the violation was significant and substantial ("S&S"), that eight persons were 

affected, and that the operator's negligence was high. The Order was issued pursuant to section 

104(d)(2) of the Act, and alleged thatthe violation was the result of the operator's unwarrantable 

32 FMSHRC Page 582 
failure to comply with the mandatory standard. 1 A specially assessed civil penalty, in the amount 

of$19,000.00, was proposed for. this violation. 

The Violation 

As noted in the Order, the 011 section had been moved about three days prior to the 

phone-complaint inspection. The old panel, consisted of seven.entries, and was just outby the 

new panel. Both panels were mined at right angles to entries referred to as the "Daugherty 

Mains" (DM). As depicted on the mine map, when facing inby and counting from left to right, 

the first two entries of the DM were returns, entries #3 and #4 were neutrals, and entries #5, #6 

and #7 were intakes.2 The intake entries were designated as the primary escapeway, and the 

neutral entries were designated as the secondary escapeway. The belt was located in entry #4. 

Permanent stoppings were required to separate the intake entries from the neutral entries, and the 

neutral entries from the return entries. 

The entries of the new panel, like the old one, were mined off the #1 DM return entry, at 

right angles to it. At the time of the inspection, six entries on the new panel had been started~ and 

mining of the first crosscut had commenced with a right tum from entries #1 through #5. None 

of the crosscuts had been cut through. Therefore, the #1 DM entry was the last open crosscut 

(LOCC) for the new panel. When Stanfield and Ashworth arrived on the section it was not in 

production. A shuttle car had broken down on a cable at the feeder, and the second shuttle car 

had ben loaded and was awaiting access to the feeder. An electrician had traveled in with the 

inspection party in order to repair the shuttle car. 

The continuous miner was in the #1 entry. As Ashworth approached that entry to gather 

miners for the search, he observed the continuous miner operator in the LOCC and a significant 

amount of what.appeared to be dust suspended in the air in the intersection. When the miner 

operator saw Ashworth, he started back into the #1 entry, ostensibly to hang line curtain. 

Ashworth became concerned about inadequate ventilation, which was one of the allegations of 

the phoned-in complaint. He instructed the miner to get his jacket and lunch bucket.and proceed 

to the area near the feeder, where the smoke/drug search and a safety meeting were to be 

conducted. The foreman searched the assembled miners, and Williams searched the foreman. 

No smoking articles or drugs were found. 

Ashworth and Stanfield then conducted an imminent danger run. Stanfield went inby to 

the #6 entry and Ashworth started at the #4 entry and worked outby. Ashworth took an air 

1 The parties stipulated that the predicate section 104(d)(l) order, Order No. 7550843, 

issued on June 3, 2005, was in paid status, and that there had not been an intervening "clean" . 

inspection of the mine. Tr. 8-9. 

2 Air in the neutral/belt entries flowed inby. However, it could not be used to ventilate 

the face, and was routed to the retrims, in part, through a tied-open man.door, which was being 

used temporarily as a regulator. 

32 FMSHRC Page 583 
reading in the #1 DM entry. He testified that he took the measlirement between the #1 and #2 

entries of the new panel. Tr. 145-47. However, his field notes report-that the reading was taken 

between the #2 and #3 entries. Ex. G-4 at 9. He calculated that 7,611 cubic-feet-per-minute 

(din) of air was moving through the entry, less than the 9,000 din required in the LOCC under 

Blue Diamond's approved ventilation plan. Tr. 148, 165-66; Ex. G-4 at 9. As his notes reflect, 

he repeated the measurement at 9:45 p.m. "at the same location," and it againwas inadequate. 

Ex. G-4 at 9. Efforts were made to improve ventilation, and the third reading, taken at 

10:00 p.m., was 9;648 c:fm, which was satisfactory. Ex. G-4 at 15. However, mining could not 

proceed because the ventilation plan's required volume of 5,500 cfin on the return side of the 

curtain in the # 1 entry could not be obtained. A measurement taken at 11 :00 p.m. yielded an air 

flow of only 2,066 cfm at that location. Ex. G-4 at 15. Ashworth wrote an order based upon 

those violations of the ventilation plan. That order is not at issue in this proceeding. 

In the early morning hours of April 6, Stanfield and Ashworth traveled out of the mine by 

walking the belt entry, the #4 DM entry. They intended to check on progress that had been made 

to abate violations that had been written several days earlier during an electrical inspection, 

including the presence of accumulations of coal near the #10 and #11 belts. Tr. 53-55. They 

were accompanied by mine foreman Burley Adams, who had replaced Williams. It was during 

this exit trip that Stanfield observed that there was no permanent stopping separating the #3 DM 

neutral entry from the #2 DM return entry in the crosscut that was the extension of entry #3 of the 

old panel. Stanfield issued Order No. 7521760, citing the missing stopping and two adjacent 

stoppings that were inadequately sealed. Adams confirmed that the stopping was missing and 

that other stoppings were improperly "plastered," as Stanfield noted in the order. 

Blue Diamond concedes that there was no permanent stopping at the required location 

and that the standard was violated. It challenges the S&S and unwarrantable failure designations. 

Significant and Substantial 

An S&S violation is described in section 104( d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

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

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

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 

32 FMSHRC Page 584 
an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3 .. 4 (Jan. 1984) (footnote omitted); see also,. Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) 

(approving Mathies criteria). 

In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood thatthe hazard contributed to 

will result in an event in which there is an injury." US. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. US. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US; Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of "continued normal mining operations." US. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec~ 1987). 

The fact of the violation has been established. A measure of danger to safety was 

contributed to by the failure to install a permanent stopping. 3 The Secretary contends that the 

missing stopping could have resulted in a methane explosion, failure to detect a fire, and 

exposure to respirable dust. There is little question that a fire, explosion or serious dust exposure 

could reasonably have been expected to result in fatalities or serious injuries. As is often the 

case, the primary issue in the S&S analysis is whether the violation was reasonably likely to 

result in an injury causing event, i.e., an explosion, failure to detect a fire, or significant exposure 

to respirable dust. 

The Secretary advances two arguments on the gravity of the violation. She maintains that 

the missing stopping created a shortage of air at the working faces, creating a possibility of an 

3 The effect of the conditions identified in the Order was to allow air to "short circuit" 

from the neutral entries to the return entries, which is the primary thrust of the Secretary's 

arguments on gravity and negligence. By far, the most significant contributor to that effect was 

the missing stopping. While the inadequate sealing of the two adjoining stoppings contributed 

some small component to that effect, the discussion herein is framed in terms of the missing 

stopping. 

32 FMSHRC Page 585 . 
ignition or explosion and subjecting miners to respirable dust. Recognizing that there are 

questions about the accuracy of Ashworth's air flow measurements, she asserts that "it is clear 

that the air was cut off from the working section by this condition [the missing stopping]." 

Sec'y. Br. at 7. She also argues that, since belt air was allowed to short circuit to the return, the 

flow of air to the carbon monoxide ("CO") monitor at the tailpiece of the belt was reduced to an 

extent that detection of a fire in that entry would have been delayed, resulting in serious injuries. 

I find neither argument persuasive. 

While a serious shortage of air flow at the working faces of the section could have lead to 

accumulations of methane or other noxious gases and dust, the missing stopping did not have a 

significant adverse effect on face ventilation.4 Face ventilation for the 011 section was supplied 

by intake air coursing inby in the #5, #6 and #7 DM entries. Fresh air also flowed inby in the 

neutral entries, the #3 and #4 DM entries. However, it could not be used to ventilate the faces, 

and was channeled directly into the return air courses, partially through the open mandoor that 

was temporarily being used as a regulator. Although, the missing stopping allowed some of the 

neutral air to short circuit into the returns, it did not reduce the flow of intake air to the faces. 5 

Stanfield and Ashworth testified that the missing stopping would tend to lessen the pressure 

differential between the intake and the return entries, reducing air flow to the faces. Tr. 112-14, 

160-61. However, they made no attempt to quantify the supposed impact and, because of the 

overall air flow pattern, it is highly unlikely that there was any significant reduction in face 

ventilation attributable to the missing stopping. 

The lack of adverse impact is evident from face air flow measurements taken while the 

stopping was missing. When the old panel was being mined, several of its entries had to be open 

to allow for ventilation and belt haulage. When the old panel was abandoned, permanent 

4 While the #77 mine was subject to 15-day spot inspections, pursuant to section 103(i) 

of the Act, because it had liberated over 250,000 cubic feet of methane in a 24-hour period, 

methane was not prevalent in the mine around the time of the inspection. The 103(i) designation 

had been made by the MSHA district manager on the basis of the results of testing that had been 

done months earlier. Tr. 225. Williams testified that the mine had not liberated that quantity of 

methane in the past 8-10 months, and that requests to remove the spot inspection designation had 

been denied. Bottle samples taken by Ashworth on April 4 had contained 0.06% methane in the 

#11 MMU and 0.0% in the #12 MMU. Tr. 162-64; Ex. R-5. The only methane found on 

April 5, was 0.5% in the #1 entry of the new panel. Tr. 175. Methane is explosive at 

concentrations between 5% and 15%. Other than that reading, preshift reports reflect that no 

methane was found in any of the headings for examinations conducted on April 4 and 5. 

Ex. R-8. 

5 There was a relatively small leak in one of the stoppings separating the intake entries 

from the neutral entries. A block was missing from a stopping, and a plastic bag had been placed 

over the hole. Tr. 68-69, 112-14. A separate citation was written for th.at violation. The 

Secretary does not argue that that condition adversely affected face ventilation with respect to 

this violation. 

32 FMSHRC Page 586 
stoppings had to be built in the old panel entries between the #2 and #3 DM entries in order to 

separate the neutral entries of the new panel from the return entries. Blue Diamond failed to 

construct a permanent stopping separating the neutral DM entries from the return DM entries in 

what had been the #3 entry of the old panel. Because the stopping was never built, all air 

measurements on the new panel on April 4 and 5, were taken while the stopping was missing. 

The preshift reports for that period show that air flow in the LOCC was measured at 14,375 cfm 

to 15,400 c:fm, well above the required 9,000 c:fm. Ex. R-8. It was not until the suspect 

measurements taken by Ashworth late on the second shift on April 5 that the flow dropped below 

9,000 cfm. Tellingly, Ashworth, himself, had measured the air flow in the LOCC of the new 

panel on April 4, and found it to be 14,706 cfm~ Tr. 139, 162-64. The stopping was missing at 

that time. Yet the ventilation volume substantially exceeded the required 9,000 cfin, as it had for 

several other measurements. If there was restricted ventilation at the face late on April 5, it was 

not due to the missing stopping. 

Blue Diamond contends that Ashworth's air readings are unreliable because he took them 

in the wrong location, i.e., between the #2 and #3 entries on the new paneL They point out that 

placement of ventilation controls allowed return air to flow through both the #1 and #2 DM 

return entries at that point. Consequently, measurements of air flow in the #1 DM entry would 

reflect only a portion of the return air flow. It points to the fact that Ashworth's notes report that 

his measurements were taken between the #2 and #3 entries, and that a contrary indication was 

not placed on his notes until his deposition was taken in December of 2008. Tr. 170-71. 

Ashworth was adamant that he took the measurements between the #1 and #2 entries, and that 

his notes are erroneous. Tr. 166-69. There is also conflicting testimony on whether the error was 

called to his attention. Williams testified that he told Ashworth he was taking his measurement 

in the wrong location. Tr. 245-46. Ashworth testified that no one told him he was measuring in 

the wrong place. Tr. 152. 

Ashworth is_an experienced inspector and had 18 years of mining experience prior to 

joining MSHA. Tr. 132. He should have known the correct location to take the air reading, and 

it is unlikely that he would have taken it in the wrong location, although the fact that the section 

was in the initial stages of development created the potential for confusion .. Tr. 148-49. 

However, his notes, made contemporaneously with the inspection some three years ago, clearly 

state that the measurements were t*en between the #2 and #3 entries, which'would have yielded 

inaccurately low measurements. The marked difference between Ashworth's April 5 readings 

and the numerous readings in the range of 14,000-15,000 cfm on April 4 and 5, including 

Ashworth's own reading of April 4, cannot be explained by the fact that the stopping was 

missing. On this record, the only explanation for the discrepancy is that the :readings were not 

taken in the correct location. 

The Secretary also makes more than can reasonably be made of the evidence regarding air 

flow at the CO monitor at the end of the belt. She argues that the missing stopping allowed belt 

air to short circuit and not pass by the CO monitor at the belt tailpiece, thereby significantly · 

impairing the monitor's ability to detect a fire. Sec'y. Br. at 8. The missing stopping certainly 

allowed some amount of air from the neutral entries to short circuit into the return. However, 

32 FMSHRC Page 587 
there is no evidence that it resulted in an inadequate flow of air at the CO monitor. Stanfield 

took no air readings at that location, and did not know ifthe required 50 feet-per-minute of flow 

was provided, or if air was short circuiting at the CO monitor. Tr. 102. Ashworth could not 

recall observing any problems with the CO monitoring system. Tr. 175-76. If there were a 

serious question about the volume of air flow at the CO monitor, it is reasonable to expect that 

measurements or some enforcement action would have been taken, as with other perceived 

violations. The Secretary also argues that the open mandoor, being used as a regulator, was 

"similar" to a condition that existed during a belt fire at the mine around 2006. Sec'y. Br. at 8. 

However, that is not the case. In the 2006 fire, which apparently did not result in any injuries, a 

mandoor had been left open near a head drive, allowing air to bypass a CO monitor. Tr. 7 4-77. 

Here, the mandoor/regulator was on the section at the tailpiece of the belt, in or near a location 

where.a regulator was supposed to be located; to allow neutral air to flow into the return without 

going to the face. Tr. 102-03. While a mandoor is not supposed to be used as a regulator, there 

is no evidence that it did not effectively function as such. 

The Secretary's CO monitor argument on gravity is predicated on a fire occurring in the 

belt entry. She points to the fact that the mine had experienced belt fires in 2001 and 2006, and 

that citations had been issued for accumulations along the belt and at the feeder, and for a 

defective cable near the feeder, creating the potential for a fire. However, she fails to address the 

fact that the inspectors determined that those violations were unlikely to result in injuries, and 

that there is no evidence that the potential ignition source was in proximity to the accumulations. 

Tr. 58-59, 92-94. In addition. Stanfield testified that, while an uninsulated cable may arc if it is 

grounded, it is not "real common." Tr. 58-59. Assuming the fact of a belt fire, itself an unlikely 

event, there is no evidence that the ability of the CO monitoring system to detect a fire was 

impaired to any appreciable degree, or that an injury was reasonably likely to result. 

Upon consideration of all of the above, I find that the Secretary has not met her burden of 

proving that the·violation was S&S. I find that the violation was unlikely to result in lost work 

days or restricted duty injuries. 

Unwarrantable Failure - Negligence 

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

the law applicable to determining whether a violation is the result of an unwarrantable failure: 

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

Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in 

connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constitutingmore than ordinary negligence. Id. at 2001. Unwarrantable 

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

misconduct," "indifference," or a "serious lackofreasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) 

32 FMSHRC Page 588 
("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

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

Whether conduct is "aggravated" in the context of an unwarrantable 

failure analysis is determined by looking at all the facts and circumstances of each 

case to see if any aggravating factors exist, such as the length of time that the 

violation has existc;id; the extent of the violative condition, whether the operator 

has been placed on notice that greater efforts are necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator's knowledge of the 

existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHR.C 790, 813 (Aug. 

1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material 

Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and 

Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and 

circumstances of each case must be examined to determine if an actor's conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 

353. Because supervisors are held to a high standard of care, another important 

factor supporting an unwarrantable failure determination is the involvement of a 

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

1998). 

The Secretary argues that the violation was the result of Blue Diamond's unwarrantable 

failure because it was obvious, had existed for several shifts, should have been discovered by 

several mine ex~ers, and posed a high degree of danger. Blue Diamond counters that the 

condition was not obvious, it had no actual knowledge of it, it existed only for one full shift and. 

portions of two others, and it did not pose a danger to miners. 

Production commenced on the second shift on April 4, and the stopping was required to 

be in place at that time. Production also occurred on the first and second shifts on April 5. Blue 

Diamond argues that the violation existed only for one shift, and portions of two others. While 

correct, that is a significant period of time. 

The move to the new panel started on April 2, and production resumed on the second 

shift on April 4. Mine foreman Adams supervised the second shift on April 3, during which 

some of the required stoppings were built, and material for other stoppings was distributed. He 

instructed the oncoming midnight shift that the remaining stoppings needed to be built. Adams 

substituted as section foreman on the second shift on April 4. He did not personally verify that 

the stoppings had been built, and no one told him that they had been built. Tr. 214-15. He 

believed that the required permanent stoppings had been constructed because he had advised the 

previous midnight shift to do so, and the first shift had run production. He measured air flow of 

approximately 15,000 cfin in the LOCC, and he did not observe any other problems. Tr. 206. 

32 FMSHRC Page 589 
He later conducted the preshift examination for the oncoming third shift between the hours of 

8:30 and 9:30 p.m., and measured 15,310 cfin of air flow in the #1 DM entry, just outbythe #1 

entry of the new panel. Tr. 201-04~ Ex. R-8. He also found no methane in any of the new panel 

headings. Ex. R-8. 

Stanfield believed that "numerous" examiners had failed to discover the. condition. 

Tr. 81. The belt was required to be examined on every production shift, and an examination of 

the return was required weekly. Consequently, the condition was not discovered by the belt 

examiner on the second shift on April 4, or the belt examiners on the first and second shifts on 

April 5. Stanfield believed that the outby examiner, inspecting the return, should have made sure 

to check the stoppings because of the recent move. Tr. 81. He believed that he had seen a 

notation in the outby exam book that the exam had been conducted on April 5. Tr. 95. However, 

he could not recall when he had seen the book, and he had not listed the outby exam book among 

the records that he reviewed in conjunction with the inspection. Tr. 95-97. He conceded that he 

could not be sure that an outby examination had been conducted in the area of the violative 

condition while it existed. Tr. 96. 

The belt line had to be examined on every production shift, i.e., on the first and second 

shifts. Examinations were performed on the second shift on April 4 and the first shift on April 5. 

It is unclear whether the belt exam for the second shift on April 5 had been conducted prior to the 

inspection. Charles Hensley was the belt foreman on the day shift. Hensley's first post-panelmove examination of the #11 belt occurred on April 5. The brattice line, the line of permanent 

stoppings, was between the #2 and #3 DM entries. The belt was in the #4 DM entry. 

Consequently, the location where the stopping was supposed to have been constructed was about 

100 feet away from where Hensley traveled. Tr. 183-84. It was dark where the stoppings were 

supposed to be located, and there was gob piled up to within about one foot of the mine roof in 

some of the entries of the old panel, between the #4 and #3 DM entries. Tr. 184-86. Hensley 

could not see, all of the stoppings and did not notice any missing stoppings or any of the other 

defects noted in the order. He believed that it was the section foremen's responsibility to make 

sure that the required stoppings were in place before starting to mine. Tr. 190. 

George Abner, who no longer worked for Blue Diamond when he testified, was the mine 

examiner during the pertinent period, and performed weekly inspections of all outby areas. He 

typically would travel long distances in a "buggy" and, in the area of the violation, would have 

traveled in the #1 DM entry, next to the "wall," because he had to inspect seals at various points. 

He did not recall when he performed the weekly inspection in the area of the missing stopping. 

The outby book, where the inspections would have been recorded, was unavailable at the 

hearing.6 He believed that if he had failed to note a missing stopping during an examination and 

6 The book was apparently destroyed in the normal course of business. Because the 

book was not maintained by Blue Diamond, the Secretary urges that an adverse inference be 

drawn on the issue of whether the outby examination was conducted while the section was in 

production and the stopping was missing. For the reasons advanced by Blue Diamond, I decline 

32 FMSHRC Page 590 
a citation or order was issued, Williams would have reprimanded or disciplined him, and he did 

not recall any such incident. Tr. 122-23. Abner also believed that it was the section foreman's 

responsibility to install required stoppings and to assure that that was done. Tr. 126. Williams 

testified that, other than weekly examinations by the outby foreman, no one traveled the return. 

He recalled looking at the outby book with Abner shortly after the Order had been issued, and 

believed that Abner's examination had been conducted earlier in the week, before the move had 

been completed. He con.finned that he would have _disciplined or "consulted" Abner, had he 

failed to notice that a required stopping was not in place, and he did not do so. Tr. 222-23. 

The Secretary contends that the violation was obvious, which it would have been to 

anyone standing at that location. However, it was not obvious to the section foremen, who were 

not in a position to have seen it, and who did not suspect a problem because there was ample 

ventilation at the faces. The belt examiners, at least two of whom made examinations on 

production shifts while the violation existed, did not see the missing stopping. It was not 

obvious from the belt examiners' route of travel. The Secretary argues that the violation was 

obvious because Stanfield observed it while walking along the belt while his mind was on other 

things. Sec'y. Br. at 12-13. However, Stanfield testified that he maywell have been specifically 

looking for the stoppings because he was aware of the recent panel move and the inadequate air 

flow readings, and questioned whether a missing stopping could have caused the problem. 

Tr. 61. 

As evidenced by the S&S discussion, the violation did not pose a high degree of danger to 

miners. It did not significantly affect ventilation on the working section. Blue Diamond had no 

direct knowledge of the violation, and had not been put on notice that greater efforts were needed 

for compliance. The violation was promptly abated. 

Considering all of these factors, I find that the violation was not the result of Blue 

Diamond's unwarrantable failure to comply with the mandatory safety standard. While Blue 

Diamond did not have direct knowledge of the violation, it should have known ofit. Placement 

of critical ventilation controls in conjunction with a move of a section is ari important task, the 

completion of which should have been verified. Because placement of such controls is required 

prior to commencing production, the section foreman initiating production on the new panel 

should have personally made sure that the stopping was in place, as several witnesses opined. 

It is not apparent that Blue Diamond had assigned that responsibility directly, or whether the 

assigned person failed to discharge the responsibility. In either case, Blue Diamond's negligence 

was high. 

The Appropriate Civil Penalties 

Blue Diamond is a medium-sized operator, with a large controlling entity. The 

assessment data reflects that it averaged 2.0-2. l violations per inspection day during the relevant 

to draw such an inference. Resp. Br. at 7 n.4; Resp. Rply. Br. at 2-3. 

32 FMSHRC Page 591 
period, a relatively high incidence of violations. Blue Diamond does not contend that payment of 

the proposed penalty will affect its ability to continue in business. The violation was promptly 

abated. 

Order No. 7521760 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. In addition, the violation was not the 

result of Respondent's unwarrantable failure. Rather, its negligence was high. A specially 

assessed civil penalty of $19,000.00 was proposed by the Secretary. The lowering of the levels 

of negligence and gravity justify a reduction in the proposed penalty. I impose a penalty in the 

amount of$4,000.00, upon consideration of the above and the factors enumerated in section 

11 O(i) of the Act. 

The Settlement 

The parties have moved for approval of a settlement agreement as to Citation 

No. 7553882. It is proposed that the penalty be reduced from $2,200.00 to $1,540.00. I have 

considered the representations and evidence submitted and conclude that the proffered settlement 

is appropriate under the criteria set forth in section 11 O(i) of the Act. 

ORDER 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that Respondent pay a penalty of$1,540.00for Citation No. 7553882. 

Order No. 7521760 is modified to a citation issued pursuant to section 104(a) of the 

Act, and is AFFIRMED, as so modified, and Respondent is ORDERED to pay a civil penalty 

in the amount of $4,000 .00 for that violation. 

Respondent's payment of civil penalties in the total amount of $5,540.00 for the settled 

and contested violations shall be made within 30 days. 

32 FMSHRC Page 592 
Distribution (Certified Mail): 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2440 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumini Park 

Plaza, Suite 310, Lexington, KY 40517 

32 FMSHRC Page 593 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington. D.C. 20001 

May 18, 2010 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf : 

of CHRISTOPHER L. ABEYTA, 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. CENT 2010-584-D 

Complainant Denv-CD 2010-08 

v. 

SAN WAN COAL COMPANY, 

AND ITS SUCCESSORS 

Respondent 

MlNEID 29-02170 

San Juan Mine 1 

DECISION 

AND 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, 

Dallas, Texas, for Applicant; 

Brian K. Nichols, Esq., Modrall Sperling Roehl Harris & Sisk, P.A., 

Albuquerque, New Mexico, for Respondent. 

Before: Judge Hodgdon 

This q1se is before me on an Application for Temporary Reinstatement brought by the 

Secretary of Labor, on behalf of Christopher L. Abeyta, under section 105( c) of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c). The application seeks 

reinstatement of Mr. Abeyta as an employee of the Respondent, San Juan Coal Company, 

pending final disposition of the discrimination complaint he has filed with the Mine Safety and 

Health Administration (MSHA) against the company. 1 A hearing on the application was held on 

April 21, 2010, in Farmington, New Mexico. For the reasons set forth below, I grant the 

application and order Mr. Abeyta's temporary reinstatement. 

Summary of the Evidence 

On March 2, 2010, Abeyta filed a discrimination complaint with MSHA stating that he 

had been discharged from San Juan on February 23, 2010, and alleging that the discharge was 

1 It does not appear that the Secretary has completed investigation of Mr. Abeyta's 

complaint. Accordingly, there is no Complaint of Discrimination before the Commission. 

32 FMSHRC Page 594 
"retaliation for issuing complaint to MSHA on Feb. 11, 2010 .... " (Govt. Ex. 1.) At the 

hearing, he testified that he began working for San Juan as an Electrical Projects Engineer on 

September 8, 2009. (Tr. 43, 45.) 

Abeyta further testified that at a February 8, 2010, meeting with Chuck Wilson, his 

immediate supervisor, Marilyn King, a Labor Relations Advisor from Human Resources, and 

Steve Pierro, the Belt Coordinator, he informed them of a problem with "arcing" at the power 

centers and the "inappropriate" use of capacitors on the long wall. (Tr. 60-61.) At the end of the 

meeting, it was determined that Abeyta would be "[h ]eld out of service pending further 

investigation." (Tr. 66, Govt. Ex. 8.) Abeyta was subsequently informed that he was to attend 

another meeting at the company's Farmington office on February 11. (Tr. 68.) As a 

consequence, he sent an e-mail to Marilyn King on February 10, which stated: 

I am still waiting for a meeting agenda for tomorrow's meeting. 

I also informed you of my concerns for the lack of safety, 

professionalism and harassment of Chuck Wilson and Mike Fidel, 

not only to me but to the whole department. 

The resolution I have requested is to work for someone who has 

electrical engineering competence and has the company's interest 

of safety and professionalism. 

As I'm sure you are aware we are in one of the most dangerous 

occupation [sic] and safety should be our primary goal not 

production. We are subject to spontaneous combustion in our 

underground coal mine. There has been a history of arcing fa our. 

underground switch houses and power centers. I gave you a copy 

of a root cause analysis for PC-20 with my recommendation with 

feedback from SMC. This is just one major example of Chuck 

Wilson's disregard for safety by doing nothing. As recent as last 

saturday [sic] night a mechanic smelled something burning around 

East Mains SW 4, SW-4 had been arcing. If my recommendations 

had been implemented we would have detected this and not 

potentially start our mine on fire. 

Chuck is also having the apprentices doing inspections and having 

Ed Neff sign them off If audited by MSHA do you believed Ed 

can be in so many places at once? 

We as a company need to review what Chuck has been aware of 

and has chose [sic] to do nothing for the High Voltage monthly 

breaker checks for the last year. MSHA could potentially shut us 

down by us not doing this as per our requirements of 

permissibility. 

Another example of the disregard for safety by Chuck Wilson is 

the inappropriate use of the capacitor banks for the long wall. I 

have this documented with recommendations which were 

32 FMSHRC Page 595 
presented to Chuck. 

These are very serious safety issues described above and need to be 

included in our agenda when we meet. 

Please reply back with the agenda of tomorrow's meeting. If you need 

more time to present an agenda please reschedule tomorrow's meeting, it 

is imperative that the next meeting we will be addressing all the 

appropriate issues to include recommendations of the ERP requirements of 

Mine Radio and miner location and GVB CH4 flows and control. 

If you do not take action to resolve these issues I no longer want to 

work for BHP and want a severance package thru [sic] July 2010. 

(Govt. Ex. 3.) (Paragraphs not indented in original.) 

Abeyta sent another e-mail to King that night. It stated: 

It is 10:00 PM and I haven't received a meeting agenda for 

tomorrows [sic] meeting to assure all my concerns are going to be 

addressed. At this point I don't feel comfortable to meet with BHP 

without legal council [sic] present. I will let you know when I 

have chosen my legal council [sic]. I received a call this evening at 

home and was told today that Chuck Wilson stated he terminated 

me for insubordination .. I would caution Chuck for legalities for 

Defamation of Character [sic]. 

I would advise someone from legal to contact me to discuss. 

(Govt. Ex. 4.) Abeyta did not attend the February 11 meeting. {Tr. 69.) He did, however, file a 

103(g) compfaint, 30 U.S.C. § 813(g), with MSHA on that date.2 {Tr. 84, Govt. Ex. 1.) 

Abeyta did attend a meeting with Chuck Wilson, Mike Fidel and Marilyn King on 

February 12, 2010. He testified that he again brought up the four safety concerns set out in his email to Marilyn King and brought up an additional safety concern "about the accumulation of 

coal dust inside of the load centers." {Tr. 71.) He said he also informed them that he had filed a 

complaint with MSHA. (Tr. 84-:85.) 

On February 23, 2010, Abeyta was terminated by San Juan. The reasons for his 

termination, set out in his letter of termination, were given as follows: 

2 Section 103(g)(l) provides, in pertinent part, that: "Whenever ... a miner ... has 

reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such miner ... shall have a right to obtain an immediate 

inspection by giving notice to the Secretary or his authorized representative of such violation or 

danger." 

32 FMSHRC Page 596 
Effective immediately you are terminated for the following 

infractions of San Juan Coal Company's (SJCC) General Rules of 

Conduct (GRC), provided to you during your employment 

orientation. 

GRC Basic Principles #land 2 and GRC rule #10-

y ou admitted to seeing combustible material inside an 

electrical load center, left the material in the center and did not 

report the material's presence for several days or longer. This is a 

knowing violation of safety rules, which are part of your job duties. 

GRC Basic Principle # 1 and 2 and GRC rule #3 -

On numerous occasions you failed to perform your job 

duties and responsibilities by refusing to perform specific job 

assignments and violating your immediate supervisor's 

instructions, Chuck Wilson. These multiple, and in some cases ongoing, infractions date at least to November, 2009. Perhaps the 

most egregious example is your failure to perform tasks necessary 

for the Emergency Response Plan. You also refused to perfonn a 

writtenjob plan related to this job duty; 

GRC Basic Principle #2 and GRC rule #1 and 3 

On February 4, 2010, you were found working without 

wearing your hearing aids while having a conversation with certain 

persons. As such, you were not fit for duty and failed to perform 

your job duties. Alternatively; you made an excuse to, or lied to, 

Mr. Wilson for failing to follow his direction. 

GRC Basic Principle #2 and GRC Rule #6 and 17 

On February 4, 2010, you left the work site without 

attending a meeting scheduled by your supervisor and then refused 

to return to work to .attend that scheduled meeting. 

On February 11, 2010, you did not report to work on a 

scheduled work day and on that day failed to attend a meeting 

to discuss these infractions. 

GRC Basic Principle #3 

On several occasions you alleged serious misconduct by coworkers, including Chuck Wilson.. You raised these allegations to 

other SJCC employees, including myself. As described in· the 

Code of Business Conduct, also provided to you at your 

32 FMSHRC Page 597 
employment orientation, SJCC would not, and may not, discipline 

an employee for raising bona fide concerns about misconduct or 

safety issues. However, you raised many serious allegations 

without any investigation yourself Your allegations, upon 

investigation, are without any factual basis. The number of 

allegations you raised, the manner in which you did so, and the 

lack of any factual basis, leads me to conclude that you are not 

treating your co-workers with the dignity and fairness required as a 

condition of your employment. 

(Govt. Ex. 11.) 

The company presented four witnesses, Jimmy Stewart, the MSHA fuvestigator 

investigating Abeyta's complaint; Steve Pierro, Conveyance Coordinator; Charles Wilson, 

Electrical Coordinator; and Mike Fidel, Maintenance Manager. In addition, I sustained an 

objection to the testimony of Steven Ellsbury as being irrelevant. (Tr. 208-09.) The company's 

position can be summed up as follows: {l) Abeyta's safety concerns were frivolous in that they 

had no basis in fact; (2) All but one of Abeyta's safety complaints occurred in the fall of 2009, 

but he did not report them until February2010, because he was saving them as a defense against 

being disciplined;3 (3) Some of the safety complaints were very. serious, and if true, it was 

unconscionable for an electrical engineer to wait four months before reporting them; (4) Most of 

Abeyta's complaints were not observed by him, but were based on hearsay; and (5) Abeyta 

should not be returned to work because he was a danger to the mine. 

Fin dines of Fact and Conclusions of Law 

Sectio,n 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2) provides, in pertinent part, that the 

Secretary shall investigate a discrimination complaint "and if the.Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order immediate reinstatement of the miner pending final order on the 

complaint." When the operator contests temporary reinstatement, the Commission has 

established a procedure for making this determination with Commission Rule 45, 29 C.F.R. 

§ 2700.45. 

Rule 45(d), 29 C.F.R. § 2700.45(d), states that: 

The scope of a hearing on an application for temporary 

3 Steve Pierro testified that when Abeyta was given a disciplinary notice at the February 8 

meeting, Abeyta responded by saying, "I told you not to go this way, and if you are going to go 

this way, then basically you're going to regret it. And then he started talking about problems with 

one of the power centers underground." {Tr. 180.) Abeyta denied making such a statement. {Tr. 

105.) 

32 FMSHRC Page 598 
reinstatement is limited to a determination as to whether the 

miner's complaint was frivolously brought. The burden of proof 

shall be upon the Secretary to establish that the complaint was not. 

frivolously brought. In support of his application for temporary 

reinstatement, the Secretary may limit his presentation to the 

testimony of the complainant. The respondent shall have an 

opportunity to cross-examine any witnesses called by the Secretary 

and may present testimony and documentary evidence in support of 

its position that the complaint was frivolously brought. 

With regard to the hearing, in its most recent decision on temporary reinstatement, the 

Commission stated that it 

has repeatedly recognized that the "scope of a temporary 

reinstatement hearing is narrow, being limited to a determination 

by the judge as to whether a miner's discrimination complaint is 

frivolously brought." See Sec '.Y of Labor on behalf of Price v. Jim 

Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 

F.2d 738 (11th Cir.1990). 

Sec '.Y of Labor on behalf of Lige Williamson v. Cam Mining, LLC, 31 FMSHRC l 085, 1088 

(Oct.· 2009). 

In adopting section 105( c ), Congress indicated that a complaint is not frivolously brought, 

if it "appears to have merit." S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative His~ory of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress'·"appears to have merit" standard, the Commission and the courts have also 

equated "not frivolously brought" to "reasonable cause to believe" and "not insubstantial." Jim 

Walter Resources, Inc., 920 F.2d at 747 & n.9; Secretary of Labor on behalf of Price, 9 

FMSHRC at 1306. 

In order to establish aprimafacie case.ofdiscrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Secretary 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 F2d 1211 (3rd Cir.1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ). 

In this case, Abeyta testified that he made safety complaints to Chuck Wilson, and 

possibly Mike Fidel, in October and November of 2009, (Tr. 97-99), as well as making them on 

February 8, 11 and 12, 2010. He was terminated on February 23 and his termination letter 

referred to his making safety allegations, which the company concluded were unfounded. Thus, 

32 FMSHRC Page 599 
if Abeyta' s claims are found to be credible, he has established that he engaged in protected 

activity, by making safety complaints, and that he was terminated in close proximity to making 

those complaints. There is no doubt that the company had knowledge of the protected activity as 

it was referred to in the termination letter. 

San Juan's evidence indicates that it may have a valid defense to Abeyta's complaint, but, 

as set out above, the purpose of a temporary reinstatement proceeding is to determine whether the 

evidence presented by the Complainant establishes that his complaint is not frivolous, not to 

determine ''whether there is sufficient evidence of discrimination to justify permanent 

reinstatement." Jim Walter Resources, Inc., 920 F.2d at 744. Consequently, the focus of the 

hearing is clearly on the evidence presented by the Complainant and the evidence presented by 

the Respondent is relevant only to the extent it demonstrates that the claim is frivolous. In 

deciding the case, it is "not the judge's duty ... to resolve conflict[s] in testimony" or to make 

"credibility determinations in evaluating the Secretary's" case. Cam Mining, 31 FMSHRC at 

1089; Secretary of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 

1999). 

The evidence does not demonstrate that Abeyta's testimony was inherently incredible. 

Indeed, to find in San Juan's favor would require me to make credibility findings and to resolve 

conflicts in the testimony. The main thrust of its case is that Abeyta's complaints were 

unfounded and frivolous. The Commission held in Cam Mining: ·"Whether· [the Complainant] 

was correct in his belief that the continuous miners were operating simultaneously is irrelevant to 

whether he made the safety complaint to his supervisor." 31 FMSHRC at 1089 n.2. Likewise, 

whether Abeyta was correct in his belief that safety violations had occurred is irrelevant to 

whether he made safety complaints to his supervisors. 

Finally, in a temporary reinstatement proceeding, Congress intended that the benefit of 

the doubt should be with the employee, rather than the employer, because the employer stands to 

suffer a lesser loss in the event of an erroneous decision since the .employer retains the services of 

the employee until a final decision on the merits is rendered. Jim Walter Resources, Inc., 920 

F.2d at 748 n.11. Finally, if San Juan believes that the Complainant is a danger to the mine, there 

are ways to solve that problem within the context of this decision. However, making a 

determination as to whether he is a danger or not is clearly beyond the purview of this 

proceeding. 

Accordingly, finding that Abeyta' s complaint is not without merit, I conclude that his 

discrimination complaint has not been frivolously brought. 

32 FMSHRC Page 600 
Order 

Christopher L. Abeyta's Application for Temporary Reinstatement is GRANTED. San 

Juan Coal Company is ORDERED TO REINSTATE Mr. Abeyta to the position that he held on 

February 23, 2010, or to a similar position, at the same rate of pay and benefits, 

IMMEDIATELY ON RECEIPT OF THIS DECISION. In addition, San Juan is ORDERED 

TO PAY Mr. Abeyta his pay and benefits retroactive to APRIL 28, 2010.4 

~~~ Senior Administrative Law Judge. 

Distribution: 

Michael Schoen, Esq., Tina D. Juarez, Esq., Office of the Solicitor, U.S. Department of Labor, 

525 South Griffin Street, Suite 501, Dallas, TX 75202 

Brian K. Nichols, Esq., Modrall Sperling, Bank of America Centre, 500 Street N.W., Suite 1000, 

Albuquerque, NM 87102 

Christopher L. Abeyta, 6410 Red Rock Ct., Farmington, NM 87402 

/tps 

4 Under normal circumstances this decision would have been issued on April 28, 2010, in 

accordance with Commission Rule 45(e), 29 U.S.C. § 2700.45(~). However, on April 27, the 

parties advised that a settlement was being negotiated and requested thatthe decision not be 

issued. In a telephone conference call between the parties and the judge on May 18, 2010, 

counsel for the Secretary advised that a written agreement had not been entered into and that Mr. 

Abeyta no longer wished to settle the case. Over the opposition of counsel for the Respondent, 

who wanted the oral agreement enforced, the Secretary requested that a decision on temporary 

reinstatement be issued. I find that as the agreement had not been reduced to writing, there was 

no agreement, and, in any event, that enforcement of an oral agreement is beyond the scope of 

my authority. · 

32 FMSHRC Page 601 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

72119th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

May21, 2010 

PRAIRIE STATE GENERATING CO., CONTEST PROCEEDINGS 

Contestant 

v. 

Docket No. LAKE 2009-711-R 

Citation No. 6680548;09/17 /2009 

Docket No. LAKE 2009-712-R 

Citation No. 6680549;09/17 /2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Lively Grove Mine 

Mine ID 11-03193 

Appearances: 

Before: 

Respondent 

DECISION 

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for 

Contestant; 

Peter Nessen, Office of the Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for Respondent. 

Judge Miller 

Thes~ cases are before me upon Contestant's request for a hearing to challenge citation 

numbers 6680548 and 6680549 issued pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act" or "Mine Act"). The citations allege that 

Prairie State Generating Company, LLC ("PSGC") was operating its mine with an unapproved 

ventilation plan in violation of 30 C.F.R § 75.370(d) and an unapproved roof control plan in 

violation of 30 C.F.R. § 75.220(a)(l). The cited standards require, in essence, that the mine 

operator develop and follow a ventilation and roof control plan approved by the Secretary. 

On August 28, 2009, PSGC re-submitted a ventilation and roof control plan dated July 

31, 2009, to the Mine Safety and Health Administration ("MSHA"). The parties entered into 

negotiations and discussed various plan provisions. In September 2009, PSGC communicated its 

intent to implement the unapproved plan in order to bring this contest. By agreement between 

MSHA and the Contestant the mine began operation without an approved ventilation plan or 

approved roof control plan in place. Subsequently, on September 17, 2009, MSHA issued two 

citations signed by Inspector Keith Roberts. In addition, MSHA sent deficiency letters to PSGC 

that addressed the points at issue in each plan. Ex. M-3 (letter on ventilation plan); Ex. M-4 

(letter on roof control plan). The letters and the citations list the specific items that are in dispute 

in both the roof control arid ventilation plans. The parties stipulated at hearing to certain items 

listed in the citations. Specifically, the parties agreed that a number of items listed on the 

32 FMSHRC Page 602 
operator's "contested issues" list are no longer in contention. Further, any item listed as "not in 

contention" has been withdrawn from the contest in this matter and will notbe addressed in this 

decision. 

MSHA argues that the items set forth in the deficiency letters that were not eliminated 

prior to hearing should be included in the specific plans in a manner that meets MSHA's goals of 

providing safe and effective ventilation and roof control plans for the mine. PSGC argues that 

the plans it proposes are safe and mine specific. One of the primary issues is the use of extended 

cuts; that is, instead of using the normal 20-foot cut by the continuous mining machine, the mine 

seeks to use an extended cut of 40 feet. MSHA seeks to impose a performance method at the 

mine which would first use 20-foot cuts, be evaluated for effectiveness, and then move to a 30-

foot cut and eventually to a 40;.foot cut. A secondary and related issue in both plans is the use of 

wider than normal entries. 

PSGC's Lively Grove mine is newly opened and the plans at issue are the first plans to 

be put in place. Therefore, any issue regarding the suitability of a plan that is already in place is 

not raised here. Instead the Secretary must prove that the district manager did not abuse his 

discretion in determining that the plans proposed by MSHA are suitable to the Lively Grove 

mine. The Secretary argues that the district manager, with the assistance of others at MSHA, 

reviewed all factors and reached a reasonable conclusion regarding the plans. In this case, the 

assistance of others includes direction from the national office regarding the use of extended cut 

mining and wide entries. Lively Grove on the other hand argues that the district manager did 

abuse his discretion, did not consider all of the data available to him, and used an "across-theboard" policy regarding the use of extended cuts. 

The first contested citation, Citation No. 6680548, alleges a violation of 30 C.F .R. § 

75.370(d), which states that "[n]o proposed ventilation plan shall be implemented before it is 

approved by the district manager." In deciding whether to approve a proposed ventilation plan 

MSHA looks to.§ 75.370(a), which provides in pertinent part that "[t]he operator shall develop 

and follow a ventilation plan approved by the district manager [and] [t]he plan shall be designed 

to control methane and respirable dust and shall be suitable to the conditions and mining system 

at the mine." 30 C.F.R. § 75.370(a). 

The second contested citation, Citation No. 6680549, alleges a violation of30 C.F.R. § 

75 .220( c ), which states that "[ e Jach mine operator shall develop and follow a roof control plan, 

approved by the District Manager, that is suitable to the prevailing geological conditions, and the 

mining system to be used at the mine." 

As a general matter, the Commission has held that plan formulation under the Mine Act 

requires MSHA and the operator to negotiate in good faith for a reasonable period of time 

concerning disputed plan provisions. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 

1985). "Two key elements of good faith consultation are giving notice of a party's position and 

adequate discussion of disputed provisions." C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 

1996). In this proceeding the parties have stipulated that they have negotiated in good faith. 

32 FMSHRC Page 603 
For reason8 that follow below, I affirm Citation No. 6680548 and Citation No. 6680549 

and dismiss PSGC's contest proceedings. 

I~ FINDINGS OF FACT 

Lively Grove is an underground coal mine that will exclusively serve a new 1,600 

megawatt generating facility that is under construction·adjacent to the mine. Stip. ,, 2, 3. PSGC 

is an operator within the meaning of the Act, and is subject to the jurisdiction of the Mine Act. 

Stip. ,~ 6, 7. 

The dispute in this case centers on whether 40-foot cuts and extra wide entries, without 

previous testing or evaluation, are a suitable part of the ventilation and roof control plans,. given 

the conditions at the mine. 

Inspector Keith Roberts, who has more than 30 years of mining experience, testified that 

he reviewed the ventilation plan at issue and drafted the deficiency letter. (Tr. 40, 43); Ex. M-3. 

Roberts explained the review process and the use of a checklist to ascertain whether each issue 

had been covered in the proposed plan. (Tr. 44-45); Ex. M-5. Roberts reviewed the ventilation 

plan dated August 28; 2009, Ex. M-1, and, after consultation with the district manager and armed 

with information from MSHA and the mine, drafted the list of deficiencies contained in the 

letter. (Tr. 47); Ex. M-3. 

The mine plan called for the use of extended cuts, i.e., 40-foot cuts. The agency's 

position is that the mine must start with a standard 20-foot cut plan and use a performance-based 

approach to verify that the methane and respirable dust control standards could be met before a 

30-foot cut could then be tested. If30-foot cuts were then tested and found to meet the 

standards, then 40-foot cuts could be evaluated. (Tr. 49). Roberts, and subsequently district 

manager Robert Phillips, relied upon a procedural instruction letter (''PIL") that outlines the 

procedures for evaluating a request for extended cuts. (Tr. 50); Exs. M-13, M-14. Roberts is 

aware that mines in this area of Illinois can experience significant amounts of methane liberation 

and a significant number of roof falls. In order to avoid these at the outset, Phillips determined 

that cuts beyond the standard 20-foot cut should be evaluated.prior to moving to longer cuts. 

Shorter cuts allow for better methane and roof control according to Roberts. (Tr. 53-55). 

Section 75.330 sets the standard cut at 10 feet, however, over the years it has become an 

accepted practice to begin with cuts of20 feet. (Tr. 55-56). It is the opinion of Roberts that 

"talcing a deeper cut is never safer than taking a shorter cut." (Tr. 60). Many of the other issues 

addressed in the ventilation plan are based upon the 40-foot cut requested and, therefore, hinge 

on the approval of the depth of the cut. (Tr. 68"'.69). 

Mark Odum, the roof control specialist for District 8, has more than 25 years of mining 

experience. He has a bachelor's degree in mining engineering, has worked in coal mines, and· 

began work as a mine inspector with MSHA in 1991. Odum was responsible for reviewing the 

PSGC roof control plan, evaluating the plan, and drafting the deficiency letter. (Tr. 144-146); 

Exs. M-4, M-2. Odum described exhibit M-6 as the checklist used for a roof control plan 

32 FMSHRC Page 604 
review, and acknowiedged that the list was used as a guideline when he reviewed the plan at 

issue. Odum also· agreed that a shorter cut, in terms of roof control, is always the safer option. 

Robert Phillips, the MSHA district manager in Vincennes, Indiana at the time ofthis 

dispute, has been in the mining industry in various positions since 1960 and was employed by 

MSHA for 27 years. (TL 207-208). Phillips arrived in District 8 in the fall of2007, and upon 

his arrival learned that the district had the largest number of unintentional roof falls and the 

largest number of respirable dust over-exposures of all the MSHA districts. He was instructed 

that part of his mission was to reduce these figures. (Tr. 217). Phillips, as a part of his efforts to 

reduce the overall roof falls in the district, asked the administrator for coal and the chief of 

health from MSHA to make presentations to the mine operators in District 8 regarding extended 

cuts. 

In addition, Phillips changed the parameters in the roof and ventilation plans of the mines 

in District 8. {Tr. 229) The respirable dust levels had increased from 2006 to 2007 and into 

2008. The same was true for the number of roof falls. In 2009, both numbers began to decline. 

When Phillips arrived in District 8, the PSGC Lively Grove mine was just being 

developed and neither ventilation nor roof control plans had yet been approved for the mine. As 

is true of all plans, the assistants to the district manager began the process of meeting with the 

mine and reviewing conditions and information submitted by the mine. {Tr. 212). 

Phillips explained that each district has its own procedure for processing and approving 

ventilation plans. Lively Grove's proposed ventilation plan, Ex. M-1, and the proposed roof 

control plan dated July, 31, 2009, Ex. M-2, went through the same process as any other plans for 

newly opened mines in the district. (Tr. l 05). After much discussion and review, the district 

manager rejected both plans on September 17, 2009. (Tr. 212). Phillips relied on his roof 

control specialist, his ventilation specialist and guidance from the MSHA national office. In 

addition, he paid particular attention to the PIL addressing extended cut mining at new mines. 

He understood that the PIL directed him to evaluate extended cuts to "ensure compliance with 

[the Secretary's] 30 CFR standards." {Tr. 213). 

a. Use of extended cuts, i.e., 40-foot cuts as opposed to 20-foot cuts, in Citation Nos. 

6680548 and 6680549 

The issue of the depth of cuts is found throughout both the ventilation plan and the roof 

control plan. There was obviously much discussion and disagreement about the safety of the 

extended cuts and the expert witness for PSGC made it clear that the use of extended cuts is an 

issue not only ill District 8, but across the country. There is a dispute as to whether extended 

cuts are more or less safe in terms of dust control and in terms of roof support. The use of 

extended cuts makes production more efficient. 

MSHA authored a PIL dated June 3, 2008 regarding extended cuts. Ex. M-14. This 

letter was circulated to mine operators and used by MSHA as guidance in evaluating PSGC's 

request to use 40-foot cuts. The operator asserts that Phillips uses the PIL for all mines and that 

32 FMSHRC Page 605 
this "across the board" policy takes away from the mine-specific character of the plan 

negotiating process. Inspector Roberts explained that he uses the policy with all new mine 

operators and that his office would look at 20-foot cuts and, pending evaluation and compliance 

with applicable standards, would allow an operator to apply for approval to t~e 30-foot cuts, 

and, again, pending evaluation and compliance with the applicable standards, then allow 

application for 40-foot cuts. (Tr. 100). Phillips described this as a performance-based approach. 

(Tr. 100, 222). 

MSHA's arguments with regard to extended cuts focus on the possibility of a greater 

number of roof falls with longer cuts and the presence of respirable dust. The MSHA roof 

contro 1 specialist, Odum, believes that the mine can better control the roof with 20-foot cuts as 

opposed to 40-foot cuts. (Tr. 162). PSGC argues that there are no issues regarding roof control 

that need to be addressed because its data, although not provided to the district manager, 

supports its position that the roof is good. Gary Hartsog,. one of the experts who testified on 

behalf of PSGC, opined that it is ''unlikely that roof conditions will be adverse." (Tr. 445-6). 

However, no one could testify that 20 foot-cuts are an imprudent way to proceed. The mine did 

point out that an extended cut generates less respirable dust, since a majority of the dust is 

generated at start-up and fewer start-ups are required for a longer cut. 

b. Use of 20-foot wide entries as opposed to 18-foot wide entries in roof control and 

ventilation plans 

Roberts believes that both entries are suitable for moving equipment, and, like the 

extended cuts, thewide entries maybe approved based upon performance. (Tr. 113). The 

Secretary also believes that the wider the entry, the more difficult it is to control the roof. 

{Tr.152) William Jankousky, the mine's safety manager, explained his view that it is easier to 

maneuver in a wider entry, i.e., that the two additional feet make a difference in the ability of the 

equipment to maneuver a tum. {Tr. 374). 

c. Use of 64 :total diagonalfeet at intersection, as opposed to the 68 feet sought by the mine 

operator in-the roof control plan 

This issue is related to the wider entries sought by the mine and, again, the district 

manager seeks to implement a performance based evaluation before wider intersections are used. 

(Tr. 153-154). Odum testified that, based upon information he reviewed in exhibit M-16, wider 

intersections presented more roof control issues than narrower ones. He testified that 

intersections are one of the main areas that roof falls occur and, therefore, it is best to keep them 

as narrow as possible. {Tr. 154-156), Phillips relied on information from Casey Sears, an 

MSHA roof control authority, regarding large diagonals at the intersection and testified in 

support of Odum' s position. {Tr. 216). PSGC points out that the information relied upon by the 

district manager may not be thorough or reliable and there is other information regarding roof 

control that the district manager should have reviewed and relied upon. 

d. Air velocities in last open crosscut 

32 FMSHRC Page 606 
The issue involves how much air is needed to assure compliance with air velocities as the air 

reaches the continuous miner and additional working places. PSGC argues that the lower · · 

ventilation quantities it seeks are appropriate for the "fishtail" ventilation system designed at the 

mine. PSGC asserts that MSHA imposes higher quantities of air no matter what kind of 

ventilation system is utilized by the mine. Victor Daiber, the engineering manager at the mine, 

testified on behalf of PSGC that he used information from other mines to determine that 9,000 

and 12,000 cfin would be adequate for the fishtail ventilation and would work at this mine. (Tr. 

301). Roberts, however, stated that there are plans in the district that include lower velocities 

but, in reality, they use greater air quantities because they don't sufficiently address the levels of 

respirable dust. (Tr. 84;.85). Roberts points out that since the mine has three open crosscuts and 

a line curtain in the fourth, it is typical to require more air in the last open crosscut as a means to 

ensure adequate ventilation. (Tr. 87)~ If the mine uses the lower velocities they seek, they will 

not meet the respirable dust standards according to Roberts. (Tr. 125). Phillips agrees that 

unless the mine uses 25,000 cfm, it will not have the necessary air throughout the system. 

e. Red zone issues in the roof control plan 

The red zone issues relate to the persons working and moving cable in the area around 

the miner. (Tr. 74). PSGC, through Jankousky, indicates it would prefer to not address red zone 

issues in the roof control plan. Instead, the mine argues that it can handle safety policies for the 

red zone through internal programs and policies and, hence, did not include it in the roof control 

plan. (Tr. 361;, 383). The mine also raises the red zone issues in terms of the 20-foot cuts and 

explains that less moving of the machine means fewer accidents. However, according to 

Roberts, it is the method chosen to move the equipment, not the number of times you do it, 

which is of critical importance. 

f Limit to turn no more than two turns in the crosscuts 

If the mine wishes to turn the cross-cuts from both sides, then, according to MSHA, it 

needs to depict such on a sketch submitted with the plan. (Tr. 82). Odum relied upon an MSHA 

document showing the best practices for turning crosscuts with remote control continuous 

mining machines. (Tr. 163-164); M-15. Taking a limited number of turns helps limit the · 

number of overly large intersections and, consequently, is a factor in roof control. The mine 

argues that it is a ventilation issue. Daiber, the engineering manager for PSGC, believes that 

more than two turns are necessary for ventilation control. (Tr. 289). 

g. Curtain setback 

The mine suggests a setback of five feet greater than the depth of the approved cut, i.e., a 

25-foot setback. Jankousky testified that the miner operator can see the cut better at 25 feet than 

at 20 feet because the curtain does not get in the way. (Tr. 379) MSHA counters that seethrough curtains may be used to improve visibility; however, the mine rejects that solution. (Tr. 

381). 

h. Using mesh in-cycle in roof control plan 

32 FMSHRC Page 607 
The Secretary requests that the mine install mesh in certain areas of the roof to avoid roof 

falls. PSGC argues that loose materials accumulate in the mesh and, when it comes time to 

remove the mesh, it is difficult to do it safely. (Tr.278). MSHA argues that the mesh prevents 

unplanned falls of roof and rock that may injure miners working or traveling in the area. · (Tr. 

168). Odum suggests that the safety benefits are ''tremendous." Phillips agrees that placing the 

mesh during the roof bolting cycle provides additional safety from roof falls. 

There are many competing safety issues at a mine, and those issues must be weighed 

against one another in making decisions about the best plan. There are a number of other related 

issues raised by PSGC that are set forth in the Contested Issues submitted by the mine and.a 

number of the items will need to be clarified or revised as the mine moves to longer cuts. (Tr. 

93-94). The district manager has replied, ably, to each of those issues in the deficiency letter. 

That reply has been supplemented by the testimony of Roberts and Odum. (See e.g., Tr. 160-

162). I rely on those factors in determining that the deficiencies cited by MSHA are reasonable, 

based on relevant information, and contain a rational connection between the facts found and the 

choice made by the district manager. 

II. CONCLUSIONS OF LAW 

While plan contests are based on consultations between the Secretary and the operator, 

the Commission has recognized that "the Secretary is [not] in the same position as a private 

party conducting arm's length negotiations in a free market." C. W. Mining Co., 18 FMSHRC 

1740, 1746 (Oct. 1996). As one court has noted, "the Secretary must independently exercise 

[her] judgment with respect to the content of ... plans in connection with final approval of the 

plan." UMWA v. Dole, 870 F.2d 662, 669 n. 10 (D.C. Cir. 1989), quoting S. Rep. No. 95-181, at 

25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,Legislative History 

of the Federal Mine Safety and Health Act of 1977, at 613 (1978). 

The framework for resolution of a plan dispute has been established by the Commission 

in a number of cases. See Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). The 

Commission has held that "absent bad faith or arbitrary action, the Secretary retains the 

discretion to insist upon the inclusion of specific provisions as a condition of the plan's 

approval." C. W. Mining Co., 18 FMSHRC at 17 46. At issue here is whether the Secretary 

properly exercised her discretion and judgment in the plan approval process. The standard of 

review incorporates an element of reasonableness. See Monterey Coal, 5 FMSHRC 1010, 1019 

(June 1983). I must therefore, look at the issue of suitability in terms of the discretion of the 

district manager. 

a. Unsuitability of the current PSGC plan 

The Lively Grove mine is a new mine that has been in the development stage for a period 

of time, but has now reached the point of mining coal and, therefore, has submitted proposals for 

both the ventilation and roof control plans. The plans at issue in this case are the initial plans of 

the mine, with no former plan to review for unsuitability. 

32 FMSHRC Page 608 
b. Suitability of the MSHA plan 

The Secretary must show that the district manager did not abuse his discretion in 

determining that the MSHA-proposed ventilation and roof control plans are suitable to the 

conditions at the Lively Grove mine. More specifically, the Secretary must show that the actions 

of the district manager were not arbitrary and capricious in his review and decision-making 

regarding the plans and their suitability. The Commission has defined "suitable'' as '"matching 

or correspondent,' 'adapted to a use or purpose: fit,' 'appropriate from the view point of ... 

convenience, or fitness: proper, right,' 'having the necessary qualifications: meeting · 

requirements."' See Peabody Coal Company 18 FMSHRC 686, 690 (May 1996)( omission in 

original), quoting Webster's Third New International Dictionary 2286 (1986), aff'd 111 F.3d 

963 (D.C. Cir. 1997). The plans proposed by the Secretary, including the performance-based 

evaluation of the extended cuts and wide entries, must be suitable to this mine. 

In examining suitability in this matter the primary focus is on the use ofextended-cut 

mining, which encompasses wider entries and wider diagonals at intersections. Since PSGC is a 

start up mine, the district manger proposed that the mine start with shorter cuts of 20 feet, test 

them, and then move into longer cuts if the conditions prove to be appropriate. The district 

manager did this using national policy and guidelines regarding the use of extended cuts. Use of 

a guideline does not per se make it suitable or unsuitable to a plan, nor does "across the board" 

use of a policy automatically make it unsuitable for this particular mine. It is the position of 

PSGC that instead of using the national policy the district manager slrould have relied on studies 

conducted by the mine and general studies regarding roof and ventilation. Either way, the 

district manager is expected to rely on documents and information· generated by the Mine Safety 

and Health Administration as a part of his review. 

The mine argues first, that there are a number of studies to show that extended cuts are 

no more dangerous than 20-foot cuts. Daiber reviewed studies about extended cuts and reached 

the conclusion that there is no difference as to the ventilation of a 40-foot cut as opposed to a 20-

foot cut. (Tr. 315). ·He testified that, based on the studies, there is "no significant difference" in 

respirable dust control between a 20-foot cut and a 40-foot cut. However', when pressed, both 

Daiber and another PSGC expert, Hartsog agreed that the roof conditions may be affected by 

extended cuts as the conditions are an unknown until mining actually begins. Although 

engineering and technical methods give the mine a good indication of what roof conditions it 

may encounter, it is by no means fool-proof, and the mine may encounter unexpected conditions. 

(Tr. 346, 445-446). Daiber essentially agreed that mining the area is the best way to determine 

the conditions at the mine and, therefore, taking smaller cuts in the beginning and evaluating 

them is a more prudent way to proceed. (Tr. 341, 346). 

The evidence presented by the Secretary clearly demonstrates that the MSHA proposal is 

suitable as it relates to the Lively Grove Mine. First, I credit both Robert's and Odum's 

testimony far more than the generalization made by Hartsog, PSGC's expert. Hartsog is a selfemployed mining engineer, who came into the case to support PSGC's stance after the citations 

were issued by the Secretary. (Tr. 418-423). Hartsog, like Daiber, testified that there is 

minimal, if any, difference between a 20-foot cut and a 40-foot cut as far as ventilation is 

concerned. (Tr. 431, 433-435). While the parties agree that the ventilation differences are 

32 FMSHRC Page 609 
minimal, Hartsog insists that the potential for injury is higher with 20-foot cuts, than with longer, 

because the equipment is moved more frequently in a short cut than in a long. Hartsog however, 

does not address the safety of the roof in an extended cut in his initial support of the concept, but 

later admits that he can think of roof issues that would make a 40-foot cut less safe than a 20-

foot cut. (Tr.:439, 441). 

The district manager, in making his determinations about the suitability of ventilation and 

roof control plans, takes direction and guidance from MSHA experience and studies. The 

operator suggests that the directives used by the district manager somehow limit his discretion or 

take away from the suitability of the plan to this mine. I am not persuaded by the argument. The 

directives regarding the extended cuts, the wide entries, and the diagonals of the entries are 

directives used to determine what is suitable to the mine. The evidence presented by the 

Secretary regarding the use of extended cuts bears out the district manager's decision to evaluate 

their use prior to total approval. That can only be done by taking one step at a time, testing the 

effectiveness of the system, and then moving on. A conservative, careful approach, even if 

based on a PIL, on the part of the district manager does not undermine the prospect of what is 

suitable to this mine; in fact, the step-by-step approach enhances it 

c. Decision. of the district manager 

The Commission in Twentymile Coal applied the following guidance in determining if 

the actions of the district manager are arbitrary and capricious: 

The scope of review under the "arbitrary and capricious" standard 

is narrow and a court is not to substitute its judgment for that of the 

agency. Nevertheless, the agency must examine the relevant data 

and articulate a sa,tisfactory explanation for its action including a 

"rational connection between the facts found and the choice 

made." In reviewing the explanation, we must "consider whether 

the decision was based on a consideration of the relevant factors 

and whether there .has been a clear error of judgment." Normally, 

an agency rule would be arbitrary and capricious if the agency has 

relied on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the problem, 

offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency 

expertise. 

30 FMSHRC at 754-755, quoting Motor Vehicle Mfr 's Ass 'n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). 

I find that the district manager in this case met the requirements of examining relevant 

data by seeking out data, information, and opinions from a number of highly qualified people. 

He articulated a reasonable explanation for his finding that the provisions sought by MSHA are 

32 FMSHRC Page 610 
suitable. I find that the district manager made reasonable decisions and did not abuse his 

discretion in making those decisions. 

PSGC argues that the arbitrary and capricious standard applies only to ERP (emergency 

response plan) cases, yet the arbitrary and capricious standard was upheld by the Commission in 

addressing the roof control plan in the C. W Mining case cited by PSGC. In determining the 

applicability of the arbitrary and capricious standard to this case, I agree with PSGC, that some 

element of reasonableness must be apparent in the decisions made by the district manager. 

While there are disagreements about what provisions are best for the mine, the district manager 

has balanced the conflicting ideas and articulated a rational connection between the facts shown 

and the choices he made. While not the plan the mine would like to see, it remainS a reasonable 

one given all of the evidence. 

Lively Grove raises two primary issues with regard to the alleged arbitrary and capricious 

nature of Phillips decisions regarding the plans. First, PSGC argues that Phillips should not have 

used the PIL in making his decision regarding the mine. Specifically, PSGC argues that the use 

of the PIL is arbitrary because it is tantamount to using it as a binding rule, without the benefit of 

rulemaking. PSGC agrees that the PIL is not a rule, but argues it was used as such here. PSGC 

Br. 22. The fact that Phillips applied the PIL to the new mines in his district does not 

automatically render his decisions any less reasonable. The PIL guidance assists MSHA's 

district managers iri determining how to best address a request for extended cuts, and, at a new 

mine such as was the case here, allows MSHA and the operator to evaluate the plan at each step. 

Phillips did not rule out the extended cuts, he simply wanted more information, based upon 

experience at this mine, in order to make a detennillation. I find Phillips' approach extremely 

reasonable. The Commission recognizes that while mine plans must be tailOred to the specific 

conditions of a mine, they can include certain universal provisions. Carbon County Coal Co., 7 

FMSHRC 1367 (Sept. 1985). Much like a ''universal provision'', the PIL is based on MSHA 

experience and knowledge. It is a nationwide policy that a district manager has available for his 

consideration, and its purpose is to assist the district manager in reviewing plans. 

The second argument that PSGC raises is that the district manager did not review all the 

relevant available data in making a decision about allowing the use of extended cuts at this mine. 

I disagree; the Secretary demonstrated that the.district manager did consider all relevant facts, 

even if he did not review every document the mine suggests he should have reviewed. First, it is 

pure speculation on the part of the mine that the district manager did not review all relevant 

information or as the mine put it, all information that he "had readily available to him." I am 

aware that the parties rely on their knowledge and information from other sources when 

developing mine plans and that the information is often gathered from other mines and sources 

within MSHA. The parties don't start anew each time but, rather, start with time-tested practices 

and data gathered over time. I do not accept, however, that in determining whether the district 

manager abused his discretion, I must examine whether he found and reviewed every single 

piece of information that may be related, particularly when that information is not brought to his 

attention by the mine operator. 

Next, it is not an abuse of discretion to rely on information he had available and in front 

of him, rather than on the information presented for the first time at the hearing. PSGC had a 

32 FMSHRC Page 611 
number of experts testify regarding the two plans, including Hartsog concerning ventilation and 

Gadde about roof control. Neither of them was involved in the plan development or presentation 

of the plans to the district manager. The information put together by the experts was created 

after the plans were found deficient and solely for the purpose of hearing. Even so, the mine did 

not take the information back to the district manager for re-consideration. Respondent agrees 

that the evidence presented by Hartsog and Gadde was not presented to the district manager; 

however, PSGC wants to assume that the district manager had knowledge of the studies used by 

both and would have me agree that it is an abuse of his discretion not to have found it on his own 

and used it in his evaluation. 

I agree with the Secretary that the "[ d]istrict manager's decision is entitled deference 

under the arbitrary and capricious standard if he takes into account the statutory and regulatory 

elements of suitability, makes a full appraisal of the relevant and available facts, and is 

reasonable in his conclusions." Sec'y Br. 5. While MSHA agrees with PSGC that extended cuts 

and wider entries may be appropriate after study, MSHA seeks to take the safer route of testing 

before taking the larger step. I find that the district manager was not arbitrary and capricious in 

making the determination regarding the plans. · 

d. Other matters 

During the course of the hearing, PSGC attempted to introduce evidence concerning the 

ventilation and roof control plans at other mines, specifically mines that are using extended cuts. 

I refused to allow that evidence primarily because it is not relevant to the decision regarding the 

circumstances and suitability of the plan to this mine. While I understand that many plans are . 

based upon the experience at other mines, it is unlikely that two underground coal mines would 

present exactly the same factual situation and the same needs in their ventilation plan. 

Since I must examine whether the actions of the district manager are arbitrary and 

capricious, I Il,lUSt look at how he made his decision, what he had before him at the time, and 

what information he used. Any document generated after that time is not relevant and will not 

assist me in making an informed decision in this matter. Therefore, a number of those 

documents were excluded from evidence as having no relevance. 

I conclude that the Secretary has met her burden of proving that the district manager did 

not abuse his discretion. Accor4ingly, Citation No. 6680548 and Citation No. 6680549 are 

affirmed and Contest Proceedings, Docket Nos. LAKE 2009-711-R and LAKE 2009-712-R are 

hereby dismissed. 

32 FMSHRC Page 612 
Distribution: 

Peter Nessen, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 

Suite 844, Chicago, IL 60604-1502 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340 

401 Liberty Avenue, Pittsburgh, PA 15222 

32 FMSHRC Page 613 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N.W., SUITE 9500 -

WASHINGTON, D.C. 20001 

(202) 43~9950 

June 1, 2010 

SECRETARY OF LABOR, MINE SAFETY : TEMPORARY REINSTATEMENT 

AND HEALTH ADMINISTRATION, PROCEEDING 

on behalf of RICKEY JOE STRA TIIS, 

Applicant 

v. 

ICG BECKLEY, LLC, 

Respondent 

Docket No. WEVA 2010-991-D 

HOPE CD 2010-06 

Beckley Pocahontas Plant 

Mine ID 46-09216 

ORDER ON TEMPORARY REINSTATEMENT 

Appearances: 

Jessica R. Hughes, Esq., U.S. Department of Labor, Arlington, Virginia, on behalf of the 

Applicant; 

R. Henry Moore, Esq., Pittsburgh, Pennsylvania, on behalf of the Respondent. 

Before: Judge Moran 

Pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (the "Mine 

Act"), 30 U.S.C. § ~15, et seq., as amended, and 29 C.F.R. § 2700.45, this matter is before the 

Court on an Application for Temporary Reinstatement filed by the Secretary of Labor 

("Secretary'') on behalf of Rickey Joe Strattis, Applicant. The Application seeks to have Mr. 

Strattis reinstated to his former position as a dozer operator at Respondent's facility. 1 A hearing 

on the Application, made at the request of the Respondent, was held in Charleston, West Virginia 

on May 24, 2010. The Court considered the evidence at the hearing, the closing statements 

offered by the parties and the post-hearing briefs in making its determination. 

1

The parties agreed that, should the Court make a finding that Mr. Strattis' Application 

was not frivolously brought, (and as reflected in the body of this Order, it does so find that the 

Application is not frivolous) the reinstatement will be an economic reinstatement, which is to 

include Mr. Strattis' benefits and which does not diminish his status as the miners' 

representative. 

32 FMSHRC Page 614 · 
The law is well-established on the issue of temporary reinstatement under the Mine Act. 

Section 105(c)(2) of the Act provides, in pertinent part, that the Secretary shall investigate a 

discrimination complaint, "and if the Secretary finds that such complaint was not frivolously 

brought, the Commission, on an expedited basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the complaint." The Commission 

has established a procedure for making this determination. Commission Rule 45( d), 29 C.F. R § 

2700.45( d) states: ''The scope of a hearing on an application for temporary reinstatement is 

limited to a determination as to whether the complaint was frivolously brought. The burden of 

proof shall be upon the Secretary to establish that the complaint was not frivolously brought. 

In support of [her] application for temporary reinstatement, the Secretary may limit [her] 

presentation to the testimony of the complainant. The respondent shall have an opportunity to 

examine any witness called by the Secretary and may present testimony and documentary 

evidence in support of its position that the complaint was not :frivolously brought." 

Accordingly, the scope of a temporary reinstatement hearing is narrow, being limited to a 

determination by the judge as to whether a miner's complaint was frivolously brought. Sec'y of 

Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); 

affd sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). 

In adopting section 105( c ), Congress indicated that a complaint is not :frivolously brought 

ifit "appears to have merit." S. Rep. No. 181, 95 th Cong. pt Sess. 36-37 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources , 95th Cong. 2nd Sess., 

Legislative History of Federal Mine Safety and Health Act of 1977, at6240625 (1978). The "not 

frivolously brought" standard has been equated to the "reasonable cause to believe" standard 

applied in other contexts. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d at 747; Sec'y of 

Labor on behalf ofBussanich v. Centralia Mining Co., 22FMSHRC153, 157 (February 2000). 

Although ~ application for temporary reinstatement need not prove a prima-facie case of 

discrimination, the el~ments of a discrimination claim are noted here as part of the context in 

which it is assessed whether the evidence meets the non-frivolous test. Commission case law has 

set forth the essential elements of an action under Section 105( c) of the Act, by articulating that a 

complaining miner bears the burden of establishing: (1) that he or she engaged in protected 

activity, and (2) that the adverse action complained of was motivated in any part by that activity. 

Sec'y of Labor on behalf of Paula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), 

rev'd on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 F.2d 1211 (3rd. Cir. 

1981 ); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 

1981); Sec'y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 

1984); Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), rev'd on other grounds sub nom; Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 

1983). 

The Commission has frequently acknowledged the difficulty of establishing "a 

motivational nexus between protected activity and that adverse action that is the subject of the 

32 FMSHRC Page 615 
complaint." See, e.g., Sec'y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953 (September 

1999). Consequently, the Commission has held that, "(l) knowledge of protected activity; (2) 

hostility or animus towards the protected activity; and (3) coincidence in time between the. 

protected activity and the adverse action" are all indications of discriminatory intent. Id. at 957. 

These examples are not in the conjunctive. Consequently, the coincidence in time between the 

protected activity and Strattis' discharge by itself can be a basis upon which to infer an illegal 

motive on ICG Beckley's part. See: Durango Gravel, 21 FMSHRC at 957. 

The Court has determined that the evidence here establishes that Mr. Strattis' Application 

was not frivolously brought. The Secretary established that Mr. Strattis, by filing a 105 (c) 

complaint in November 2009, engaged in protected activity. The Secretary maintains that 

Mr. Strattis' subsequent discharge was motivated, at least in part, by that protective activity. 

MSHA investigator Mr. KellyAcord testified that he requested information from the Respondent 

in connection with his investigation of the complaint on April 9, 2010. The Applicant was 

discharged on April 14, 2010. In this regard the Secretary notes the close temporal connection 

between the date on which MSHA sought additional information from the Respondent and Mr. 

Strattis' discharge, which occurred only three business days after that. Mr. Strattis testified that 

ICG Beckley's General Manager told him on the date of his discharge that MSHA had made a 

document request in connection with his discrimination claim and that he characterized Strattis 

as a "nuisance."2 On this record it is clear that Mr. Strattis had no knowledge that MSHA had 

asked ICG Beckley for additional information in connection with its on-going investigation of his 

claim of discrimination. Although the Applicant filed his discrimination claim in November of 

the previous year, there had been no prior discipline meted out; he had not been suspended nor 

discharged until shortly after the MSHA request for additional information. 

The Court also concurs with the Secretary's point that decisions, such as the 

Commission: s recent issuance in CAM Mining LLC, 31 FMSHRC 1085, October 22, 2009, 2009 

WL 3802726, enunciate the proper test and that the test in a temporary reinstatement proceeding 

is not about making credibility determinations between competing versions of the events, but 

rather whether the claim is frivolous. 3 For that reason, contentions raised in the Respondent's 

post-hearing brief, such as whether the Applicant was constantly confronting others, whether he 

misused his equipment, and whether the real genesis of the discrimination claim was the 

Applicant's desire to work a day shift, are all matters for the subsequent full proceeding on the 

2

To be clear, the Court does not make a credibility determination that Mr. Strattis' ·version 

of the events on the date of his discharge represent what transpired. Rather, the Applicant's 

testimony is assessed only in terms of deciding whether the claim is frivolous. 

3

Having noted the limited inquiry which is made in a temporary reinstatement proceeding, 

that limited determination in no way foreshadows the outcome of the full hearing on the 

discrimination claim because, in that setting, a court must often make credibility determinations 

among competing versions of the events. 

32 FMSHRC Page 616 
claim of discrimination, as distinct from this temporary reinstatement matter.4 Instead, the 

Court's task is to "evaluate[] the evidence of the Secretary's prima facie case and determine[] 

whether the miner's complaint of discrimination 'appear[s] to have merit." CAM Mining at1089. 

It is undisputed that Mr. Strattis engaged in protected activity and suffered the adverse 

action of discharge and that, for purposes of temporary reinstatement, the claim is not frivolously 

brought. Accordingly, for the reasons articulated above, Respondent is ORDERED to 

economically reinstate Mr. Strattis to the position he held on April 14, 2010, at the same rate of 

pay and with the same benefits to which he was then entitled. Mr. Strattis' reinstatement will be 

deemed effective as of the date of his discharge.5 

William B. Moran 

Administrative Law Judge 

4Thus the Secretary's point 1s well-taken that the presence of supporting and detracting 

evidence of protected activity in the record is not ripe for resolution now, as that would move 

away from the limited determination of whether the claim is frivolous. 

5

In its cover letter to the post-hearing brief, Respondent's Counsel requests that, if 

reinstatement is ordered, the Secretary be directed to comply with the time requirements of 

Section 105 (c) (3), providing that it provide the miner of the results of the investigation within 

90 days of the filing of the complaint. Although not jurisdictional, reinstatement is not openended and the Secretary does have an obligation to complete its investigation promptly. Should 

there be a protracted delay in this regard, the Court trusts that the Respondent will so advise the 

Court with an appropriate motion. 

32 FMSHRC Page 617 
Distribution,;_ 

Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor, Arlington, VA 22209-2247 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 

1340, Pittsburgh, PA 15222 

wm 

32 FMSHRC Page 618 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N.W., SUITE 9500 

W ASIDNGTON, D.C. 20001 

(202) 434-9950 

June 3, 2010 

SECRETARY OF LABOR, MINE SAFETY : TEMPORARY REINSTATEMENT 

AND HEALTH ADMINISTRATION, PROCEEDING 

on behalf of RICKEY JOE STRATTIS, 

Applicant 

V. 

ICG BECKLEY, LLC, 

Respondent 

Docket No. WEY A 2010-991-D 

HOPE CD 2010-06 

Beckley Pocahontas Plant 

Mine ID 46-09216 

ORDER MODIFYING TERMS OF TEMPORARY REINSTATEMENT 

Appearances: 

JessicaR. Hughes, Esq., U.S. Department of Labor, Arlington, Virginia, on behalfofthe 

Applicant; 

R. Henry Moore, Esq., Pittsburgh, Pennsylvania, on behalf of the Respondent. 

Before: Judge Moran 

The Court's Order of June I, 2010 is modified to correct the Court's misstatement that 

Mr. Strattis' reinstatement was "deemed effective as of the date of his discharge.'' June 1, 2010 

Order at 4. Obviously the Court should have stated that the reinstatement was effective as of the 

date of the June 1st Order. To state otherwise would make the subsequent discrimination 

proceeding pointless on the question of back pay. The Court apologizes for the confusion it 

created by misstating the date of reinstatement. All other aspects of the Court's June 1st Order 

remain unchanged. Accordingly, Mr. Strattis' reinstatement is deemed effective as of 

June 1, 2010. 

William B. Moran 

Administrative Law Judge 

32 FMSHRC Page 619 
Distribution: 

Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor, Arlington, VA 22209-2247 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 

1340, Pittsburgh, PA 15222 

wm 

32 FMSHRC Page 620 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on 

behalf of RICKY LEE CAMPBELL, 

Complainant, 

v. 

MARFORK COAL COMP ANY, INC., 

Respondent 

June 11, 2010 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEV A 2010-1030-D 

HOPE-CD 2010-09 

Slip Ridge Cedar Grove Mine 

Mine ID 46-09048 

DECISION AND ORDER 

REINSTATING RICKY LEE CAMPBELL 

Appearances: Samuel Lord, Esq., U.S. Department of Labor, Arlington, Virginia, for 

Complainant and Secretary of Labor, Jonathan W. Price, Esq., The Bell Law Firm, 

PPLC of Charleston, West Virginia, for Complainant, Ricky Lee Campbell, 

Thomas S. Kleeh, Esq. and J. A. Curia, Esq., Steptoe and Johnson, PLLC, 

Charleston, West Virginia, for Respondent. 

Before: Judge L. Zane Gill 

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

Secretary on behalf of Ricky Lee Campbell, pursuant to section 105(c)(2) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Campbell filed a complaint with the 

Secretary's Mine Safety and Health Administration (MSHA) alleging that his April 23, 2010 

termination was motivated by his protected activity. The Secretary contends that Campbell's 

complaint was not frivolous, and s~eks an order requiring the employing entity, Marfork Coal 

Company ("Marfork"), to reinstate Campbell to his former position as a general laborer at the 

Slip Ridge Cedar Grove Mine ("Slip Ridge"), pending the completion of an investigation and 

final decision on the merits of his discrimination complaint. 1 An expedited hearing on the 

i The Secretary's original Application for Temporary Reinstatement of May 17, 2010, 

included an allegation in paragraph 10 that Campbell had provided information in a federal 

investigation while he was employed at Slip Ridge. The Secretary provisionally withdrew this 

allegation prior to the June 4, 2010 hearing. 

32 FMSHRC Page 621 
application was held in Beckley, West Virginia, on June 4, 2010. 2 

For the reasons that follow, I grant the application and order Campbell's temporary 

reinstatement. 

SUMMARY OF THE EVIDENCE 

The parties stipulated that Campbell is a "miner" under the Mine Act and that this court 

has jurisdiction to hear this case. (Tr.8.) 

Campbell worked at various times relevant to this case as a shuttle car operator and bolter 

for several mines operated by subsidiaries of Massey Energy Company ("Massey''), including 

Parker Peerless Mine ("Parker Peerless) and Slip Ridge, both operated by Marfork Coal 

Company ("Marfork"), and the Upper Big Branch-South Mine (''Upper Big Branch"), operated 

by Performance Coal Company. (Tr. 17-18.) 

Campbell began working for Marfork at Parker Peerless, in November of2009. (Tr. 17.) 

He worked there for approximately three months before he was transferred to Upper Big Branch, 

where he worked for approximately four months. (Tr. 18.) Campbell returned to Parker Peerless 

for three days before starting work at Slip Ridge. (Id.) 

On April 5, 2010, Campbell started to work at Slip Ridge. {Tr. 8.) According to 

Campbell's testimony, he immediately voiced safety issues concerning the shuttles he was 

operating. {Tr. 19, 38-39.) Campbell stated that each of the three shuttles he operated had 

maintenance issues, including brakes and tram pedal malfunctions. (Id.) Campbell testified that 

he had to take his hand and pull the tram pedal so he could slow two of the shuttles down. (Id.) 

Campbell testified that he repeatedly reported the problem to employees of Slip Ridge, including 

his immediate supervisor, the chief electrician, the mine foreman, the superintendent, and others 

mentioned in his testimony without names. {Tr. 20.) In addition, Campbell stated that he shut 

down a shuttle due to safety issues, but was ordered by supervisors to continue operating the 

shuttle. (Tr. 43-44.) 

On April 5, 2010, the day Campbell began working at Slip Ridge, the Upper Big BranchSouth Mine exploded, killing 29 miners. The tragic incident has received extensive media 

coverage. 

On April 7, 2010, Campbell returned to Upper Big Branch to pick up his last paycheck 

and was approached by a Pittsburgh reporter who was accompanied by a television camera. (Tr. 

2 The only witness examined at the hearing was Ricky Lee Campbell, although counsel 

for the Respondent made an offer of proof of additional witness evidence that was excluded in 

response to objections made by counsel for the Secretary. 

32 FMSHRC Page 622 
22.) The interview was printed in the Pittsburgh Post-Gazette, and the video was posted on the 

newspaper's website. (Ex. R.4.) A DVD copy and a transcript of the television interview were 

admitted into evidence. (Ex.Gland G2.) 

On April 8, 2010, Slip Ridge management gave Campbell a written warning. (Tr. 58, 92.) 

He was issued the warning after he severed a continuous miner power cable with a shuttle; (Id.) 

Campbell testified that this was the first time he ran the "left side buggy," and he did not know 

that the brakes were malfunctioning; (Id.) The continuous miner was out of operation for about 

an hour and a quarter while repairs were performed. (Tr. 59.) 

Shortly before Campbell was terminated (date uncertain), he shut down the mine 

equipment he was working with because he believed it to be unsafe. Campbell testified that the 

mine foreman, Jeremy Hall, instructed him to continue to work with the equipment nonetheless. 

Campbell believed that the foreman's tone was loud and animated. The equipment in question 

was out of service for about 30 minutes. (Tr. 84.) 

On April 14, 2010, Slip Ridge management suspended Campbell from his duties. On 

April 23, 2010, Campbell was terminated. (Tr. 8.) The Secretary alleges that Campbell's 

dismissal was motivated by the safety complaints he voiced while working at Slip Ridge and by 

his on-camera interview with a Pittsburgh media outlet, during which he criticized the safety 

conditions and practices at the Upper Big Branch Mine, where he worked prior to Slip Ridge. 

(Ex. R3 at 3; Ex. GI.) 

During the April 14, 2010 meeting in which Campbell was notified of his suspension, 

mine superintendent Tim Shea used coarse and hostile language when speaking to Campbell. 

(Tr. 71.) Campbell did not ask for, nor did anyone else volunteer a reason for the suspension. 

(Tr. 73.) 

During the termination meeting on April 23, 2010, the tone was neutral, not hostile. No 

one on the management side mentioned the media coverage. (Tr. 81.) No one told Campbell that 

his termination had anything to do with his complaints about equipment safety. (Tr. 77.) 

On May 18, 2010, the Commission received the Application for Temporary 

Reinstatement brought by the Secretary of Labor on behalf of Campbell. On May 24, 201 O 

Respondent Marfork requested a hearing on the Application for Temporary Reinstatement. On 

May 27, 2010, I conducted a telephone conference call with the parties to discuss procedural 

issues and to set a hearing schedule. During the conference call Mr. Lord made an oral motion in: 

limine on behalf of the Secretary to exclude certain evidence. On May 28, 2010, I issued an 

order denying the Secretary's oral motion for in limine. On June 3, 2010, the Secretary filed a 

motion for reconsideration of the aforementioned Motion in Limine. The motion for 

reconsideration was denied at the hearing on June 4, 2010, in Beckley, West Virginia. 

32 FMSHRC Page 623 
DISCUSSION OF RELEVANT LAW 

Section 105( c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.'~ S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

When a person covered by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

815( c )(2) notifies the Secretary that he/she believes discrimination has occurred, the Secretary is 

obligated by Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2) to investigate, "and if the 

Secretary finds that such complaint was not frivolously brought, the Commission, on an 

expedited basis [ ... ], shall order the immediate reinstatement of the miner pending final order on 

the complaint." 

The Commission has established a procedure for making the reinstatement decision. 

Commission Rule 45(d), 29 C.F.R. § 2700.45(d) states: 

The scope of a hearing on an application for temporary reinstatement 

is limited to a determination as to whether the complaint was 

frivolously brought. The burden of proof is upon the Secretary to 

establish that the complaint was not frivolously brought. fu support 

of [her] application for temporary reinstatement, the Secretary may 

limit [her] presentation to the testimony of the complainant. The 

respondent shall have an opportunity to examine any witness called 

by the Secretary and may present testimony and documentary 

evidence in support of its position that the complaint was not 

frivolously brought. 

29 C.F.R. § 2700.45(d) 

As the above makes clear, and as I noted at the hearing on June 4, 2010, the scope of a 

temporary reinstatement hearing is narrow, being limited to a determination by the judge as to 

whether a miner's complaint was frivolously brought. Sec '.Y of Labor on behalf of Price v. Jim 

Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); aff'd sub nom. Jim Walter 

Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). It is "notthe judge's duty, nor is it 

the Commission's, to resolve the conflict in testimony at this preliminary stage of the 

proceedings." Sec'y of Labor on behalf of Albu v. Chicopee Coal Co., 21FMSHRC717, 719 

(July 1999). fu reviewing a judge's temporary reinstatement order, the Commission has applied 

32 FMSHRC Page 624 
he substantial evidence standard. 3 See id. at 719; Sec'y of Labor on behalf of Peters v. Thunder 

Basin Coal Co;, 15 FMSHRC 2425, 2426 (Dec. 1993). 

The legislative history for section 105(c) reveals that Congress discussed the term 

"frivolous" with the understanding that a complaint is not frivolous if it "appears to have merit." 

S. Rep. No. 181, 95th Cong. 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources , 95th Cong. 2nd Sess., Legislative History of Federal 

Mine Safety and Health Act of 1977, at 6240625 (1978). The "not frivolously brought" standard 

has also been equated to the "reasonable cause to believe'; standard applied in other contexts. Jim 

Walter Resources, Inc., 920 F.2d at 747; Sec '.Y of Laboron behalf of Bussanich v. Centralia 

Mining Co., 22 FMSHRC 153, 157 (February 2000). 

Under section 105( c) of the Act, the Secretary bears the burden of establishing: (1) that the 

miner engaged in protected activity, and (2) that the adverse action complained of was motivated 

in any part by that activity. Sec '.Y of Labor on behalf of Paula v. Consolidation Coal Co., 2 

FMSHRC 2786(October1980), rev'd on other grounds sub nom.; Consolidation Coal Co. v. 

Marshall, 773 F.2d 1211 (3rd. Cir. 1981); Secy of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (April 1981 ); Sec '.Y of Labor on· behalfof Jenkins v. Hecla-Day Mines 

Corp., 6 FMSHRC 1842 {August 1984); Sec '.Y of Labor on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508(November1981), rev'd on other grounds sub nom.; Donovan v. Phelps 

Dodge Corp., 109 F.2d 86 (D.C. Cir. 1983). 

Thus, an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination with the attendant requirement of proving all necessary elements at a higher 

evidentiary standard, as would be required in a trial on the merits. But the applicant must provide 

evidence of sufficient quality and quantity (substantial evidence) to allow the judge to find by 

application of the ''reasonable cause to believe" standard that: (1) the applicant engaged in 

protected activity-, and (2) that there is sufficient showing of a nexus between the protected 

activity and the alleged discrimination, to support a conclusion that the complaint of 

discrimination is not frivolous. 

Regarding the nexus requirement, other judges and the Commission have adopted 

elements of the full prima facie case to create an analytical framework that comports with the 

strictures of the limited evidentiary scope of the temporary reinstatement process yet is useful in 

3 When reviewing an administrative law 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)(l). "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, 305U.S. 197, 

229 (1938)). 

32 FMSHRC Page 625 
bridging the sometimes difficult gap between alleged actions and the intentions behind them. In 

recognition of the fact that direct evidence of intent or motivation is rarely found, the Commission 

has identified several circumstantial indicia of discriminatory intent: (1) hostility or animus 

toward the protected activity, (2) knowledge of the protected activity, and (3) coincidence in time 

between the protected activity and adverse action. Secretary of Labor, Mine Safety and Health 

Administration (MSHA) on.behalf ofLige·Williamson v. CAM Mining, LLC, 31FMSHRC1085, 

1089 2009 WL 3802726, (F.M.S.H.R.C.), October22, 2009, KENT 2009-1428-D. 

APPLICATION OF LAW TO THE EVIDENCE 

The Secretary has established by the standards set out above that Campbell engaged in 

protected activity.4 Campbell testified that he immediately and repeatedly brought what he 

believed to be complaints about faulty equipment to the attention of appropriate management 

individuals. He also shut down equipment he was working with due to his concern that it was 

unsafe. There is no question that Campbell's complaints about faulty mine equipment are enough 

to invoke the miner protections in section 105( c) of the Mine Act. 5 

The Secretary has also established by the standards set out above that there is sufficient 

nexus between Campbell's protected activity and the adverse action, i.e., his suspension and 

ultimate termination. The Secretary's evidence is sufficient to establish that mine management 

knew or should have known that Campbell was complaining about faulty equipment. Campbell 

expressed concern about the safety of the equipment he was operating clearly and frequently 

enough to bring it to the attention of his superiors. There is also sufficient evidence in the record 

to establish the temporal proximity between the protected activity and the adverse action. The 

short period of time between Campbell's.transfer to the Slip Ridge facility, his safety complaints 

to management, and his ultimate termination underscore this point. The coincidence in time 

between the protected activity and Campbell's termination can be a basis on which to infer an 

illegal motive on CAB's part. Durango Gravel, 21 FMSHRC at 957. 

The evidence of animus on the part of the employing mine is less clear though still 

sufficient. The evidence of the timing and tone of management actions is sufficient for a person 

reviewing these facts to reasonably believe that management's actions were, at least in part, a 

reaction to Campbell's safety complaints.6 In· addition to the short time periods discussed above, 

4 It is not necessary to decide if Campbell's statements to the press constitute protected 

activity. His complaints to persons tasked with mine management about the safety of the 

equipment he operated satisfy that portion of section 105 ( c) of the Act. 

5 Counsel for the mine operator conceded that Campbell's complaints about perceived 

equipment safety constitute protected activity. (Tr. 23) 

6 As mentioned above, the events related to the Upper Big Branch disaster and 

Campbell's involvement with media coverage are not taken into account in this decision. 

32 FMSHRC Page 626 
the evidence of hostile, coarse, and abrupt tone on the part of management is sufficient to sustain 

a reasonable conclusion of animus. Accordingly, I conclude that this element of the nexus 

analysis is also satisfied to the level required by the law discussed above. 

In summary, all elements of the analytical :framework discussed above are satisfied to the 

level required by the relevant statutes, rules, and case law precedents. The Secretary has carried 

her burden of adducing substantial evidence to support a reasonable cause to believe that 

Campbell engaged in protected activity, and that there is a nexus between the protected activity 

and the adverse action of suspension and termination. I conclude that the complaint of 

discrimination was not frivolously brought. 

ORDER 

For these reasons, Marfork Coal is ORDERED to reinstate Campbell to the position he 

held on April 14, 2010, or to an equivalent position, at the same rate of pay and with the same 

hours and benefits to which he was then entitled. 

Campbell's reinstatement is not open-ended. It will end upon a final order on Campbell's 

complaint. 30 U.S.C. § 815 (c)(2). Therefore, it is incumbent on the Secretary to determine 

promptly whether or not she will file a complaint with the Commission under section 105(c)(2) 

of the Act based on Campbell's May 4, 2010, complaint to MSHA. Accordingly, the Secretary is 

ORDERED to advise counsel for Marfork Coal and the court of her decision by July 26, 2010, 

and, if a decision has not been made by that date, I will entertain a motion to terminate the 

reinstatement. 

.Zane Gill 

Administrative Law Judge 

Distribution: (Electronic Transmission and U.S. Mail) 

Samuel Lord, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22m1 Floor 

West, Arlington, VA 22209-2247 

Ricky Lee Campbell, 1100 Dixie Avenue, Beckley, WV 25801 

Jonathan W. Price, Esq., The Bell Law Firm, PLLC, 30 Capital St., P.O. Box 1723, Charleston, WV 

25326 . 

Thomas S. Kleeb, Esq., Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588, 

Charleston, WV 25326 · 

led 

32 FMSHRC Page 627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19111 STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-35n/FAX 303-844-5268 

TWENTYMILE COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

TWENTYMILE COAL COMP ANY, 

Respondent 

June 17, 2010 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 2008-787-R. 

Order No. 7610956; 03/12/2008 

Foidel Creek Mfue 

Mine ID: 05-03836 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2008-352 

A.C. No. 05-03836-134666 

Docket No. WEST 2008-1321 

A.C. No. 05-03836-155287-01 

Docket No. WEST 2008-1576 

A.C. No. 05-03836-161331 

Foidel Creek Mine 

Appearances: R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, 

Pennsylvania, for Twentymile Coal Company; 

Before: 

Kristi L. Henes, Esq., Office of the Solicitor, U.S. Department 

of Labor, -Denver, Colorado, and Larry R. Ramey, Conference & 

Litigation Representative, Mine Safety ana Health Administration, 

Denver, Colorado, for the Secretary of Labor. 

Judge Manning 

These cases are before me on a notice of contest filed by Twentymile Coal Company 

(''Twentymile") and petitions for assessment of civil penalty filed by the Secretary of Labor, 

acting through the Mine Safety and Health Administration ("MSHA") pursuant to sections 105 

and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the 

32 FMSHRC Page 628 
"Mine Act"). The parties introduced testimony and documentary evidence at a hearing held in 

Steamboat Springs, Colorado. 

Twentymile operates the Foidel Creek Mine, a large underground coal mine in Routt 

County, Colorado. Tue mine extracts coal in panels using a longwall system. As discussed 

below, the parties settled most of the citations at the start of the hearing, so only Order No. 

7622519 and Citation No'. 7622452 were adjudicated. · 

I. ORDER No. 7622519; WEST 2008-1576 

A. Backiround 

On July 8, 2008, Inspector Carol Miller issued Order No. 7622519 under section 

104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.380(d)(7)(iv) as follows, in 

part: 

The lifeline in the escapeway of 22 Right at crosscut 62+50 in the 

No. 1 entry, crosscut 71+25 to crosscut 75+00 in theNo. 2 entry 

was not located in such a manner for miners to use effectively to 

escape. The lifeline was covered by a pump cable in the No. 1 

entry. fu the No. 2 entry, the lifeline at crosscut 65+00 was 

covered by a communication cable. From 71 +50 to crosscut 75+67 

in two locations the lifeline was cut in half and tied to the mesh 

with 6 feet and 2.5 feet of continuous cable not intact plus the 

cable was hung from the roof with a snap link, cable hangers, and 

hooked in the roofing mesh throughout this location. 

(Ex. G-1 ). The 'inspector determined than an injury was unlikely but that any injury would result 

in lost workdays or restricted duty. She determined that the violation was not significant and 

substantial ("S&S") and that the company's negligence was high. The unwarrantable failure 

determination was based, in part, on the fact that the mine was issued a citation on July 3, 2008, 

for a similar violation. Section 75.380(d)(7)(iv) provides that "[e]ach escapeway shall be- ... 

(7) [p ]rovided with a continuous, durable directional lifeline or equivalent device that shall be -

... (iv) [l]ocated in such a manner for miners to use effectively to escape." The Secretary 

proposes a penalty of $4,000.00 for this order. 

Inspector Miller testified that as she inspected the mine she followed the route of the 

primacy escapeway for the 22 Right longwall section. While traveling the route, she encountered 

two areas where the lifeline had been severed as well as other areas where the lifeline was not 

accessible to miners who may have needed it in the event of an emergency. {Tr. 13). The lifeline 

had been lifted up to the roof and hooked to the roof mesh by an assortment of snap links and 

high voltage cable hangers. {Tr. 13-14, 33). She testified that because the roof was nine feet 

high, the lifeline could not be reached by miners in those areas where it was hanging from the 

32 FMSHRC Page 629 
roof. (Tr. 15). Inspector Miller further testified that pump cables and communication cables 

were also hung from the roof and crossed under the lifeline with the result being that a miner 

might not be able to pull down the lifeline during an emergency. (Tr. 14). Finally, she testified 

that the lifeline had been cut in two areas and the ends had been tied to the roof mesh creating a 

gap of six feet and another gap of two and.a half feet in the lifeline. (Tr. 13-14, 21-22). 

Inspector Miller testified that the violative conditions existed in several locations over 

about 1,300 feet of the iifeline. The lifeline was either not continuous or was not located in an 

area where it could be reached by miners. · She testified that lifelines are designed to allow miners 

to use their hands to find their way out of the mine in the event of an emergency. (Tr. 39). The 

lifeline and attached cones provide a visual and tactile means of conveying the route and 

direction of the escapeway. (Tr. 41). In a smoke-filled environment, miners are trained to locate 

and follow the lifeline out of the mine as quickly as possible. (Tr. 17); 

Rob Coop worked in Twentymile's safety department at the time of the inspection. Coop 

testified that the cited conditions existed because there had been a power move during the 

previous (graveyard) shift. A power move generally involves turning off and locking out power 

to the belts, disconnecting hydraulic equipment, removing the water lines from the pumps, 

disconnecting the power, moving the power train and pumps, moving the cables, and then 

reconnecting everything back together. (Tr. 48-49). He testified that snap links and cable 

hangers were used to put the lifeline up near the ceiling during the power move so that the 

equipment would not snag or cut the lifeline. (Tr. 51 ). Mr. Coop testified that, more than likely, 

the lifeline had been cut so that the hoses and cables could be dropped down during the power 

move. (Tr. 50). Coop assumed that the lifeline was not fixed after the power move because the 

crew "got busy and did not get back to it." Id. He did not believe that it was necessary for the 

crew to cut the lifeline during a power move but that the crew probably did not want to 

disconnect the power cables because they are large, heavy, and difficult to move. (Tr. 59-62). 

He stated that the cable connectors weigh between 90 and 100 pounds. (Tr. 62). Coop could not 

explain why the preshift examiner did not observe the conditions cited by Inspector Miller. (Tr. 

59). 

Tuck Timothy Walker was a scoop operator who was functioning as a step-up lead: man 

for the outby areas at the time the order was issued. (Tr. 64). Walker testified that he conducted 

a preshift examination of the subject area on July 8, while Scott Simpson, the longwall foreman, 

conducted the preshift examination of the longwall face area. (Tr. 67-69). He testified that his 

shift started at 6:00 a.m. on July 8 and that he would have reached the cited area during his 

examination between 6:45 a.m. and 7:00 a.m. (Tr. 71-72). Walker said that he was not sure if he 

had traveled through the cited area before the order was issued by Inspector Miller, but that he 

would definitely have examined it at some point during his preshift on July 8. (Tr. 74). 

Inspector Miller testified that on July 3, 2008, five days before the issuance of the subject 

order, she issued Citation No. 7622518 for a violation of the same safety standard. (Tr. 18-19; 

Ex. G-3). Miller cited a lifeline that had been rendered inaccessible because various cables 

32 FMSHRC Page 630 
crossed under the lifeline and would have prevented miners from pulling the_ lifeline down from 

the roof and using it to guide them out of the mine. She said that a crew had completed a power 

move eight days before the citation was issued and it appeared that the condition had not been 

corrected during that time. (Tr. 36). Inspector Miller testified that she discussed the violation 

and what she perceived as a developing pattern of lifeline violations at the mine with Richard 

Conkle, Twentymile' s safety manager, at the closeout conference during the July 3 inspection. 

(Tr. 20). His usual practice after receiving a citation is to make copies of the citation, place the 

copies in the supervisors' office, and then review the citation with these supervisors. (Tr. 85-86). 

The supervisors then review the citations with the crews before they go underground~ Conkle 

was fairly certain that these steps were taken after the July 3 citation was issued. (Tr. 86). 

Conkle testified that it was very unlikely that there would be so much smoke in an escapeway 

that a miner would have to use a lifeline. {Tr. 87). Coop testified that he was aware of the July 3 

citation. (Tr. 55). 

Inspector Miller testified that she based her high negligence and unwarrantable failure 

finding on a number of factors. She said that she discovered the violation when she came to the 

mine to terminate the citation she issued on July 3 for a violation of the same standard. (Tr. 16, 

25). Miller believed that the previous citation, as well as several other prior citations for similar 

conditions, put Twentymile on notice regarding the seriousness of the violation and that it needed 

to take greater efforts to comply with the lifeline standards. {Tr. 19-20, 23;.24). She testified 

that at the time she arrived on July 8, coal was being mined but no efforts were being made to 

correct the violative condition. The crew had been in the mine for a little over an hour at the 

time she discovered the violation. 

Inspector Miller also testified that the cited condition should have been detected during 

the preshift examination. (Tr. 16). The inspector did not talk to Walker, but she did talk to 

Simpson who told her that the area would have been preshifted by Walker. Inspector Miller 

recognized that while a preshift examiner should be looking for immediate hazards, such as. 

dangerous rib conditions or methane accumulations, he should also be concerned with other 

conditions, such as the condition of the lifeline because it is important and easy to observe. {Tr. 

43-44). Miller testified that the cited area was preshifted every eight hours and that, with a shift 

coming on after the power move, a foreman should have been aware of the condition. (Tr. 16). 

The inspector testified that the power move was made on the previous shift and the 

miners who moved the power center and the foreman in charge of the move should have made it 

a priority to make sure that the lifeline was available for use after completion of the move. {Tr. 

17, 18, 22). Further, ifthe mine was going to hang the lifeline from the roof, breakable ties 

should have been used that would have allowed miners to pull down the lifeline for use in the 

event of an emergency. {Tr. 33-34). Miller testified that the cited conditions were very obvious. 

(Tr. 17). She also believed that the violative condition was extensive because it was not isolated 

to a single area but existed over a distance of about 1,300 feet of the lifeline. (Tr. 17, 21 ). Miller 

acknowledged that there was a second escapeway that went inby the longwall and that this 

escapeway was completely isolated from the cited escapeway. (Tr. 29.,.30). 

32 FMSHRC Page 631 
B. Summary of the Parties' Areuments. 

The Secretary argues that the order should be affirmed as written. The Secretary contends 

that the unwarrantable failure and negligence findings are supported by the evidence. Inspector 

Miller issued an almost identical citation five days earlier and that citation put Twentymile on 

notice as to what was required. In spite of this notice, Twentymile created this condition on the 

previous shift and did not immediately correct it after the power move. The condition was 

extremely obvious, yet it was not recognized during the preshift or onshift examinations and it 

was not corrected. The condition was also rather extensive as it existed over about 1,300 feet of 

the lifeline. 

Twentymile contends that the Secretary did not establish that the violation was the result 

of its unwarrantable failure to comply with the safety standard. A move of the longwall power 

center during the prior shift necessitated severing the lifeline in two areas and hanging the lifeline 

near the roof. These steps were taken to protect the lifeline from damage during the move of the 

power center. This condition lasted for a short period of time. Although the 8-hour cycle 

preshift examination for the day shift had begun, the examiner had not reached the area cited by 

Inspector Miller. The condition was not extensive and it was limited to a small area of the 

lifeline that extended through thousands of feet of escapeway. Further, the issuance of the 

citation for a similar violation on July 3 is not dispositive of an unwarrantable failure finding. 

C. Analysis. 

The plain language of the safety standard provides that a lifeline must be (1) 

"continuous," and (2) "located in such a manner for miners to use effectively to escape." See 

Jim Walter Resources, Inc., 31FMSHRC1208 (Oct. 2009) (ALJ); Cumberland Coal Resources, 

31FMSHRC1147 (Sept. 2009 (ALJ) (Pet. for disc. rev. granted by Comm. on Oct. 15, 2009). In 

the present,case, the lifeline had.been cut in half in two places and it was covered by a pump 

cable and by a communication cable in other locations. Thus, I find that Twentymile violated 

both of the requirements set forth in the standard. The lifeline was not continuous in several 

locations and it was not located where miners could use it for escape in other locations.1 

fu.Lopke Quarries, Inc.,_23 FMSHRC 705, 711 (July2001), the Commission restated the 

law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from 

section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more 

1 Twentymile frequently hangs the lifeline from the roof with hangers so that it is not down on 

the ground and it can be easily reached by miners. In the case at hand, the lifeline was pulled up · 

to the roof, or close to the roof, during the power move. In this state, miners might not be able to 

reach it. Because it was above power and communication cables, miners would also not be able 

to easily pull it down even if they could reach it. 

32 FMSHRC Page 632 
serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 · (Dec.1987), the 

Commission determined that unwarrantable failure is aggravated 

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

Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference," or a "serious 

lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC 189, 194 (Feb. 199l)("R&P"); see also 

Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

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

Whether conduct is "aggravated" in the context of an 

unwarrantable failure analysis is determined by looking at all the 

facts and circumstances of each case to see if any aggravating 

factors exist, such as the length of time that the violation has 

existed, the extent of the violative condition, whether the operator 

has been placed on notice that greater efforts are necessary for 

compliance, the operator's efforts in abating the violative 

condition, whether the violation is obvious or poses a high degree 

of danger, and the operator's knowledge of the existence ofthe 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

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

813 (Aug. 1998),rev'd on other grounds, 195 F.3d 42 (D~C. Cir. 

1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); 

Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); 

BethEnergyMines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.1992); 

Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of 

the relevant facts and circumstances of each case must be 

examined to determine if an actor's conduct is aggravated, or 

whether mitigating circumstances exist. Consol, 22 FMSHRC at 

353. Because supervisors are held to a high standard of care, 

another important factor supporting an unwarrantable failure 

determination is the involvement of a supervisor in the violation. 

REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

I find that the Secretary established that this violation was the result ofTwentymile's 

unwarrantable failure to comply with the safety standard. The first aggravating factor to be 

addressed is the length of time that the violative condition existed. It appears that the violative 

condition first existed during the graveyard shift that began on July 7, 2008, during which a 

power move was conducted. The lifeline was severed and raised to the roof in order to prevent 

tearing the lifeline with the equipment that was being moved. It is not clear what time on July 7 

32 FMSHRC Page 633 
the power move crew created the condition but, more than likely, it was one of the first tasks they 

completed. The condition was not abated until about 8:25 a.m. on July 8, 2008. 

Twentymile asserts that the short duration of the violative condition necessitates a finding 

that the violation "cannot properly be considered an unwarrantable failure." (Twentymile Br. 2). 

Although the condition existed for less than a full shift, it was a condition that was knowingly 

created by the shift conducting the power move. This crew neglected to fix the condition upon 

the completion of the move or to make sure that the oncoming crew corrected the condition at the 

start of the following shift. Instead, Twentymile began mining coal the following shift without 

taking steps to repair the lifeline. Twentymile argues that the condition would have been 

discovered by Mr. Walker during his preshift. Assuming that to be true, it must be remembered 

that the purpose of a preshift examination is to look for hazardous conditions, not to make sure 

that work crews are doing their job. Twentymile should not rely on preshift examinations to 

make sure that lifelines are repaired after power moves. It should have been part of the crew's 

job to fix the lifeline after the power station was moved or, if the crew ran out of time, to take 

steps to ensure that it was repaired at the start of the following shift. 

The second aggravating factor that must be looked at is the extent of the violative 

condition. Inspector Miller testified that this was not an isolated violation. Rather, it existed for 

approximately 1,300 feet of the lifeline. The lifeline had been severed in two places and was 

inaccessible to miners for an extended length. Twentymile argues that the violative condition 

only existed for a small portion of the total lifeline that extended for thousands· of feet through 

the mine. This argument is troubling. A severed, inaccessible lifeline serves very little purpose 

in a smoke-filled environment, which is exactly the kind of environment that lifelines are 

designed to address. Inspector Miller found that 20 people were affected by the violative 

condition. An interruption in, or inaccessible portion of, a lifeline has the potential to render 

useless the remaining length of the lifeline that exists outby the violative condition. If a miner 

inby the violative condition begins to utilize the lifeline and comes upon an interruption or 

inaccessible portion, they may never have the chance to find and utilize the remainder of the 

lifeline that exists on the other side of the interrupted or inaccessible portion. 

The third aggravating factor that must be addressed is whether the operator has been 

placed on notice that greater efforts are necessary for compliance. On July 3, 2008, Inspector 

Miller issued a citation for violation of the same standard that is the subject of the order in 

question. Twentymile argues that the citation issued on July 3, 2008, cannot be independently 

dispositive of the unwarrantable failure issue. That is true, but it is one of the factors that must 

be considered. The Commission has recently stated that, in addressing whether a violation is the 

result of an unwarrantable failure, "[ w ]hile an administrative law judge may determine, in his 

discretion, that some factors are not relevant, or may determine that some factors are much less 

important than other factors under the circumstances, all of the factors must be taken into 

consideration and at least noted by the judge." IO Coal Co., Inc., 31FMSHRC1346, 1351 (Dec. 

2009). The July 3ro citation was issued for cables and hoses passing under the lifeline, thereby 

making the lifeline inaccessible to miners who may have needed it in the event of an emergency. 

32 FMSHRC Page 634 
The subject order was issued in an area described as "some distance" from the area that was the 

subject of the earlier citation. Be that as it may, the violative conditions are very similar. 

Inspector Miller spoke with Conkle during a closeout conference for the July 3rd citation and 

expressed her concern regarding a series of lifeline citations that had been issued. Conkle 

indicated that, generally, copies of citations are posted for all miners to see, placed in the 

supervisor's office, and reviewed and discussed with supervisors who then do the same with their 

crews. Coop indicated that he was aware of this violation. I find that Twentymile was on notice 

that greater efforts were necessary for compliance with the lifeline standard. 

The fourth aggravating factor that must be addressed is the operator's effort in abating the 

violative condition. As discussed above, Twentymile was not in the process of eliminating the 

hazard when Inspector Miller encountered the condition and·it had not been entered in the 

company's examination books. If the outby crew were in the process of repairing the lifeline 

when Inspector Miller arrived, then it could be said that the operator was attempting to .correct 

the condition. 

The fifth aggravating factor that must be addressed is whether the violation was obvious 

or posed a high degree of danger. According to Inspector Miller, the condition was very obvious. 

Coop testified that he observed the condition at the same time Miller did, but he was unable to 

offer an explanation as to why the condition was not recognized by a preshift or onshift 

examiner, or the foreman in charge of the power move on the July 7. Given the importance of 

lifelines in the event of an emergency, the fact that lifelines are designed with reflective tape to 

make them easily visible, and the fact that both Miller and Coop noticed the condition, I find that 

the violation was "obvious." As Miller noted, miners should always be conscious of the 

condition of the lifeline, which in some cases may be their only means of finding a way to safety. 

The sixtp, and final, aggravating factor that must be considered is the operator's 

knowledge of the existence of the violation. There is no dispute that the lifeline was severed and· 

raised to the roof by the crew that conducted the power shift. It is clear that Twentymile's 

employees was aware of the cited conditions because they created them. The conditions were not 

remedied because the crew got busy and did not get back to it. Thus, Twentymile was aware of 

the condition, but it decided to not fix it and instead concerned itself with resuming production. 

The above analysis of aggravating factors, combined with the lack of substantive 

mitigating factors, demonstrates that Twentymile engaged in aggravated conduct constituting 

more than ordinary negligence. In this particular case, the aggravated conduct is most accurately 

characterized as "indifference" or "a serious lack of reasonable care" on the part of Twentymile. 

The cited condition was created in order to more easily conduct the power move. Further, the 

violative condition was not timely addressed after the power move was completed. For the same 

32 FMSHRC Page 635 
reasons, Inspector Miller's finding of high negligence is appropriate.2 I find that a penalty of 

$5,000.00 is appropriate for this violation. 

II. CITATION No. 7622452; WEST 2008-1321 

A. Back2found 

On April 11, 2008, Inspector Art C. Gore issued Citation No. 7622452 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.380(d)(2) as follows: 

Each escapeway in the mine shall be clearly marked to show the 

route and direction of travel to the surface. The red reflectors in 

the alternate escapeway located in 20. Right #3 entry from crosscut 

15+00 outby were completely covered with dust and could not be 

seen. 

(Ex. G-5). The inspector determined than an injury was unlikely but that any injury would result 

in lost workdays or restricted duty. He determined that the violation was not S&S and that the 

company's negligence was moderate. Section 7,5.380(d)(2) provides that "[e]ach escapeway 

shall be- ... (2) [c]learlymarked to show the route and direction of travel to the surface." The 

Secretary proposes a penalty of $946.00 for this citation. 

While at the mine, Inspector Gore traveled through the 20 Right No. 1 entry.3 He noticed 

that there was dust on the reflectors hanging from wires attached to the center of roof The mine 

uses reflectors to mark ecapeways and different colors are .used to designate different escape 

routes. Inspector Gore testified that the red reflectors in the entry used as the alternate escape 

route were cfil,ced with a combination of rock dust and coal dust. {Tr. 95, 100). He stated that no 

reflective material could be seen on the reflectors when a light was shined down the entry 

because they were covered with dust. Gore testified that it is crucial for mine operators to keep . 

reflectors clean so that miners will know where to go in the event of an emergency that requires 

escape from the mine. He further testified that the Secretary's safety standard requires. 

escapeways to be clearly marked and that the reflectors in the present entry were too dirty to 

provide guidance to miners in the event of an emergency. This condition existed for about 1,000 

2 Twentymile also argues that the gravity of the violation was improperly evaluated under the 

assumption that an emergency had occurred and the lifeline needed to be used. Inspector Miller 

determined that an accident or injury was unlikely and that the violation was not S&S. She 

determined that, if there were an injury, it would likelyresult in lost workdays or restricted duty. 

She determined that 20 people were affected by the violation based on the number of people on 

the longwall crew. I find that the inspector's gravity determination is supported by the evidence. 

3 At the hearing, Inspector Gore admitted that the reference in the citation to the No. 3 entry was 

incorrect and that the condition he cited was actually in the No. 1 entry. (Tr. 93). 

32 FMSHRC Page 636 
feet in the alternate escapeway, which is the tailgate entry for the longwall section and is a return 

air course. (Tr. 95, 97, 102). 

Gore acknowledged that, otherwise, the escapeway was well maintained, the miners were 

well trained, and the operator has effective training policies for underground escape routes. (Tr. 

96-97). He noted that he has previously issued similar citations to Twentymile. (Tr. 99-100). 

Inspector Gore testified that the reflectors were cleaned during the weekly examination and that 

six days had passed since the last examination. (Tr. 101). He said that six days would have 

allowed enough time for dust to build up on the reflectors but it was not enough time for a person 

to become aware of it. Id. Loren Young, a former Twentyrnile employee, testified that he would 

regularly clean off the reflectors during his weekly examinations of the escapeways. (Tr. 114). 

Gore acknowledged that he believed that there was a lifeline in the alternative escapeway, 

but he did not know whether the lifeline was color coded in order to distinguish the alternate 

escapeway from the primary escapeway. (Tr. 102, 109). Gore was accompanied by an MSHA 

trainee inspector. His notes reflect that a lifeline was present in the escapeway. (Tr. 102.:..103). 

Inspector Gore stated that lifelines are to be used in combination with reflectors and not to 

replace them. (Tr. 106). 

Dick Conkle testified that there was a lifeline in the cited escapeway and that it met all of 

the requirements of the cited safety standard. (Tr. 121). He testified that the lifeline had 

reflective material on the directional cones and that these cones clearly marked the escapeway. 

(Tr. 123). 

B. Summary of the Parties' Ar&uments. 

The SeC!etary argues that Twentymile violated section 75.380(d)(2) when it failed to 

maintain a clearly marked escapeway which would show the route and direction of travel to the 

surface. Specifically,. the Secretary asserts that the dust-covered reflectors were too dirty to 

clearly mark the alternate escapeway. (Tr. 129). The Secretary argues that, in evaluating 

whether there is a violation of the cited escapeway standard, the judge must assume the existence 

of an emergency. (Tr. 128). 

The Secretary argues that the issuing inspector, as well as other MSHA inspectors, had 

cited this condition on multiple occasions prior to the issuance of the citation in question, thereby 

placing Twentymile on notice of what was required for compliance. (Tr. 129). Further, the 

Secretary contends that the presence of a lifeline, which may satisfy lifeline standards added by 

the 2006 MINER Act, does not satisfy the cited standard and Twentymile must still maintain the 

reflectors in the escapeway. (Tr. 128-130) (citing Spartan Mining Co., 30 FMSHRC 699 (Aug. 

2008)). 

Twentyrnile argues that the citation should be vacated given that the lifeline clearly 

marked the alternate escapeway. There is little to no guidance regarding what "clearly marked" 

32 FMSHRC Page 637 
means within the cited standard. {Tr. 132). Further, reflectors are not required, nor are they the 

only means of"clearly marking" an escapeway. {Tr. 132). The cited standard is general and 

utilizes vague language. {Tr. 133). On the other hand, the lifeline standard at Section 

75.380(d)(7) is specific and necessarily satisfies the more general standard that the Secretary 

alleges was violated. {Tr. 133; Twentymile Br. 2). Where two associated standards exist, the 

rules of statutory interpretation dictate that the more specific standard controls the more general. 

{Tr. 133; Twentymile Br. 3 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 

(1992)). 

Reflectors, while beneficial in marking a smoke-free escapeway, provide little assistance 

in a smoke-filled escapeway and don't provide a directional component, regardless of whether 

they are covered in dust. (Tr. 133). A lifeline with reflective materials and directional cones · 

clearly marks the escapeway in a smoke-free environment in addition to providing tactile 

directional input to a miner in a smoke-filled environment. (Tr. 133). 

C. Analysis 

Neither the Commission nor its ALJs have directly addressed the issue of what is required 

to "clearly mark" an escapeway such that it shows the "route and direction of travel to the 

surface." There is no direct guidance regarding the use of a lifeline to satisfy the cited standard's 

requirement that escapeways be "[ c ]I early marked to show .the route and direction of travel to the 

surface." The Secretary contends that the presence of a lifeline does not satisfy the cited 

standard. Moreover, she argues that the two standards, i.e., 75.380(d)(2) and 75.380(d)(7), are 

not duplicative requirements and, therefore, require different means of satisfaction. As support 

for her argument she references Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008). The 

Spartan case cited by the Secretary addresses the issue of whether two citations are duplicative of 

each other, thereby punishing the operator twice for the same violation. That is not the issue 

here. Here, the issue is whether a lifeline is capable of "clearly marking" an escapeway ''to show 

the route and direction of travel to the surface." Only one citation was issued in this instance 

and, therefore, duplication is not an issue. The lifeline was not cited nor was it referenced in the 

citation as a possible way of marking the escapeway. Nevertheless, Inspector Gore 

acknowledged that reflectors were not the only way of marking an escapeway and, further, that a 

lifeline is capable of marking an escapeway. (Tr. 103-105). For that reason, an analysis must be 

undertaken that asks whether the particular lifeline present in the alternate escapeway at the 

Foidel Creek Mine "[c]learly marked (the escapeway] to show the route and direction of travel to 

the surface." 

In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 651-652 (2008), the Commission 

outlined the means of interpretation of a regulatory term as follows: 

Where the language of a regulatory provision is clear, the 

terms of that provision must be enforced as they are written unless 

the regulator clearly intended the words to have a different 

32 FMSHRC Page 638 
meaning or unless such a meaning would lead to absurd results. 

Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) 

(citations omitted); see also Utah Power & Light Co., 11 

FMSHRC1926, 1930 (Oct. 1989) (citations omitted); 

Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, 

however, a standard is ambiguous, courts have deferred to the 

Secretary's reasonable interpretation of the regulation. See Energy 

West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); 

accord Sec '.Y of Labor v .. Western Fuels-Utah, Inc., 900 F .2d 318, 

321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling 

weight unless it is plainly erroneous or inconsistent with the 

regulation' ")(quoting Bowles v. Seminole Rock & Sand Co.,325 

U.S. 410, 414 (1945) (other citations omitted)). 

The "language of a regulation ... is the starting point for its 

interpretation." Dyer [v. United States], 832 F.2d at 1066 (citing 

Consumer Prod. Safety Comm.'n v. GTE Sylvania, Inc., 447 U.S. 

102, 108 (1980)). In the absence of a regulatory definition or 

technical usage of a word, the Commission would normally apply 

the ordinary meaning of the word. See Bluestone Coal Corp., 19 

FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 

FMSHRC 686, 690 (May1996), affd, 111F.3d963 (D.C. Cir. 

1997) (table). 

(Footnote omitted). The cited standard is somewhat ambiguous. The plain meaning of the 

language is instructive. "Clear," the adverb form of the adjective in question, is defined as 

"easily visible : PLAIN [,] ... free from obscurity or ambiguity : easily understood : 

UNMISTAKABLE," Webster's New Collegiate Dictionary 205 (1979). "Marked" is defined a8 

"having an identifying mark." Id. at 697. "Mark" is defined as "a conspicuous object serving as 

a guide for travelers." Id. Based on the plain meaning of these words, the cited standard requires 

that escapeways be equipped with easily visible or understood, conspicuous objects, that show· 

the route and direction of travel to the surface. 

Inspector Gore agreed that a lifeline is capable of marking an escapeway. (Tr. 103, 105). 

When presented with a sample of a lifeline at the hearing, Inspector Gore also agreed that it 

included reflectors and that the lifeline with cones installed would mark the escapeway. (Tr. 

103-105; Ex. G-2, Ex. TM-3). The inspector agreed that the safety standard does not required 

reflectors, it only requires that escapeways be clearly marked. (Tr. 104). 

There is no pertinent legislative history that discusses either the regulatory or statutory 

language that requires escapeways to be "properly" or "clearly" marked. However, given the 

facts of this case, and the argument raised by the operator regarding lifelines, the legislative 

history of the 2006 MINER Act and its requirement that lifelines be installed in escapeways may 

32 FMSHRC Page 639 
be helpful. A Senate Report on the MINER Act included the following language regarding 

lifelines: 

Providing underground personnel with assistance in locating and 

following escape routes, particularly in circumstances of 

diminished visibility, is an important feature in any emergency 

plan. Flame-resistant directional lifelines are likely the most 

common method for achieving this end, and are the most 

reasonably calculated to remain usable in a post-accident setting. 

S. REP. No. 109-365 (2006). 

There is little to no dispute regarding the facts in this matter. The dust-covered reflectors 

were not easily visible. Coal and rock dust were caked on the reflectors hanging from the roof 

such that, when a light was shined down the entry, no reflective material could be seen. 

Inspector Gore testified that, while it was obvious to him that the round, dust-covered objects 

hanging from the roof were reflectors designed to mark the escapeway, the reflectors were 

nevertheless difficult to see.. (Tr. 106-107). Further, both parties acknowledged that, in a 

smoke-filled entry, the dust-covered reflectors would be nearly impossible to see. In an 

emergency, a miner should not have to spend too much effort searching for his escapeway. 

Operators must take more than general precautions to ensure that miners can quickly and safely 

exit the mine in an emergency. The plain meaning of the cited standard requires that escapeways 

be equipped with easily visible or understood, conspicuous objects, that show the route and 

direction of travel to the surface. 

Inspector Gore testified that reflectors were not the only means of marking an escapeway. 

Gore acknowledged that white signs with black lettering were capable of marking escapeways. 

Further, he acknowledged that lifelines were capable of marking escapeways. He qualified that 

statement by saying that lifelines should only be used to "enhance" the reflectors, yet he could 

not point to any formal guidance or policy that indicated such. I see no reason why a lifeline 

should per se be incapable of satisfying the cited standard. To say that something is incapable of 

satisfying one standard because it satisfies another standard defies logic and finds no support 

within Commission case law. Therefore, it becomes necessary to analyze whether the lifeline in 

the alternate escapeway at the Foidel Creek Mine satisfied the cited standard. 

Gore testified that he thought there was a lifeline in the escapeway. MSHA trainee 

Paulson's notes indicate that there was a lifeline. Gore offered no testimony that the lifeline in 

the alternate escapeway failed to "clearly mark" the escapeway. The testimony of Inspector Gore 

and Conkle indicates that the lifeline had reflective material attached, as well as directional cones 

with reflective material on them. No testimony was offered to contradict this testimony or to 

establish that the lifeline was obscured or otherwise rendered ineffective by the dust. The lifeline 

was a continuous line with directional cones to lead miners from the section, through the 

32 FMSHRC Page 640 
escapeway, and out to the surface. The lifeline provided an easily understood or visible, 

conspicuous object, that showed the route and direction of travel to the surface. 

In addition, a lifeline, in many situations, may provide an even better means of "clearly 

marking" the escapeway than reflectors hung from the roof. First, once a lifeline is found, either 

by sight or feel, a miner need only locate a directional cone and follow the line to the surface. 

Once located, the lifeline and attached cones provide the direction and route to the surface, and 

require little of the miner beyond holding on to the line and continuing to move. This, in turn, 

allows the miner to direct more of his attention to avoiding trip and fall or other hazards. On the 

other hand, reflectors, or other purely sight-driven means of identifying the escapeway, hanging 

from the roof of the entry require a miner to continually scan the roof as he makes his way to the 

surface. This, in turn, takes the miner's eyes off of the floor, thereby making him more 

susceptible to potential trip-and-fall or other hazards. 

Second, in a smoke-filled environment reflective materials provide little to no assistance. 

On the other hand, lifelines may be located by touch/feel in a smoke filled environment, and 

would provide a direction and route out of the mine. 

Third, in a smoke-free environment the lifeline appears to provide just as clear a marking 

of the escapeway as clean reflectors would. Nothing in the record indicates that the lifeline 

would be any less visible in a smoke-free environment. All of these factors, combined with 

Inspector Gore's testimony that the miners at this mine are well trained and that the operator had 

effective escapeway policies, lead me to believe that the lifeline clearly marked the route and 

direction of travel to the surface, thereby satisfying the cited standard in spite of the fact that the 

roof reflectors may not have done so. 

Based on the above, I find that this citation should be vacated. 

ID. SETTLED CITATIONS 

At the hearing, the parties proposed to settle the remaining citations in these cases. In 

WEST 2008-352, the parties propose to settle Citation No. 7621461. (Tr. 137). The parties 

propose that the penalty be reduced to $5,390.00 and that the negligence remain "high." The 

penalty was originally specially assessed under 30 C.F.R § 100.5. In WEST 2008-1576, the 

parties seek to reduce the level of negligence in Citation No. 7610949 and to reduce the gravity 

in Citation Nos. 7610950 and 7610952. (Tr. 136-138). They also propose modifying Order No. 

7610956 to a section 104(a) moderate negligence citation. Id. They propose that the total 

penalty be reduced to $36,818.00 for these citations. I have considered the representations and 

documentation presented andlconclude that the proposed settlement is appropriate under the 

criteria set forth in Section l lO(i) of the Act. The motion to approve settlement is GRANTED.4 

4 At the hearing, the Secretary also agreed to vacate Citation No. 7621738 in WEST 2008-0989 

and Citation No. 7621766 in WEST 2008-1124, which were also noticed for hearing. {Tr. 5-6). 

I granted the motion and these cases were dismissed by my written order dated April 7, 201 O. 

32 FMSHRC Page 641 
IV. APPROPRIATE CIVIL PENALTIES 

Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. The record shows that Twentymile had about 502 paid violations at the 

Foidel Creek Mine during the two years preceding July 8, 2008. (Attachment to Stipulations). 

Twentymile is a large mine operator as is Twentymile's parent company, Peabody Energy. The 

violations were abated in good faith. The penalties assessed in this decision will not have an 

adverse effect on Twentymile's ability to continue in business. The gravity and negligence are 

discussed above. 

V.ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation/Order No. 

WEST 2008-0352 

7621461 

WEST 2008-1321 

7622452 

WEST 2008-1576 & WEST 2008-0787-R 

7284492 

7610949 

7610950 

7610952 

7610956 

7622519 

7622520 

30C.F.R. § 

75.400 

75.380(d)(2) 

75.403 

75.517 

75.503 

75.503 

75.512 

7 5 .380( d)(7)(iv) 

75.380(d)(l) 

TOTAL PENALTY 

Penalty 

$5,390.00 

Vacated 

1,111.00 

4,690.00 

4,690.00 

7,000.00 

18,742.00 

5,000.00 

585.00 

47,208.00 

For the reasons set forth above, Order No. 7622519 is AFFIRMED and Citation No. 

7622452 is VACATED as set forth above. The settlement of the remaining citations is 

APPROVED. Twentymile Coal Company is ORDERED TO PAY the Secretary of Labor the 

32 FMSHRC Page 642 
sum of$47,208.00 within 30 days of the date of this decision.5 Upon payment of the penalty, 

these proceedings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

R. Herny Moore, Esq., Jackson Kelly PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 (Certified Mail) 

Kristi L. Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (Certified Mail) 

Larry Ramey, Conference & Litigation Representative, Mine Safety and Health Administratio~ 

P.O. Box 25367, Denver, CO 80225-0367 

RWM 

5 Payment should be s~nt to the Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

32 FMSHRC Page 643 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 1 gU> Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

June 17, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner · 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2009-334-M 

A.C. No. 39-00024-178265 

v. 

SPENCER QUARRIES, INC., 

Respondent 

Spencer Quarries, Inc. 

Appearances: 

Before: 

DECISION 

Ronald S. Goldade, Conference and Litigation Representative, Mine 

Safety and Health Administration, Denver, Colorado, for Petitioner; 

Jeffrey A. Sar, Esq.; Baron, Sar, Goodwin, Gill & Lohr, Sioux City, Iowa; 

for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Spencer 

Quarries, Inc., ("Spencer") 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 case involves two citations 

issued at the quartzite quarry operated by Spencer in Hanson County, South Dakota. An 

evidentiary hearing was held in Sioux Falls, South Dakota, and the parties introduced testimony 

and documentary evidence. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation No. 6328706 

1. Summary of the Evidence. 

On January 27, 2009, Inspector Daniel Scherer issued Citation No. 6328706 under section 

104(a) of the Mine Act, alleging a violation of30 C.F.R. § 56.11016 as follows, in part: 

The elevated walkway located along the surge feed belt had not 

been sanded, salted, or cleared of snow or ice prior to miners 

traveling it. This elevated walkway is on a grade of approximately 

32 FMSHRC Page 644 
28% and is approximately 200 feet long. Tracks were visible 

where a miner had slid down the length of the walkway. This 

walkway is accessed daily at various times. A miner sliding down 

this walkway is exposed to injuries · .... 

The inspector determined that an injury was reasonably likely to occur and that any injury 

would likely be fatal. He determined that the violation was of a significant and substantial nature 

("S&S")and that the company's negligence was moderate. Section 56.11016 provides that 

"[ r ]egularly used walkways and travelways shall be sanded, salted, or cleared of snow and ice as 

soon as practicable." 30 C.F .R. § 56.11016. The Secretary proposes a penalty of $334.00 for 

this citation. 

Inspector Scherer testified that Spencer employs approximately 20 employees. (Tr. 12). 

When he first arrived at the quarry he met with the woman who was the scale operator. Jim 

Zens, another Spencer employee, joined them a few minutes later. The inspector was advised 

that the scale operator and Mr. Zens were the only two people working at the quarry that day 

be<?ause the remaining employees were getting their annual ·MSHA-required training that day at 

an off-site location. (Tr. 14). The inspector testified that it was his understanding that Zens was 

the assistant superintendent but that he primarily worked in the loadout area and the stockpile 

area. (Tr. 17). The quarry had operated the previous day, but it was not operating on January 27. 

Indeed, the gate on the fence that surrounds the perimeter of the pit and plant was locked on 

January 27 and Zens had to unlock it for Inspector Scherer. (Tr. 57). 

Inspector Scherer testified that there was snow on the ground when he arrived at the 

quarry on the morning of January 27. (Tr. 20). He issued Citation No. 6328706 because he was 

concerned about some snow and ice that had built up on the walkway located alongside the surge 

feed belt. He stepped up onto the walkway and quickly determined that it was slippery. (Tr. 23). 

The inspector observed two tracks on the walkway that came from the top and went to the bottom 

in "one continuous slide." Id. He determined that the walkway was about 200 feet long and was 

at a grade of about 28 percent. The photograph that the inspector took shows the two tracks on 

the walkway. (Tr. 25; Ex. G-2 p. 5). Based on these tracks, Inspector Scherer concluded that 

someone had slid down the entire length of the walkway on the ice and snow that had· 

accumulated there. Id. (Tr. 62, 67). The inspector did not observe anyone on the walkway and 

he did not talk to anyone who saw or heard that a miner slid down the walkway. (Tr. 53, 55). 

Scherer testified that Zens told him that someone had probably walked along the walkway 

at the end of the shift on January 26 to clean up or do some light maintenance. (Tr. 27). Zens 

told him that it was company policy to clean off ice and snow at the beginning of every shift. 

Inspector Scherer testified that he based his gravity and S&S determinations on the fact that the 

walkway is used everyday, there were tracks on the walkway, the slick conditions, and the angle 

of the walkway. (Tr. 29-30). In addition, Inspector Scherer testified that he talked to some 

miners the following day and that one miner told him that the walkway can be "real nasty" 

because it is so steep. (Tr. 34). The citation was abated after the walkway was cleared of ice and 

32 FMSHRC Page 645 
snow and Spencer agreed that it would clear the walkway "as frequently as necessary as 

conditions warranted throughout the course of any shift." {Tr. 31, 60). When he arrived at the 

plant on January 28, the walkway had already been salted and cleared of snow. (Tr. 59-60). 

Spencer uses salt and sand as part of the process of keeping the walkway clear. Scherer testified 

that he was told that, before the citation was issued, Spencer only cleared the walkway at the 

beginning of each day. (Tr. 32). 

Mark Sedlacek, the crusher operator, testified for Spencer. He said that he worked at the 

crusher on January 26, the day before the citation was issued. (Tr. 87). He said that he swept the 

cited walkway with a broom that day. There were about two inches ofloose snow on the. 

walkway. This walkway was in good shape on the morning of January 26, but it started snowing 

during the afternoon. (Tr. 88). He testified that he decided to clean off the walkway before he 

left work that day. · He swept the walkway but did not salt it because the crusher would not be 

operating the following day. (Tr. 88, 91 ). The idea was that the sun might melt any remaining 

snow on January 27 and that it would be salted the morning of January 28, if needed. Id. He 

estimated that he cleaned off the snow at about 3:30 p.m. on January 26. He said that no other 

person went up the walkway that day after he cleared it. Sedlacek testified that the two tracks 

that Inspector Scherer observed on the walkway on the morning of January 27 were the tracks he 

made when he was cleaning off the walkway on January 26. He did not slide down the walkway, 

he simply shuffled his feet as he walked back down the walkway. (Tr. 90). He said that he was 

not out of control when he walked down the walkway on January 26. (Tr. 91 ). He also said that 

he was holding onto the handrail with one hand and sweeping with the other. (Tr. 97). He 

testified that the walkway was in good shape at the end of the workday on January 26 and that no 

other employee traveled on the walkway that day. The temperature dropped over the night of 

January 26-27, so it is not surprising that the walkway was slippery the morning of January 27. 

{Tr. 93, 103-04). In addition, it may have continued snowing overnight. (Tr. 93). Sedlacek 

testified that Spencer employees cleaned walkways of ice and snow whenever it was needed, not 

just at the beginning of the shift. (Tr. 100). 

Dennis Ruden is the jaw operator for Spencer. He said that he observed Mr. Sedlacek 

sweeping the walkway. (Tr. 106, 109). Mr. Sedlacek was the last person to walk on the 

walkway until the MSHA inspector observed the walkway the next day. Moreover, he testified 

that on January 27, .the day of ~Spector Scherer's inspection, most of Spencer's employees were 

in Mitchell, South Dakota, for eight-hour MSHA-required annual refresher training. (Tr. 107). 

When Ruden returned to work on January 28, he salted the walkway at 7:00 a.m. that morning as 

one of his first tasks. (Tr. 108-109). He was not told to salt the walkway; he just did it prior to 

the start of production as part of his ordinary job duties. 

Ward Tuttle, Spencer's production foreman, testified about the annual refresher training. 

He testified that there was no production at the mine on January 27. (Tr. 135). The quarry and 

plant were behind a locked fence that day. {Tr. 138). Someone unlocked the gate on the 

morning of January 27 so that Inspector Scherer could conduct his inspection. He said that all 

but two employees were at the offsite annual training. (Ex. R-1 ). The only employees working 

32 FMSHRC Page 646 
that day were an employee in the scale house and Jim Zens, who normally works in the quality 

control laboratory, but who also uses a loader to load customer trucks with product, when 

necessary. (Tr. 128, 146-147). Zens does not work in the production area ofthe mine and would 

have little knowledge of Spencer's practices or policies in the production areas. {Tr. 129). 

Tuttle testified that the quarry was only open for the purpose of allowing customers to obtain 

material from existing stockpiles. {Tr. 146). When the quarry was operating, Zens would not 

normally enter the area of the pit and plant. {Tr. 155). He would go into the plant area once a 

month to check the fire extinguishers. Id. Neither Zens nor the employees in the scale house 

would have any reason to walk up the cited walkway. {Tr. 156). 

Tuttle testified that it was company policy to keep the walkway at the surge feed belt 

clean. (Tr. 133). The area would be swept as needed and salted as needed. (Tn 134). He 

testified that Spencer did not change its policy with respect to cleaning and salting the walkway 

following the issuance of the subject citation. Id. Tuttle testified that it is possible someone 

could slip or fall when walking down the cited walkway. (Tr. 150). He also admitted that the 

photographs that Inspector Scherer took of the walkway show snow and ice. {Tr. 161). 

Richard W aldera, Spencer's general manager, testified that it has always been the 

company's policy to clean snow-covered walkways whenever it is necessary. (Tr. 167-168). The 

company did not change its policy after it received this citatiOn. (Tr. 168, 175). 

2. Analysis. 

I find that the Secretary did not establish a violation. The quarry was closed on January 

27 and the evidence clearly and unequivocally shows that nobody would have walked up the 

cited walkway on that date. Inspector Scherer inspected the walkway the morning of January 27. 

I cannot assume that the conditions he saw were the same as Sedlacek experienced when he 

cleared the walkway at 3:30 p.m. on January 26. For example, additional snow could have fallen 

and the walkway could have frosted over during the night. When Ruden arrived on the morning 

of January 28, he immediately salted the walkway without being told to do so. There is no 

evidence to show that he salted the walkway in order to abate the citation. 

The evidence establishes th_at Spencer complied with the requirements of the safety 

standard. Although the subject walkway was not used all that frequently, I find that it was 

"regularly used" as that term is used in the safety standard. Sedlacek cleared the snow on the 

afternoon of January 26 near the end of the shift. There is absolutely no evidence that anyone 

was on the walkway after it was cleared that day. There is evidence that the quarry was 

experiencing snow flurries on the afternoon of January 26. Spencer·salted the walkway first 

thing in the morning the next business day. I credit the testimony of Spencer's witnesses with 

respect to the events of January 26 through January 28. The evidence demonstrates that, at all 

pertinent times, the walkway was "sanded, salted, or cleared of snow and ice as soon as 

practicable." See e.g. Empire Iron Mining Partnership; 19 FMSHRC 1912, 1922 (Dec. 1997) 

(ALJ). There was no need to sand, salt, or clear the snow on the morning of January 27 because 

32 FMSHRC Page 647 
the plant was shut down for the day. Neither Zens nor anyone working in the scale house would 

have entered the production areas of the quarry that day and, even if they did, they certainly 

would never have traveled up the walkway alongside the surge feed belt. 

A number of extraneous issues were raised at the hearing. The Secretary contends that, 

before the citation was issued, Spencer's employees only cleaned off the walkways in the 

morning, even if snow and ice developed later in the day. That issue is not on point here because 

the evidence establishes that the subject walkway was cleared near the end of the shift on January 

26 and again at the start of the shift on January 28, thereby meeting the requirements of the safety 

standard. In addition, I credit Spencer's witnesses that the walkways were cleaned more 

frequently than once a day when conditions warranted. Another issue that was raised concerned 

whether the decking used on the walkway was appropriate for that application given the grade of 

the walkway. The surface of the cited walkway is what is called "tread plate," "diamond plate;" 

or "deck plate." {Tr. 42). That issue is not before me. Citation No. 6328706 is hereby vacated. 

B. Citation No. 6328712 

1. Summary of the Evidence. 

On January 28, 2009, Inspector Scherer issued Citation No. 6328712 under section 104(a) 

of the Mine Act, alleging a violation of30 C.F.R. § 46.12(a)(2) as follows, in part: 

The mine operator failed to provide the independent contractor 

whose employees were working at the mine site of the contractor's 

obligations to comply with MSHA regulations including the 

requirements of Part 46of30 CFR. The contractor has been doing 

construction of mine facilities at the mine site for approximately 

one year and had employed up to 11 new miners. These miners 

were exposed to mine hazards and none of these employees had 

received their new miner training. 

The inspector determined that an injury was reasonably likely to occur and that any injury 

would likely be fatal. He determined that the violation was S&S and that the company's 

negligence was moderate. Section 46.12(a)(2) provides that "[e]ach production-operator must 

provide information to each independent contractor who employs a person at the mine on sitespecific mine hazards and the obligation C>f the contractor to comply with our regulations, 

including the requirements of thi~ part." 30 C.F.R. §46.12(a)(2). The Secretary proposes a 

penalty of $1,304.00 for this citation. 

Spencer admitted that the citation states a violation of the regulation. {Tr. 217). It 

contends that the violation was not S&S. Inspector Scherer testified that Spencer did provide the 

independent contractor with a list of the mine-specific hazards .. {Tr. 181). Records of this 

training were maintained. Spencer failed to make sure that the contractor and its employees were 

32 FMSHRC Page 648 
aware ofMSHA's safety standards and training requirements. (Tr. 182). The contractor, 0.L. 

Bussmus Construction, Inc., was building a new screen wash plant and other mine facilities. The 

construction project had begun during the spring of2008. Bussmus had up to eleven employees 

at the site. These employees were exposed to the hazards that are generally found at surface 

mines. (Tr. 183). One Bussmus employee was injured on the job at the quarry in July 2008 

when some material fell from a flat-bed truck. The inspector testified that an untrained miner is a 

hazard to himself and to other miners working at the quarry. 

Inspector Scherer determined that the violation was serious and S&S because the 

condition created a discrete hazard and it was reasonably likely to result in an injury of a 

reasonably serious nature. (Tr. 185). The inspector testified that Mr. Waldera thought that he 

had complied with MSHA training requirements when Spencer gave them a list of site-specific 

hazards. (Tr. 185-186). Inspector Scherer also issued several citations to Bussmus. (Tr. 187; 

Ex. G-11 ). Scherer said that Mr. Bussmus told him that he would have gladly complied with 

MSHA's regulations had he known about them. (Tr. 188). 

Mr. Waldera testified that Spencer provided site-specific training to the Bussmus 

employees. (Tr. 200; Ex. R-8). The training forms used by Spencer lists the typical hazards 

encountered by vendors, salesmen, delivery men, and repair men. (Ex. R-8). W aldera admitted 

that new miner training is different from site-specific hazard training. (Tr. 205). He also 

admitted that, if a contractor is unaware ofMSHA's training requirements, it would be unable to 

develop a training plan for its employees. 

2. Analysis 

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could ~ignificantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

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

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.~ 

Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the . 

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

mandatory safety standard; (2) a discrete safety hazard - that is, a 

measure of danger to safety - contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

32 FMSHRC Page 649 
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 101-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section· 104( d)(l ), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of "continued normal mining operations." ·u.s. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

I find that the Secretary established that this violation was S&S. The Secretary 

established all four elements of the S&S test. Although it is true that many of the hazards that 

the contractor's employees faced would not be substantially different from the hazards they 

normally face on construction projects, the mining environment presents challenges that are not 

typically present at other construction sites. As stated above, the third element of the S&S test 

requires that the secretary establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury. Spencer did not advise Bussmus that it had to have 

a training plan in place so that its employees could receive new miner training. As a 

consequence, the employees of Bussmus had not completed MSHA-required training while they 

worked at the quarry. Bussmus apparently knew nothing about MSHA or its regulatory 

requirements. Based on the evidence presented at the hearing, I find that, if the violative 

condition had not been abated, there was a reasonable likelihood that it would have contributed 

to an injury of a reasonably serious nature. I also affirm the inspector's gravity and negligence 

determinations. As Inspector Scherer stated, an untrained miner is a hazard to himself and to 

others. The training regulations are a key part of the mine safety program established by the 

Mine Act. 

32 FMSHRC Page 650 
II. APPROPRIATE CIVIL PENALTY 

Section l lO(i) of the Mine Act sets forth the criteria to be considered in detennining an 

appropriate civil penalty. The record shows that Spencer had five paid violations at this quarry 

during the two years preceding this inspection. (Ex. G-13). Only one of these violations was 

S&S. The mine worked about 41,375 employee-hours in 2008 and 41,250 employee-hours in 

2009, making it a relatively small operation. The violation was abated in good faith. No 

evidence was presented to show that the penalty assessed in this decision will have an adverse 

effect on Spencer's ability to continue in business. The violation was serious and Spencer's 

negligence was moderate. Based on the penalty criteria, I find that the Secretary's penalty of 

$1,304.00 is appropriate. 

III. ORDER 

For the reasons set forth above, Citation No. 6328706 is VACATED and Citation No. 

6328712 is AFFIRMED. Spencer Quarries, Inc., is ORDERED TO PAY the Secretary of 

Labor the sum of $1,304.00 within 30 days of the date of this decision. 1 Upon payment of the 

penalty, this case is DISMISSED. 

Distribution: 

Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102 

(Certified Mail) 

RWM 

1 Payment should be sentto the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

32 FMSHRC Page 651 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION; (MSHA), 

Petitioner 

v. 

SPENCER QUARRIES, INC., 

Respondent 

72119"' Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577 /FAX 303-844-5268 

June 23, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2009-334-M 

A.C. No. 39-00024-178265 

Spencer Quarries, Inc. 

ORDER CORRECTING DECISION 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (''MSHA''), against Spencer 

Quarries, Inc., ("Spencer") pursuant to sections 105 and 110 ofthe Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case involves four 

citations. Citation Nos. 6328706 and 6328712 were adjudicated at a hearing held on April 13, 

2010 and Spencer agreed to pay the Secretary's proposed penalties for Citation Nos. 6328708 

and 6328711. On June 17, 2010, I issued my decision on the two adjudicated citations but I 

inadvertently did not include in the decision a discussion of the other two citations. Citation No. 

6328708 alleges a violation of section 56.11012 ofMSHA's safety standards and the Secretary 

proposed a penalty of $100.00 for the citation. Citation No. 6328711 alleges a violation of 

section 56.14100(d) ofMSHA's safety standards and the Secretary proposed a penalty of 

$100.00 for fu.e citation. I find that these proposed penalties are appropriate under the criteria set 

forth in Section 11 O(i) of the Act. 

Consequently, Citation Nos. 6328708 and 6328711 are AFFIRMED and my order in 

Section ID of my June 17, 2010, decision is CORRECTED to show that Spencer Quarries, Inc., 

is ORDERED TO PAY the Secretary of Labor the sum of$1,504.00 within 30 days of the date 

of this order. 1 

Richard W. Manning 

Administrative Law Judge 

1 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

32 FMSHRC Page 652 
Distribution: 

Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (E-mail and First Class Mail) 

Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102 {EMail and First Class Mail) 

RWM 

32 FMSHRCPage 653 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY ANDHEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

72119th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

June 17, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2009-1067 

A.C. No. 46-07273-178983-01 

INDEPENDENCE COAL COMP ANY, INC., 

Respondent. 

Mine: Justice #1 

Appearances: 

Before: 

DECISION 

Ben Chaykin, Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Petitioner; 

Carol Marunich, Dinsmore Shohl LLP, Charleston, West Virginia, for 

Respondent. 

Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration, against Independence Coal 

Company Inc., ("Independence") pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or "Act"). The case involves 

one citation issued by MSHA under section 104(d) of the Mine Act at the Justice #1 mine 

operated by Independence Coal Company, Inc. The parties presented testimony and 

documentary evidence at the hearing held in Charleston, West Virginia on May 5, 2010. At the 

conclusion of the hearing, the parties made oral arguments, and a decision was rendered from the 

bench. This decision incorporates the decision issued from the bench, and adds to that decision. 

There is some minor editing of transcript pages 226 through 249, which is incorporated into this 

decision and set out below. For the reasons stated on the record, and as further explained below, 

Citation No. 8073156 is affirmed as issued and Independence Coal is ordered to pay the 

proposed penalty of$63,000.00. 

The parties entered into certain stipulations that were accepted by the Court and entered as 

Exhibit 1 in the case. 

32 FMSHRC Page 654 
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Independence Coal Company, Inc., operates the Justice #1 Mine (the "mine"), an 

underground, bituminous, coal mine in Boone County, West Virginia. The mine is subject to 

regular inspections by the Secretary's Mine Safety and Health Administration ("MSHA") 

pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that 

Independence is an operator as defined by the Act, and is subject to the jurisdiction of the 

Federal Mine Safety and Health Review Commission. Ct. Ex. 1. 

(Tr. 227-228). 

In the matter of Independence Coal Company, Docket 

WEV A 2009-1067, I will enter the following order: 

This case is before me on a Petition for Assessment of 

Civil Penalty filed by the Secretary of Labor against Independence 

Coal pursuant to Sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, the Mine Act. The case involves one 

citation issued by MSHA U.nder Section 104(d) of the Mine Act at 

the Justice No. 1 Mine operated by fudependence Coal. The 

parties presented testimony and evidence at a hearing held in 

Charleston, West Virginia, on May 5th, 2010. 

At the beginning of the hearing, the parties introduced 

certain stipulations that were accepted by the Court and entered as 

Court Exhibit 1, which will be made a part of the file. These 

stipulations relate primarily to the jurisdictional issues in this case. 

Independence Coal Company operates an underground bituminous 

coal mine, the Justice No. 1 Mine[, located in] ... Boone County, 

West Virginia. The mine is subject to regular inspections by the 

Secretary's Mine Safety and Health Administration pursuant to 

Section 103(a) of the Act. As I mentioned, the parties stipulated 

that Independence is an operator as defined by the Act and is 

subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission. 

· On January 20, 2009, John Crawford, an MSHA inspector, conducted a methane spot 

inspection at the Justice No. 1 mine. The mine is on a five day spot inspection due to high 

liberation of methane. Crawford was accompanied during most ofhis inspection by Greg Neil, 

the mine foreman. While at the mine, Crawford issued the ( d)(l) citation at issue. 

a. Citation No. 8073156 

32 FMSHRC Page 655 
Inspector Crawford issued Citation No. 8073156 to Independence for a violation of 

Section 75.380(d)(l) of the Secretary's regulations. The citation alleges that: 

[t]he secondary escapeway on the no. 9 track at Break 18 is not 

maintained in a safe condition to assure passage of anyone 

including disabled persons. Water covers the entry for 

approximately 150 feet (modified to 332 feet), rib to rib, and was 

measured 15 inches deep in one area. The water is dark and cloudy 

in color and not transparent. The track, ties, loose rock and coal 

under the water make travel perilous. This condition is obvious, 

extensive, has existed for numerous shifts and was known by the 

foreman and examiners, who recorded it as ''water on track". 

Water marks on the mine ribs measure more than 12 inches above 

the current water levels. This is more than ordinary negligence 

and the operator displayed aggravated conduct in allowing persons 

to work with only one escape way. This is unwarrantable failure 

to comply with a mandatory standard. Persons were in the area to 

examine, set pumps and check the pumps. Crews were removed 

from the mine until two travelable escape ways were provided. 

The inspector found that a fatal injury was reasonably likely to occur, that the violation was 

significant and substantial, that forty persons would be affected, and that the violation was the 

result of reckless disregard on the part of the operator. The Secretary has proposed a civil 

penalty in the amount of $63,000.00. 

1. The Violation 

John Crawford, an MSHA mine inspector since April 2007, has worked in the mining 

industry since 1974. Crawford is an inspector in the Madisonville MSHA office. 

Inspector Crawford testified that on January 20, 2009, prior to going underground, he 

was reviewing records of the Justice #1 mine when he overheard comments by Greg Neil, a mine 

foreman, about water in the escapeway. The primary escapeway in this mine is a great distance 

from the secondary and is very narrow, steep and wet. The second escapeway, the subject of the 

citation at issue, contains a track for travel along the escapeway. 

When Crawford arrived at #9 headgate, he looked outby and observed water covering the 

escapeway from rib to rib. The water was cloudy, dark and non-transparent, obscuring the 

bottom. This particular entry is a track entry with an uneven bottom. The entry floor has rails, 

ties, and blocks to level the track, as well as loose coal and rock. Crawford credibly testified that 

he measured the depth of the water to be 15 inches, but that it got deeper as the escapeway 

progressed. He felt it was not safe to go on traveling through the water because he couldn't see 

what he was walking on. He originally estimated that the water went on for 150 feet, but later 

learned that it extended for more than 300 feet. There were higher water marks on the wall, i.e., 

32 FMSHRC Page 656 
at one point a water mark was more than 12 inches above the actual water level at the time of the 

inspection. 

Crawford explained that it was not only unsafe to walk in that escapeway. it was also not 

safe to drive anything in that depth of water since the water could enter into the electrical part of 

the man-trip, cause a short, and result in miners being stranded in even deeper water while the 

vehicle blocked the passage of other miners behind it. 

Once the citation was abated, and the water removed, Crawford was better able to 

observe the area. He observed the condition of the roadway and could see blocking of track, 

track ties and the uneven mine bottom. Further, he recalled areas that had an eight-inch ledge 

and blocked the outside rails. The escapeway sloped downhill after passing the area where he 

took the 15-inch water depth measurement and then gradually sloped back uphill. Crawford 

could see that the downhill portion was deeper than the 15 inches he measured. Neil explained 

that the deeper area is where water is pumped from and, in some instances, held when pumping 

from other parts of the mine. 

The Respondent argues that there is no violation because miners would use a mantrip to 

get out of this area and would not have to walk on the uneven bottom. Further, it argues that 

there is another escapeway, and that the condition was not as bad as Crawford described. Neil 

testified that he could walk the area without stumbling or falling. Neil also testified that miners 

are trained in an emergency to move slowly and not panic and, therefore, they could pass 

through this area. 

I credit Crawford's testimony that the area was not passable, especially in an emergency. 

Since miners would need to move quickly through the area, the water and obstructions would 

cause miners, especially stretcher bearers or others assisting disabled persons, to slow their 

egress, to slip and fall, or drop the stretcher, thereby hindering their ability to escape at all. I find 

that the escapeway was not maintained in a safe condition and that it would be difficult for 

miners, particularly disabled miners, to travel the escapeway. For those reasons, and reasons 

that follow, I find that a violation is established. At hearing, I read the following findings into 

the record: 

On January 20th, 2009, Inspector John Crawford conducted 

a methane spot inspection at the mine. This was a five-day spot 

inspection, which is the highest level due to the methane emissions 

at the Justice No. 1 Mine. He was accompanied during his 

inspection by Greg Neil, the mine foreman. While at the mine, 

Crawford issued the (d)(l) citation at issue here. which is Citation 

No. 8073156. Inspector Crawford issued the citation to 

Independence Coal Company for a violation of75.380(d)(l) of the 

Secretary's regulations. 

32 FMSHRC Page 657 
The citation alleges that the secondary escapeway on the 

No. 9 track at break 18 is not maintained in a safe condition to 

assure passage of anyone, including disabled persons. The 

inspector goes on to explain and testified that the water covered 

the entry for approximately 100 feet as he could initially see it. 

Later when he was able to measure it, he determined that it 

covered the entry for 332 feet, approximately, rib to rib and was 

measured 15 inches deep in one area. The water was dark and 

cloudy in color, not transparent. The track, ties, loose rock, and 

coal under the water made travel perilous. The condition is 

obvious, extensive, has existed for numerous shifts, and was 

known by the foreman and examiners who recorded it as ''water on 

track." Watermarks on the mine ribs measured more than 12 

inches above the current water levels. 

This is more than ordinary negligence, and the operator 

displayed aggravated conduct in allowing persons to work with 

only one escapeway. This is an unwarrantable failure to comply 

with the mandatory standard. Persons were in the area to set 

pumps, examine, and check the pumps. Crews were removed from 

the mine until two travelable escapeways were provided. 

The inspector found that a fatal injury was reasonably 

likely to occur, that the violation was significant and substantial, 

that 40 persons would be affected, and that the violation was the 

result of reckless disregard on the part of the operator. The 

Secretary initially proposed a civil penalty in the amount of 

$63,000. 

Mr. Crawford testified that he has been a mine inspector 

since April 2007. He worked in the mines since 1974. He's 

worked in various positions in underground coal mines and for a 

time was an EMT and paramedic. 

Inspector· Crawford testified that he went to the mine on 

January 20th, 2009. While he was looking at the books or the 

records, he overheard Mr. Neil talking about water in the 

escapeway. He talked a little bit about how narrow the primary 

escapeway is, that it's wet and steep. The area he issued a citation 

is the secondary escapeway. 

Mr. Neil and Inspector Crawford went to the No. 9 

headgate area, and as he looked outby, he saw water rib to rib --

Inspector Crawford did. The water was cloudy, dark, not 

32 FMSHRC Page 658 
transparent. He could not see the bottom. This is a track entry, so 

it has rails, ties, blocks to level the track, coal, rock, and an uneven 

bottom. 

He credibly testified that the depth was 15 inches in some 

places. He walked into the water until he thought it was no longer 

safe to go on. He measured it with a ruler and measured it to be 15 

inches. He couldn't see under the water that was murky, so he 

decided to turn around and that it was not safe to go on through the 

escapeway at that time; He estimated the water to extend for about 

150 feet, and, as I said, he later modified thatto 332 feet when he 

had a chance to actually measure it. At one point, he noted a 

watermark on the wall that indicated the water level had at one 

time been approximately 12 inches higher than it was ... [at the 

time of his inspection.] 

Inspector Crawford testified that it was not safe to take 

anything into the water, to not walk in it, or to take the mantrip, as 

the water could enter into the electrical parts of the mantrip and 

cause a short, thereby causing the mantrip not to work and become 

stuck in the escapeway. 

Inspector Crawford noticed that there was no action taken 

to remove the water, so he removed the crews from the mine. The 

fire boss shut off the water feeding the area and went to get a pump 

or a different pump. It took about four hours to remove the water 

from the entryway. At that point, he returned to the area and 

measured it to be 332 feet. 

. He observed the condition on the roadway and could see 

-- once the water was gone, he again observed the condition of the 

roadway, and he could see blocking of track, track ties, the mine 

rough bottom, and remembers in areas that there had been an 8-

inch ledge blocking.outside of the rails. The area went downhill at 

a location past where he took the 15-inch measurement, and then it 

went back uphill. At the downhill point, it was deeper than the 15 

inches where there is a low spot. 

The water accumulations created a tripping and stumbling 

hazard. If anyone had traveled the area, they could get .fractures 

from falling, dislocation. If they struck their head, they could 

become unconscious and it would be fatal. If they were carrying 

an injured miner on a stretcher, that would multiply the risk. 

Inspector Crawford testified that the mine operator is required to 

32 FMSHRC Page 659 
maintain the escapeway for travel of all persons and considered 

this to be a violation. He .determined that it was unsafe to travel 

through the escapeway. 75.380(d)(l) requires that each escapeway 

shall be maintained in a safe condition to always assure passage of 

anyone, including disabled persons. 

Inspector Crawford looked at the water, at the color. He 

couldn't see the bottom. He understood there were drop-offs, that 

there were rock, coal, tracks, and a number of tripping hazards 

under the water that could not be seen by walking in the water. 

The type of the bottom was rough, and it extended over a long 

area. This is.an area where the roof is about 6 to 7 feet high. The 

water was rib to rib in many areas. Stumbling and falling is the 

primary hazard. Carrying. a stretcher multiplies the hazard, and 

escaping in smoke and fire in an emergency, this would be a 

difficult place to travel. It's not safe for persons during an 

emergency evacuation. 

As Inspector Crawford testified, the slip-and-fall hazard 

precluded swift passage. It would be difficult at best to negotiate 

the slippery, rocky bottom with the tracks carrying a stretcher. 

During an emergency, miners would likely need to move quickly 

through the area in order to seek safe passage away from what 

could be a dangerous underground environment. This would slow 

down the evacuation, if not prevent it altogether. So I credit the 

testimony of Inspector Crawford and find that there is a violation 

as he cited and for the reasons that he cited. 

[The mine argues] ... that there is not a violation because 

there is no hazard, that Mr. Neil traveled the area and didn't see a 

hazard . . . . He could walk through it, as he did after leaving the 

inspector. I disagree with Mr. Neil and, based on the testimony of 

Inspector Crawford, find that the conditions clearly presented a 

hazard in the escapeway. 

There was a lot of testimony about methane behind the 

seals, ignition sources, and the fact that no other citations were 

issued that day that contributed to this hazard. However, I'm not 

required to find that there was the possibility of a methane or other 

mine fire, because this is an emergency situation and I look to the 

fact that the. standard goes to an emergency, and I look at the 

emergency conditions in that case. 

32 FMSHRC Page 660 
(Tr. 228-234). 

I also relied upon several cases that are very similar to this: 

Maple Creek Mining, 27 FMSHRC 555 (August 2005), and Eagle 

Energy, Inc., 23 FMSHRC 829 (August 2001). Both are very 

similar to this case, and in both cases the Commission upheld the 

violation, the significant and substantial nature of the violation, 

and the unwarrantable failure. Although, obviously, I base it on 

the facts of this case, I do rely on the legal conclusions of the 

Commission in those two cases. 

I would also mention with regard to the hazard that there 

was some discussion about evacuation during an emergency, and I 

certainly -- I understood Mr. Neil's testimony that he had been, in 

his experience, especially as an EMT -- had to negotiate difficult 

passages. However, I credit Inspector Crawford's testimony that, 

in reality, these miners try to escape quickly. If there's smoke in 

the area, they're disoriented by the smoke. 

30 C.F.R. § 75.380(d)(l) requires that "[e]ach escapewayshall be ... [m]aintained in a 

safe condition to always assure passage of anyone, including disabled persons." 

In American Coal Company, 29 FMSHRC 941 (Dec. 2007), the Commission held that an 

operator violates the requirements of Section 75.380(b)(l) to "provide" escapeways when its 

miners are "substantially hindered or impeded from accessing designated escapeways." In 

reaching this conclusion, the Commission stated the following regarding the purpose and 

legislative history of escapeways which is equally applicable to the case here: 

There is no disputing that escapeways are needed for miners to 

quickly exit an underground mine and that impediments to a 

designated escapeway may prevent miners from being able to do 

so. The legislative history of the escapeway standard states that 

the purpose of requiring escapeways is "to allow persons to escape 

quickly to the surface in the event of an emergency." S.Rep No. 

91-411, at 83, Legis.Hist., at 209 (1975). 

29 FMSHRC at 948. 

This case is very similar to Maple Creek Mining Inc., 27 FMSHRC 555 (Aug. 2005), and 

Eagle Energy Inc., 23 FMSHRC 829 (Aug. 2001), in which the Commission found a violation of 

30 C.F.R. § 75.380, where it was demonstrated that miners could not quickly and safely exit the 

mine in the case of an emergency. 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

32 FMSHRC Page 661 
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajfd, Sec'y 

of Laborv. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 

(Nov. 1989). The Secretary has met her burden of proving that, on the day of inspection, the 

escapeway was not maintained in safe condition. I find that the Secretary has established a 

violation. 

2. Significant and Substantial Violation 

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

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

reasonably serious nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[i]n order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving 

Mathies criteria). · 

As noted above, I find that there is a violation of the mandatory safety standard as alleged 

by the Secretary. Second, I find that a discrete safety hazard existed as a result of the violations, 

i.e., the danger associated with persons not being able to evacuate the area safely and quickly 

during an emergency. Third, I find that, in addition to the risks associated with not being able to 

safely and quickly evacuate the mine, there is also a slip-and-fall hazard, which can create 

injuries for anyone walking in the area. Fourth, I find that it is reasonably likely that any injury 

resulting from the aforementioned hazards would be serious or even fatal. 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

32 FMSHRC Page 662 
We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836(August1984). We have emphasized that, in 

accordance with the language of section 104( d)(l ), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in consideration of the length of time that the violative condition 

existed prior to the citation and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

In this case, the significant and substantial element must be considered in terms of an 

emergency. If there were a fire, smoke would be present, visibility would be poor, dust would 

be in the air and all lights would more than likely be out. Smoke causes miners to become 

disoriented and panic. Crawford, who has been in a mine accident, explained that, in an 

emergency, it is easy to forget the things you have been previously taught to do. When a miner's 

sense of sight is rendered useless during an emergency, it is reasonably likely that the condition 

of the subject escapeway would prevent escape. Miners would be left standing in cold water as 

the water level became higher and higher. This, in turn, may force the miners to look for another 

way out and be further hindered in their escape. 

I credit Crawford's testimony regarding the likelihood of the slip-and-fall hazard that 

precluded swift passage out of the mine. The area would be difficult to negotiate given the 

slippery, rocky bottom, especially when carrying a stretcher. Neil testified on behalf of the 

operator that the area was passable, and that he had seen worse as an EMT. However, the 

evidence established that during an emergency, miners would likely need to move quickly 

through the area in order to seek safe passage away from what could be a dangerous 

underground environment. The condition of the escapeway, as cited by Crawford, would slow 

down the evacuation, if not prevent it. At hearing, I read the following findings into the record: 

I find that the Secretary has met the burden of proving all 

elements of the alleged violation by a preponderance of the 

evidence in this case, so I will now address the significant and 

substantial nature, and I have already addressed some of the 

factors I've relied on in finding that this violation is significant and 

substantial. 

32 FMSHRC Page 663 
A significant and substantial violation is described, in 

Section 104( d)(l) of the Act, as a violation of such a nature as 

could significantly and substantially contribute to the cause and 

effect of the coal or other mine safety or health hazard. A 

violation is designated S & S if, based upon the particular facts 

surrounding that violation, there exists a reasonable likelihood that 

the hazard contributed to or resulted in injury or illness of a 

reasonably serious nature, and that's the National Gypsum case ... 

. [T]he Commission set out a four-part testin the Mathies case 

which I rely on here. 

First, in order to establish the violation -- to establish S & 

S, I must find that there is a violation, and I have already done that 

in this case. Second, I must find that there is a discreet safety 

hazard, a measure of danger to safety contributed to by the 

violation, and as I have discussed above, I do find that there is a 

discreet safety hazard that existed as a result of this violation, the 

danger of persons not being able to evacuate the area safely and 

quickly during an emergency. In addition to that, I find that there 

is a slip-and-fall hazard separate and apart [from] ... an 

emergency that is a hazard to anyone walking in the area. 

The third part of Mathies is a reasonable likelihood that the 

hazard contributed to or resulted in an injury, and the hazards 

described by Inspector Crawford, the slip-and-fall hazard, the 

hitting-of-his-head hazard, and the failure [of] ... being able to . 

escape adequately during an emergency will result not only in an 

injury from the slip and fall, which would be a broken bone, or 

from a head injury, but could result in a fatal injury if the miners 

are not able to escape during an emergency, and tied together with 

that is a reasonable likelihood that the injury will be serious, and I 

think rve addressed that. It is very serious. The injuries would be 

very senous. 

I understand that Mr. Neil testified that he thought it might 

be a -- the only injury he could see would be a twisted ankle or 

getting wet, but I credit Inspector Crawford's testimony that it's far 

more serious than that and that it could lead to a fatality, especially 

if there is an emergency evacuation and miners cannot get through 

this escapeway. Or even if they're slowed down getting through 

the escapeway, that's enough to cause a fatality. 

The evaluation I have made is made with the consideration 

of the length of the time that the condition existed prior to the 

32 FMSHRC Page 664 
citation, which was ... five shifts and several days. And if it had 

continued to exist in normal miningoperations,·and I think it 

would have -- given the testimony of Mr. Neil that 15 inches he 

didn't consider a hazard, that it was routine for the mine, this 

would have [remained] ... unabated unless Inspector Crawford 

had stepped in and done something about it. 

I'm going to address the number of persons affected. 

Inspector Crawford relied on Mr. Neil to tell him how many 

miners were at the mine that day, and I understand that that 

number was 40 working underground. Inspector Crawford relied 

on that number, and I agree it's ... accurate. l understand that the 

mine' s argument is that not all 40 of them were working in the 

area, or maybe not all 40 of them would have used that escapeway. 

However, if there were a mine emergency and the primary 

escapeway was blocked, which is one of the reasons for a 

secondary escapeway, all of the miners would have had to 

maneuver through the secondary escapeway, and I agree with 

[Crawford] that 40 people would have been affected by that 

condition. 

I think the fact that Inspector Crawford stepped into the 

water and decided that it was not safe to walk any further certainly 

shows that it was a serious hazard. I know that Mr. Neil said he 

did walk through it and that he wasn't injured; however, the case 

law does not require me to find that an accident has occurred, 

based on someone's actions on that day. 

_ Crawford testified that the slip and falls in the muck could 

result in broken bones, leg and back injuries, and, of course, I've 

already addressed the injuries associated with the not being able to 

escape during an emergency. Any delay in miners evacuating the 

mine in an emergency increase the dangers posed by the 

emergency, and a delay would prevent miners from getting out 

alive. · 

There were at least two fires at this mine, one in 2008 and 

another in 2009. There is methane at this mine, as it is on a fiveday spot inspection, and there are ignition sources in the mine. At 

the same time, on the same day, there was a citation issued in this 

same area.for a lifeline violation, which also would have been 

related to anyone who was trying to escape at that time. 

32 FMSHRC Page 665 
{Tr. 235-241) 

I find that the preponderance of the evidence establishes 

that it was reasonably likely that the hazards present in the area 

cited would contribute to an injury in the event of an emergency 

evacuation, and even without an emergency evacuation, the slipand-fall hazard would be there. I rely on the testimony of 

Inspector Crawford in reaching this conclusion. He believed that 

the hazards present were tripping and falling and not being able to 

escape during an emergency. [The various injuries would be the 

direct result of having to walk in 15, or more, inches of water on 

·uncertain terrain filled with many hazards.] I credit his testimony 

that if the man-trip were used, it is not reliable, would stop if water 

reached the electrical parts of the man-trip. It would stall and 

further block the escapeway. 

I have taken into consideration the ability of the miners to 

transport an injured miner out of the mine as the safety standard 

requires. And ifl didn't mention that, I will mention that the safety 

standards require that I consider disabled persons, including the 

ability of someone to escape on a stretcher, and I think I addressed 

that. But given the uneven footing, the hidden obstructions, the 

murky water, it would make it reasonably likely that someone --

even more reasonably likely that someone carrying a stretCher 

would.trip and fall and hinder the evacuation process. 

Now, the evacuation process may be mitigated by the 

exercise of caution, the ability to walk cautiously on the part of 

miners, but the Mathies formula does not require me to evaluate 

the ability of the miners to walk cautiously, and rm not sure they 

could do it, and if they could, this area would still slow them down 

if they had to stop and walk cautiously; 

In addition, I credit Crawford's testimony that it is not 

likely, in an emergency situation, that someone can walk 

cautiously through smoke avoiding the necessary hazards. So I 

find that the Secretary has satisfied the four Mathies criteria and 

established the violation as S & S. 

I find that the preponderance of the evidence establishes that it was reasonably likely that 

the hazards present in the subject area would contribute to an injury in the event of an emergency 

evacuation. I rely on the testimony of Inspector Crawford in reaching this conclusion. I have 

taken into consideration the ability of the miners to transport an injured miner out of the mine, as 

the safety standard requires. The uneven footing, the hidden obstructions, the murky water; all 

32 FMSHRC Page 666 · 
these factors make it reasonably likely that a trip/fall would occur, and, during an evacuation, 

would result in slowing down or halting the exit of miners. Further, as mentioned previously, it 

is reasonably likely that these hazards would result in injuries of a reasonably serious nature. 

3. Unwarrantable Failure 

The term "unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

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

"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts were necessary for compliance, the operator's efforts in abating the 

violative condition, whether the violation was obvious or posed a high degree of danger and the 

operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 

588, 593 (June 2001). 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. 

The day the subject citation was issued, Crawford described the condition as extensive, 

obvious and as existing for an extended period of time. He designated the negligence level as 

"reckless disregard" and found the violation to be an unwarrantable failure to comply with the 

mandatory standard. Crawford talked to management and learned that they knew that the 

escapeway was full of water and that it had been in that condition for some period of time. 

Crawford credibly testified to each and every factor used to determine unwarrantability. The 

violation was present for at least five shifts and little action was taken to abate the condition. 

Neil testified that he had requested that some pumping be done but that he had a limited number 

of pumps. This action was not enough. Neil agreed that the condition was obvious and 

extensive, but disagrees that it was unsafe. He agreed that the condition was known for several 

shifts but insisted that the mine was actively attempting to remedy it and, therefore, was the 

result of ordinary negligence, and not reckless disregard. 

Based upon the preshift and onshift reports, and the testimony of all witnesses that the 

accumulation existed on January 18, 19 and into the 20th when the inspector arrived, I find that 

the mine did not approach the problem with the seriousness it demanded. While some records 

show "pumping" as a result of the water, others show no action at all. Ex. 3, 4. 

This mine had been issued previous violations for accumulation of water in escapeways. 

Three citations in the three months prior to this one were issued for escapeways; one in 

December, one in November and one in October. In addition, prior to August 2008, the mine 

had received 25 escapeway violations in a little over a year. Ex. 14. 

32 FMSHRC Page 667 
The term ''unwarrantable failure" is defined.as aggravated conduct 

constituting more than ordinary negligence. That's the Emery 

Mining Corporation, 9 FMSHRC 1997 and again in 2004. 

Unwarrantable failure is characterized by such conduct as reckless 

disregard, intentional misconduct, indifference, or a serious lack of 

reasonable care. Aggravating factors include the length of time the 

violation existed, the extent of the violative condition, whether the 

operator had been placed on notice that greater efforts were 

necessary for compliance, the operator's efforts in abating the 

violative condition, whether the condition was obvious, proposed a 

high degree of danger, and the operator's knowledge of the 

existence of the violation. 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 factors exist. 

fu this case, ... the mine has met all of the factors for 

unwarrantable failure. The length of time the condition exists was 

days. The extent of the violation was very extensive. I think Mr. 

Neil and Mr. Crawford agree on that point. Whether the operator 

had been placed on notice that greater efforts were necessary for 

compliance, I will address the history of violations that show that 

there have been many violations for escapeway issues. The 

operator's efforts in abating the violative condition, I understand 

that there was testimony that the mine tried to pump some of the 

water out, but I don't think it was enough. The efforts were not 

enough. Whether the violation was obvious, I don't think there is 

any question about that. Everyone agrees that it was obvious and 

extensive and posed a high degree of danger. I understand that Mr. 

· Neil and that the mine operator disagree with the inspector's 

characterization as to the high degree of danger, and ... I've 

already addressed that I credit the inspector's testimony that there 

was a high degree of danger, and the knowledge of the existence of 

the violation, which is borne out by the preshift and onshift reports 

in this case. 

The day the subject citation was issued, Mr. Crawford 

described the condition as extensive, obvious, and existing for a 

period of time and marked the citation as reckless disregard. . .. 

When he first walked into the area, he saw that the problem was 

obvious. He had talked with Mr. Neil who clearly knew about the 

problem. It had been in the preshift books for a number of shifts, 

and although some of the preshift books mentioned that someone 

was working on it, given the depth of the water and the number of 

32 FMSHRC Page 668 
times it continued to be in the preshift books, not much was being 

done about it. 

The danger posed by this condition is found and is similar 

to the S & S findings, the slip-and-fall hazard posed by the 

condition, the consequences of an emergency, a stretcher team 

having to navigate through the escapeway. The stretcher team 

would be subject to the same slip-and-fall hazard, and, in addition, 

would unduly delay the provision of critical medical treatment to 

an injured miner and would delay the evacuation of the mine and 

endanger everyone, all 40 miners. Impeded, the evacuation could 

lead to the death of more than one miner and certainly could lead 

to the death of many miners. 

Inspector Crawford found no mitigating circumstances, and 

I understand the mine's position that they could not have done 

more, that they were working on pumping the water, but my 

concern is this -- and I credit Inspector Crawford's testimony in 

this regard. The mine may have had some pumps in the area, and I 

think that was routine, and the fact, number one, that they thought 

15 inches of water is routine and shouldn't really have much done , 

with it causes me to think they were indifferent to the problem, to 

the problem of the water in the escapeway and the hazards that 

were caused by it, the fact that it was in the preshift and onshift for 

a number of shifts, that the preshift and onshift reports and the 

testimony of all witnesses that the accumulation existed on January 

18th, 19th, and on the 20th when the inspector arrived. The 

company did not approach the problem with the seriousness it 

deserved. They had full knowledge of the condition and were not 

doing anything to make the escapeway safe. It had been that way 

for several shifts, andit was their decision not to stop what they 

were doing, tum off the water, and pump the area as they did once 

the inspector arrived. A number of the preshifts showed no action 

taken, but some did show some action was taken later, but it 

certainly wasn't enough, and it was taken seriously. The water 

was obvious and extensive. Everyone knew about it, and it had 

been known for several shifts. 

The evidence shows that in the three months prior to this 

citation, there had been a citation issued each month that related to 

an escapeway, and 25 escapeway violations in a little more than a 

year prior to August 2008. That should put the mine on notice that 

they have issues with their escapeway and maybe it should be 

taken more seriously than they did in this case. Given their history 

32 FMSHRC Page 669 
of methane and the fires that were reported in the mine, it's even 

more obvious in this case. 

There were pumps in place. When they went down, did 

they replace them in a reasonable time? I think given the fact that 

once they stopped what they were doing, put the pumps in place, 

and turned the water off, it only took a few hours to abate the 

violation. It could have been much sooner, and the mine did not 

pay enough attention to get it done like they should have. There is 

really no excuse for waiting such a long time to make that 

escapeway travelable. 

Mr. Neil did not convince me that he was diligently 

working on the water problem and getting it done or that he took 

the issue seriously. He said it was not a hazard and he could walk 

through it. I fmd that there are a lot of excuses at this mine about 

why something isn't done, but this seems like a simple thing that 

was known about and should have been done. 

fu addition, I find it curious that Mr. Neil agreed that there 

was a violation of safeguard, but had not done anything to correct 

that violation that he had believed was also there. It just 

contributes to the indifference that I saw at this mine. 

The mine argues, of course, that they would use a mantrip 

and not walk through, that the mine is pumping and getting water 

out, and that these are mitigating circumstances, that they were 

doing all that they could. However, it's not borne out by the fact 

· that once they focused on the job, it took only several hours to get 

it done, and that given the evidence, the water had reached a much 

higher level than it was at the time the ·inspector was there, and it 

still seemed not to concern anyone. 

(Tr. 241- 247) 

This case is very similar, as I said, to the Maple Creek 

Mining case where the Commission considered the obviousness 

and the danger posed by the blocked escapeway and the previous 

citations as aggravated factors in determining that the violation 

was unwarrantable. I find that the violation was unwarrantable, 

and I find that the facts [as stated in the citation] and the citation as 

issued by the inspector is correct, and I will uphold that citation ... 

[as written and uphold all findings made by the inspector]. 

32 FMSHRC Page 670 
This case is nearly identical to Maple Creek Mining Inc., 27 FMSHRC 555 (Aug. 2005) 

and Eagle Energy Inc. 23 FMSHRC 829 (Aug. 2001) with regard to the unwarrantable failure 

findings. fu those cases, the Commission considered the obviousness of the condition, the 

danger posed by the water in the escapeway, and the previous citations as aggravating factors. 

Those same factors, and more, are present here. 

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 11 O(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 Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties, 

the Commission [ ALJ] shall consider" six statutory penalty criteria: 

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

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

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

effect 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 

J:].Otification 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), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the 

statutory criteria have been made, a judge's penalty assessment for a particular violation is an 

exercise of discretion, which is ''bounded by proper consideration of the statutory criteria and the 

deterrent purpose[s] ... [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 

2000). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size (large operator) and ability to continue in business. The violation was abated in 

good faith, and no evidence has been presented to the contrary. The history shows a number of 

escapeway violations in the months prior to this order, including the violations discussed above. 

I find that the Secretary has established that the negligence amounted to reckless disregard for 

the violation and that the gravity determined in the order is accurate. The total proposed penalty 

of $63,000.00 is appropriate in this case, given the statutory criteria. 

32 FMSHRC Page 671 
III.ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), lassess a 

penalty of $63,000.00 for this violation. Independence Coal Company is ORDERED TO PAY 

the Secretary of Labor the sum of $63,000.00 within 30 days of the date of this decision. 

\'5\~~ ~~ative Law Judge 

Distribution: 

Ben Chaykin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd. 22nd Floor, 

West, Arlington, VA 22209-2247 

Carol Marunich, Sarah Korwan, Dinsmore & Shohl LLP, 215 Don Knotts Blvd. Suite 310, 

Morgantown, WV 26501 

/MM 

32 FMSHRC Page 672 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202·2500 

303-844-5267/FAX 303-844-5268 

June 18, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

CNIL PENALTY PROCEEDING 

Docket No. LAKE 2009-223 

A.C. No. 12-02010-171751-01 

v. 

BLACK BEAUTY COAL COMP ANY, 

Respondent 

Mine: Air Quality #1 

DECISION 

Appearances: R. Peter Nessen, Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner; · 

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for 

· ·Respondent. 

Before: Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor ("Secretary''), acting through the Mine Safety and Health Administration ("MSHA"), 

against Black Beauty _Coal Company ("Black Beauty"), pursuant to sections 105 and 110 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or 

"Act"). The case involves twenty violations, including one 104( d)(2) order issued by MSHA 

under section 104(d) of the Mine Act.at the Air Quality #1 Mine operated by Black Beauty. The 

parties presented testimony and documentary evidence on Order No. 6672489 at a hearing held 

in Evansville, Indiana on March 31, 2010. The remaining 19 violations were settled on the 

record at hearing. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

At all pertinent times Black Beauty operated the Air Quality #1 Mine (the "mine"), an 

underground coal mine near Gibson, Indiana. The Air Quality #1 Mine mined coal and/or coal 

byproducts which affected commerce. The mine is subject to regular inspections by the Mine 

Safety and Health Administration pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). 

The parties stipulated that Black Beauty is an operator as defined by the Act, and is subject to the 

jurisdiction of the Federal Mine Safety and Health Review Commission. Stip. ifif 1-3. 

32 FMSHRC Page 673 
a. Order No; 6672489 

On March 4, 2008, Johnny Moore, an MSHA inspector, issued Order No. 6672489 to 

Black Beauty for a violation of Section 75.l 722(c) of the Secretary's regulations. Moore 

determined that the violation was the result of an unwarrantable failure to comply with the cited 

standard. 

The citation alleges that: 

[t]he guards for the 2 Main West conveyor belt tail piece have not 

been secured in place during equipment operation. The guards 

have been hung by belt chains, tie-wire and loosely fastened 

together with tie-wire. Accumulation of coal fines and mud 

approximately 3 feet deep has created openings up to 19 inches 

wide in the guards. The guards will separate with little pressure 

and swing in several directions. The condition is obvious, 

extensive and existed for a significant amount of time. This 

violation is an unwarrantable failure to comply with the mandatory 

standard. 

The inspector found that a permanently disabling injury was highly likely to occur, that the 

violation was significant and substantial, that one person would be affected, and that the 

violation was the result of high negligence on the part of the operator. The Secretary has 

proposed a civil penalty in the amount of$60,000.00. 

I. The Violation 

Johnny Lee Moore has been an MSHA mme inspector since September 2005. (Tr. 72). 

Moore has worked as a regular inspector and, as recently as seven months prior to hearing, held 

the title of Field Office Supervisor for the Vincennes, Indiana MSHA office. (Tr. 40-41). 

Moore is currently the acting ventilation supervisor in MSHA District 8. (Tr. 39). Prior to 

working for MSHA, Moore was employed in the mining industry as an engineer. (41-42). He 

has a mining engineering degree from the University of Kentucky, and extensive MSHA training 

on guarding. (Tr. 42-43). · 

On March 4, 2008, Inspector Moore traveled to the Air Quality #1 Mine to conduct an 

inspection. Terry Courtney, the shift manager, accompanied Moore during the inspection. (Tr. 

110). After inspecting one conveyor belt, Courtney drove ahead on the mantrip while Moore 

began to inspect the tail piece of the two main west ("2MW") conveyor. (Tr. 53). Moore 

described the area near the tail piece as "muddy'' and noted that there were slip, trip and fall 

hazards along with a semi-buried water line that was slick. (Tr. 59). Further, he stated that the 

ribs were "kind of bad.'' (Tr. 59). 

32 FMSHRC Page 674 
The 2MW conveyor tail piece is protected by three guards. Two of the guards hang on 

the sides of the tail piece, while the third guard is suspended at the end of the tail piece. 1 A large 

sump is located at the end of the conveyor. {Tr. 56). Moore testified that that the sump was 

filled with mud and coal fines approximately three and one half feet deep, and that a pile of the 

same material had accumulated below the tail roller and was pushing the guards apart such·that a 

19 inch gap in the guarding had developed. (Tr. 56, 60-61); Gov. Ex. 3 p. 16-17 of3/4/08 notes. 

According to Moore, there was limited to no walkway around the end of the sump, i.e., 

approximately 9-10 inches wide at most. (Tr. 56). Further, Moore testified that, had he not 

utilized a sounding rod to probe the depth of the sump as he carefully traveled around the end of 

the tail piece, he very well could have "stepped off into [the sump] and grabbed a guard" as he 

fell. (Tr. 61). Moore observed that the guards had been hung like curtains around the tail piece 

using a combination of rusty tie wire2 and chains3

• (Tr. 57-58, 60). According to Moore, while 

tie wire may be properly used to fasten comers, it should never be used to hang guards and, 

instead, the guards should be attached with studs or some type of metal fastener. (Tr. 74). Del 

Culbertson, an examiner at the mine, testified that he was aware that Moore had in the past 

recommended that guards be attached by bolts in order to properly secure them. (Tr. 107). 

Moore noted that some of the tie wire being used to hang the guards was barely hooked at the 

connection points and had not been locked. {Tr. 58). Further, he determined that the guards 

were not secure and could be easily pushed or swung with the application of minimal pressure. 

{Tr. 63). 

According to Moore, while there is little reason for a day-to-day miner to be in the 

subject area, miners would still need to come to this area to conduct preshift examinations and 

service the equipment. (Tr. 57). Moore testified that in order to adequately inspect the end of 

the conveyor it would be necessary to carefully hang on to one. of the side guards so that you 

could lean around and observe the rear guard. (Tr. 56-57). hi the alternative, one could walk 

around to the far end of the sump, however, according to Moore, that would not give a very go·od · 

view of the tail piece or surrounding guards. {Tr. 56-57). 

Culbertson testified that it was unlikely that anyone would slip and fall into the sump 

because most people would not walk around the sump, and rather would just use the crossover 

approximately 20 feet from the tail piece. (Tr. 101). However, he also testified that during an 

examination it was common for him to walk around the sump atthe 2MW tail piece. (Tr. 97). 

Culbertson indicated that the guarding arrangement on the tail piece had not been changed in the 

past six to seven years, and that he conducted the examination of the 2MW belt on March 3rd; 

1 Moore testified that small pieces of guarding were attached to the bottom of the three guards surrounding the tail 

pieces. These small additional guards were buried in the mud and were not discovered by Moore until the area was 

cleaned. (Tr. 58). · 2 According to Moore, tie wire can be different gauges, but the particular wire u8ed on the subje~t guards was similar 

to the thickness of a clothing hanger and was very flexible. (Tr. 68-69). Generally tie wire is used to tie up cable. 

Moore indicated that, although tie wire is generally coated in rubber, it begins to rust quickly in the corrosive mine 

environment if the rubber wears off. {Tr. 68-69). According to Terry Courtney, tie wire is not as strong as a chain. 

(Tr. 118). 3 Moore testified that the use of chains to hang the guards is satisfactory. (Tr. 74). 

32 FMSHRC Page 675 
and found no deficiencies, including no buildup of accumulations at the tail end of the conveyor. 

(Tr. 99, 106). 

Terrance Kiefer, also a mine examiner, conducted the examination of the subject belt the 

day the order was issued, i.e., March 4th. (Tr. 137). Kiefer testified that he used the.crossover to 

examine the tail piece from each side so that he didn't have to go around the sump. (Tr. 137, 

138). Kiefer could not remember any problems with the guards on March 4th, and, if there had 

been any problems he would have put them in his notes. (Tr. 139). He further testified that, on 

March 4th, he did not see any accumulations of mud or dirt pushing the guards out at the tail end. 

(Tr. 142). 

Moore testified that the condition was obvious and that the "poor construction [of the 

guards] was immediate and very noticeable right off the bat." (Tr. 53, 60). He instructed 

Culbertson to shut down the conveyor. {Tr. 53, 60, 100). Moore issued order number 6672489 

as a 104(d)(2) order for a violation of 30 C.F.R. § 75.l 722(c). {Tr. 45); Gov. Ex. 2. 

Shortly after the belt was stopped and the order issued, Terry Courtney returned to the 

area of the 2MW tail piece. {Tr. 54, 111-112). As Courtney traveled around the tail piece, he 

slipped and, while falling into the sump, grabbed on to the end of one of the guards that was 

hung by a chain. (Tr. 57, 113). Moore did not see Courtney grab the guard, but he heard him 

fall into the sump. {Tr. 67-68). According to Moore, Courtney told him that he had grabbed the 

guard. {Tr. 67-68). Courtney testified that the guard did not fail when he grabbed it and he did 

not come in to contact with the tail roller. (Tr. 113). 

Moore testified that the alleged violative condition was abated by cleaning the area, 

including the sump, so.that the.guards were accessible, fabricating one guard to replace the end 

guard which was in very poor condition and, finally, securely attaching the guards with 

mechanical f(,lsteners. (Tr. 67); Ex. G-2. According to Moore, the cleaning and repairing of the 

guards took approximately five hours. (Tr. 65) 

The Commission has recognized that "[t]he purpose of section 75. l 722(c) is to prevent 

accidents in the use of equipment." Arch of Kentucky, Inc., 13 FMSHRC 753, 758(May1991), 

affg 12 FMSHRC 536 (Mar. 16, 1990) (AU). The regulation requires that "[e]xcept when testing 

the machinery, guards shall be securely in place while machinery is being operated." 30 C.F.R. 

§ 75.l 722(c)(emphasis added). The Secretary's regulations do not define what it means for a 

guard to be "securely in place." The Commission has held that in the absence of a regulatory 

definition of a word, the ordinary meaning of that word may be applied. See Bluestone Coal 

Corp., 19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996), 

ajj'd, 111 F.3d 963 (D.C. Cir. 1997). If, however, a standard is ambiguous, courts have deferred to 

the Secretary's reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 

40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec'y a/Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 

321 (D.C. Cir: 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly 

erroneous or inconsistent with the regulation' ")(quoting Bowles v. Seminole Rock & Sand Co., 325 

U.S. 410, 414 (1945) (other citations omitted)). The Secretary's interpretation of a regulation is 

reasonable where it is "logically consistent with the language of the regulation[] and ... serves a 

32 FMSHRC Page 676 
permissible regulatory function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) 

(citation omitted). 

The ordinary meaning of "secure," the verb form of the adverb in question, is instructive. 

Webster's defines "secure" as "to make fast." Webster's New Collegiate Dictionary 1037 

(1979). Webster's goes on to define "fast" as "l a: firmly fixed ... c: adhering firmly ... d: not 

easily freed ... e: [stable]." Id. at 413. Relying upon the ordinary meaning of these words, the 

Secretary's regulation seems to require that guards be firmly fixed in place such that they are not 

easily moved while machinery is in operation. The Secretary's interpretation of the cited 

standard, set forth in the MSHA Program Policy Manual ("PPM"), seems to echo the ordinary 

meaning. The PPM, for purposes of this particular analysis, states that "[g]uards installed to · 

prevent contact with moving parts of machinery shall ... [b ]e firmly bolted or otherwise 

installed in a stationary position." V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 

75.1722 ("PPM'). Based on the above analysis, the cited mandatory standard requires guards to be 

firmly fixed in a stationary position. 

I credit Inspector Moore's testimony that the poor condition of the guards was easily noticed 

and that the guards could be easily pushed or moved with the application of minimal pressure. I 

find that the guards, specifically those guards hanging by the rusty tie wire, were not fastened in 

a manner that could be described as "firmly fixed" or "in a: stationary manner." In fact, the 

guards were so loose that they were being pushed away from the tail piece by accumulations of · 

materials that had built up in the sump and under the tail piece, thereby creating a large gap in 

the guarding. I question whether Culbert or Keifer were conducting adequate exams given that 

they failed to notice these accumulations. The guards were not "securely" in place, as required 

by the cited standard. The belt was running at the time Moore began his inspection·of the tail 

piece, and no evidence has been presented that any sort of testing was underway. For those 

reasons, I find that Black Beauty violated the cited standard. 

Black Beauty argues that the guards were secure, as evidenced by Courtney falling and 

grabbing the guard which prevented him from coming into contact with the tail pulley. However, I 

credit Inspector Moore's testimony that it was only by chance that Courtney happened to grab the 

end of a guard that was hung by a chain, as opposed to rusty tie wire. I further credit Moore's 

testimony that, had Courtney grabbed the end of a guard hung by tie wire, the inadequate securing of 

the guard would not have prevented contact with the pulley. For those reasons, I reject Black 

Beauty's argument. 

Black Beauty also argues that the 19 inch gap in the guarding is not a violation of the 

standard at issue and, in addition, need not be guarded because there is no "reasonable possibility 

of contact and injury," as required by Commission case law. BB Br. 11 (citing Thompson 

Brothers Coal, 6 FMSHRC 2094, 2097 (Sept. 1994)). Again, I reject Black Beauty's argument. 

While I need not reach the question of whether the gap in the guard is a violation of the cited 

standard, I take note of the fact that the gap was caused in large part by the unsecure nature of 

the guards, which allowed the guards to be pushed outwards by accumulations which had built 

up underneath the tail piece. Nevertheless, I credit Inspector Moore and his drawings which 

indicate that the gap spanned 19 inches at the widest point. While the gap may not be 19 inches 

32 FMSHRC Page 677 
at the top, it is a gap nonetheless, and provides an opening where a miner may come in contact 

with the pulley at a distance much less than 30 inches. Based on Courtney's fall, the mine 

cannot dispute that it is easy for a miner to slip and fall into the guarding. When that happens, it 

is reactionary to grab onto, or attempt to grab onto, anything in reach. I find that the gap in the 

case, whether it was 19 inches or narrower, was a direct result of the guards not being "securely'' 

in place. 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), affd, Sec'y 

of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152. 

The Secretary has met her burden of proving that, on the day of inspection, the mine failed to 

comply with the cited standard. I find that the Secretary has established a violation. 

2. Significant and Substantial Violation and Gravity 

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect ofa coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

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

reasonably serious nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[i]n order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the underlying violation ofa 

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

First, as noted above, I find that there is a violation of the mandatory safety standard as 

alleged bythe Secretary. Second, I find that a discrete safety hazard existed as a result of the 

violation. The guards were capable of being ea.Sily moved by the application oflimited pressure. 

The guards were loosely hung by tie wire and had been pushed away from the tail piece by 

accumulations of coal and mud, thereby exposing an area where a miner could have gotten 

caught in the conveyor or a pinch point on the conveyor belt. 

32 FMSHRC Page 678 
The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in consideration of the length of time thatthe violative· condition 

existed prior to the citation and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co;,/nc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S'must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); . 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

Third, I find that there is more than a reasonable likelihood that the hazard described will 

result in an injury. As discussed above, the guards were-inadequately secured, with some of the 

guards having been loosely hung by rusty tie wire, as opposed to chains; The danger in such a 

situation is that a miner could fall into the unsecured guards which, given their unsecure nature, ·. 

would not prevent the miner from coming into contact with moving machinery of the tail piece. 

If a miner were to come into contact with the moving machinery, in this case a tail pulley or 

moving conveyor belt, they could be caught in the conveyor or a pinch point on the conveyor 

belt. While improperly secured guards may in some instances present all that is needed to find a 

violation to be S&S, here, the situation is exacerbated by the condition ofthe area in which the 

inadequate guards were located. The mud and coal accumulations, slick water line, and narrow 

walkway around the sump presented a serious slip and fall hazard. 

I credit Inspector Moore's testimony that, had he not utilized a sounding rod to probe the 

depth of the sump as he carefully traveled around the end of the tail piece during his inspection,· 

he very well could have "stepped o_ff into [the sump] and grabbed a guard" as he fell. (Tr. 61). 

As further evidence of the slip and fall hazard and the likelihood of injury, I note Courtney's fall 

into the sump. Courtney, a shift manager at the time the order was issued and an individual who 

would presumably have knowledge of the sump at the end of the conveyor in question, slipped 

while traveling around the tail piece and, while falling into the sump, grabbed the end of one of 

the guards that happened to be hung by a chain. Had he grabbed an end that was hung by rusty 

tie wire, the tie wire would not have held his weight and he would have fallen into the tail pulley 

machinery. While the conveyor was off at the time Courtney fell, assuming normal mining 

32 FMSHRC Page 679 
operations, the conveyor would have been on when other miners were examining or passing 

through the area. Even if the area was not frequented by a large number of miners per day, the 

hazardous conditions presented by slip, trip and fall hazards made it highly likely that any 

individual traveling around the tail piece would fall into the unsecured guarding and, in turn, 

come in contact with the moving machinery of the tail piece. I further credit Inspector Moore's 

testimony that the ribbed tail roller increases the hazard and potential for injury. (Tr. 61-61). 

According to Moore, ribbed rollers, as opposed to smooth rollers, are much more difficult to 

break free from once an individual becomes entangled. 

Fourth, I find that it is reasonably likely that an injury sustained as a result of the hazard 

presented would be of a reasonably serious nature. I credit Moore's testimony that accidents in 

which miners are caught in the pinch points of machinery often result in the loss of fingers, arms 

or other appendages, and can result in the death of a miner. (Tr. 61). 

Moore testified that, in his experience, the subject violation was certainly S&S. Black 

Beauty argues that it is unlikely that a miner will be in a position to get caught in the conveyor. 

Specifically, it argues that belt examiners are the only individuals who would be in the area 

while the belt was in operation, and the only other miners likely to be in the area, maintenance. 

people, would de-energiz~ the conveyor before beginning work near the tail piece. While there 

may be limited exposure, I credit the inspector's testimony and find that the unsecure guarding, 

combined with the trip and fall hazard and the fact that examiners would be in the area at least 

once per shift, make it more than reasonably likely that an injury would occur and that the injury 

would of a reasonably serious nature. Further, I find that only one person would be affected by 

this condition, given that it is unlikely that. two people would be in the area and fall in into the 

conveyor simultaneously. For the above reasons, I affirm the citation as written with regard to 

the Secretary's S&S and gravity findings. 

3. Unwarrantable Failure and Negligence 

The term "unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

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

"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the · 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts were necessary for compliance, the operator's efforts in abating the 

violative condition, whether the violation was obvious or posed a high degree of danger and the 

operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 

588, 593 (June 2001 ). 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. 

In order to conduct an appropriate analysis of the aggravating factors, it is important to 

consider the context in which the order was issued, specifically those events that occurred prior 

32 FMSHRC Page 680 
to the date the order was issued. Moore testified that in January of 2008 he traveled to Black 

Beauty's Air Quality #1 Mine to conduct a routine inspection. (Tr. 44). During the course of the 

inspection, Moore issued a number of citations for conveyor belt guarding violations, including 

violations for unsecure guards. (Tr. 47). On January 28, 2008, Moore informed Marty Wade, a 

Black Beauty employee, that many of the conveyor guards were unacceptable and could 

contribute to miners being injured. (Tr. 48). The following day, Moore had additional 

discussions concerning the guarding with Ro~ Madlem, Rick Kerry, Gary Campbell, Terry 

Courtney, Brandon Flath; and Chris Robinson. (Tr. 48-50). At some point during the days 

following the discussions, Moore and members of Black Beauty management created a list of the 

conveyors at the mine. (Tr. 49). Moore testified that he struck an agreement with Black Beauty 

management that the mine would, at the rate of one conveyor per day, examine and make 

necessary repairs to the guards on each of the 25 to 26 conveyor belts at the mine. (Tr. 49-50). 

Courtney testified that he was aware of the list of belts that required guarding repairs, but he was 

not aware that the use of tie wire was problematic. (Tr. 117). According to Moore, Brandon 

Flath, who was in charge of the belt crew, told Moore that after the meeting he, along with a 

group of other Black Beauty employees, had examined the belts and prioritized the conveyor 

drives that needed the most work on their guarding. (Tr. 50-51 ). Flath testified that the belts 

were not addressed in order of priority, but rather by starting in one area and then working across 

the mine. (Tr. 129). Flath testified each drive had approximately 17 sheets of guarding, and that 

to redo the guarding on a drive he would have to fabricate components and build new hangers. 

(Tr. 122-123). 

Flath testified that he was aware of the list and that Moore didn't want to see tie wire 

attached anywhere on the guards; however he never informed the belt examiners of Moore's 

problem with tie wire. (Tr. 120-121, 130-131). Kiefer, an examiner, testified that he was not 

aware of the list, but that he had heard that Inspector Moore had a problem with the way the 

guarding was affixed to the conveyors. (Tr. 141). Ronald Madlem, a safety supervisor at the 

mine, testified that he was aware of the list and fuspector Moore's concern with using tie wire. 

(Tr. 145). Flath further testified that, in spite of the list, he never committed to 

examining/repairing one conveyor per day. (Tr. 123). When questioned regarding his response 

to Moore's proposed plan Flath stated "I didn't say I couldn't do it. ... I didn't think it was 

possible, ... (but] I didn't say, no, that's impossible, we can't do that. I'm not going to do that. 

I just-you know, okay." (Tr. 130). Flath testified that he only committed to doing his best. 

(Tr. 123). 

Moore noted in his testimony that many of the conveyors did not need actual work or 

repairs, and could have easily been checked off after a quick examination. (Tr. 49). However, 

he noted, while many of the guards were well constructed, it was the method of hanging and 

securing those guards that was unacceptable and needed to be addressed. (Tr. 49-50). 

Specifically, Moore cited the unacceptability of using tie wire to hang guards. (Tr. 50). Moore 

testified that in the weeks and days following the meeting he noticed that the agreed to 

examination/repair schedule was not being adhered to. (Tr. 52). According to Flath, the 

guarding of only five or six belts had been examined/repaired as of March 4th, the day the subject 

order was issued. (Tr. 124). Moore testified that on March 61

\ two days after the order was 

32 FMSHRC Page 681 
issued, he spoke to Brandon Flath, who told Moore that the mine was working on the guarding 

but that they had fallen behind schedule. (Tr. 78). 

I credit Moore's testimony with regard to the agreement that was reached and Black 

Beauty's subsequent failure to abide by that agreement. Further, I find that the agreement not 

only put Black Beauty on notice that greater efforts were required for compliance, but also 

expressly set out what was required for compliance. fo spite of that notice, Black Beauty failed 

to make a reasonable effort to repair the guards which, in turn, resulted in the subject order. 

fo addition, I find that the violative condition existed for an extended period of time and, 

while some effort was made to abate the violation, it was minimal at best. The condition existed 

during Moore's January 28th inspection, and had not been abated prior to the March 4t1t 

inspection during which the order was issued. The mine had indicated to the inspector that it 

would repair the guards on one conveyor each day. I was not persuaded by Flath's testimony 

that he was diligently working on the guards or that he did not commit to repairing one conveyor 

per day. I credit Moore's testimony that Black Beauty was not fulfilling its end of the bargain, 

and, in doing so, allowed the violative condition, which I have found to be of an S&S nature, to 

exist for over a month. The violative condition took five hours to abate. That time included 

cleaning the area, fabricating the appropriate guarding, and securely attaching the guarding. . 

This particular drive required a great deal more work than many of the other drives, yet its 

condition was corrected in approximately five hours: 25 to 26 days was more than enough time 

to repair the guarding on the conveyors at the mine, regardless of any agreed to schedule, yet 

Black Beauty failed to do so. In fact, the only step taken by Black Beauty to abate the violative 

condition was to place the 2MW belt on the list of belts that needed to be examined. 

I find that the violative condition was obvious. I credit fospector Moore's testimony that 

the condition was obvious and immediately noticeable when he entered the area. The guards 

were hung at ,Some points by rusty tie wire, which was described as being approximately the 

same thickness as a clothing hanger. fo addition, the guards were capable of being easily moved 

with the application of minimal pressure. Further, the guards had been pushed away from the 

tail piece by a pile of accumulations. Such conditions are very obvious and should have been 

easily noticed by Black Beauty's examiners. 

Black Beauty avers that it has used the same guarding practices for years without issue. 

While this may be true, it stands to reason that guarding systems deteriorate over time and must 

be repaired. fo this case, it appears that stop-gap repairs were made in lieu of more permanent 

fixes. As mentioned above, the condition was obvious, and therefore should have been addressed 

by Black Beauty regardless of whether it had been cited in the past. 

Moore testified that the mine had received approximately 33 violations related to 

guarding since May 2006 and he, personally, had issued 17 violations for guarding since July 

2007. Management was notified in several meetings with Moore that there was a serious 

problem with the guarding systems. Ample time was given to the belt boss and the shift 

managers to conduct the inspections and make corrections. The mine had a recent history of 

guarding violations, and was on notice of the need to comply. Jn spite of that, the serious lack 

32 FMSHRC Page 682 
of reasonable care exhibited by management resulted in continued guarding violations, including 

the one at issue, and clearly amounts to aggravated conduct constituting more than ordinary 

negligence. For the above reasons, I find that Black Beauty has unwarrantably failed to comply 

with the mandatory standard and I affirm the Secretary's high negligence finding. 

b. Remaining nineteen citations. 

The parties entered into a stipulation at hearing regarding the remaining 19 violations in 

this docket. The Secretary agreed to modify Citation Nos. 4263729, 4263730, 6669996, 

6670742, 6670747, 6681052, 6681084, 6681086 and 6682005 to non-S&S violations and to 

remove the unwarrantable designation from Citation No. 6678358. The parties agteed that the 

Respondent will pay the penalty as assessed for Citation Nos. 6669994 and 6682100 and that the 

Secretary will reduce the remaining violations, primarily be modifying the level of negligence. 

The entire docket was originally assessed at $317,405.00 with $60,000.00 of that amount 

assessed to the Order that was tried, leaving $257,405.00 for the citations that are settled. The 

Respondent has agreed to pay $71,518.00 of that amount. 

There was a discussion on the record about the settlement and the details of the 

modification of each alleged violation are set forth in the transcript. The discussfon revolved 

around the reasons for this particular settlement and other recent settlement motions that have · 

been filed concerning this mine operator. I am reluctant to approve a settlement that has such a· 

drastic reduction in penalty and so many modifications to the citations. However, given the 

representations of the parties and a review of the file, I find that the proposed settlement is 

appropriate and the Motion to Approve the Settlement is GRANTED. 

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 11 O(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 Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties, 

the Commission [ ALJ] shall consider" six statutory penalty criteria: 

[I] 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). 

32 FMSHRC Page 683 
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), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the 

statutory criteria have been made, a judge's penalty assessment for a particular violation is an 

exercise of discretion, which is "bounded by proper consideration of the statutory criteria and the 

deterrent purpose[s] ... [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 

2000). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business. The violations were abated in good faith, and 

no evidence has been presented to the contrary. The history shows a number of violations for 

guarding in the 15 months prior to this order, including the violations discussed above. I find 

that the Secretary has established that the negligence is high for the violation and that the gravity 

determined in the order is accurate. The total proposed penalty of$60,000.00 is appropriate in 

this case, given the statutory criteria. 

Ill.ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a 

penalty of $60,000.00 for the contested order, and ORDER Black Beauty Coal Company to pay 

the Secretary ofLabor the sum of$131,518.00 within 30 days of the date of this decision. 

Distribution: 

R. Peter Nessen, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 

Suite 844, Chicago, IL 60604 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, 

Pittsbur~ PA 15222 

/ksv 

32 FMSHRC Page 684 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

COAL RIVER MINING, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

COAL RIVER MINING, LLC, 

Respondent. 

June 18, 2010 

· CONTEST PROCEEDINGS 

Docket No. WEV A 2006-125-R 

Citation No. 7249165; 01/30/2006 

Docket No. WEVA 2006-126-R 

Order No. 7249166; 01130/2006 

Docket No. WEVA 2006-127-R 

Order No. 7249167; 01/30/2006 

Docket No. WEV A 2006-128-R 

Order No. 7249168; 01/30/2006 

Tiny Creek No. 2 

Mine ID: 46-08835 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2007:.196 

A.C. No. 46-08835-103740 

Tiny Creek No. 2 Mine 

DECISION ON REMAND 

The Commission remands this matter for reconsideration of whether the violation of 30 

C.F.R. §75.340(a), set forth in Citation No. 7249165, was the result of an unwarrantable failure 

on the part of Coal River Mining, LLC ("Coal River"). The Commission also orders 

reconsideration of Coal River's level of negligence and of the penalty assessed for the violation. 

32 FMSHRC 82 (February, 2010). 

The Commission's decision is pointed and detailed. The Commission explains the 

concept of unwarrantable failure and the relevant factors a judge must consider when 

32 FMSHRC Page 685 
determining the issue. 32 FMSHRC 88-89. The Commission instructs me to reconsider the 

unwarrantable failure issue in light of the factors. 

Following the remand, I ordered counsels to explore settlement of the matter. If they 

could not agree to a settlement, I ordered them to submit briefs addressing the unwarrantable 

issue. The settlement discussions proved futile, and the briefs were received.1 In view of the 

Commission's instructions, I find that the violation was the result of Coal River's unwarrantable 

failure to comply with the standard. 

In the underlying decision, I concluded that the violation of section 75.340(a) occurred 

because, as the Secretary charged, the scoop charger located at Spad No.1965 was neither 

provided with a fire suppression system nor housed in a proper area. It was the practice at the 

mine to meet the standard's requirements either by charging a scoop's batteries on the scoop or, 

if batteries are charged off of the scoop, by applying Pryo-Chem to the ribs of the area were the 

batteries were charged. In this particular instance, the scoop's batteries were charged on the 

floor, off of the scoop, and Pyro-Chem was not applied to the ribs. Therefore, I found that the 

company violated section 75.340(a). 31 FMSHRC at 206-206. 

Although I concluded that the company intended to apply Pyro Chem to the ribs, the 

procedure was not carried out, despite the instructions of the Superintendent. 37 FMSRHC at 

207. The Secretary points out that it was the practice at the mine, if batteries were charged on the 

ground, to Pyro-Chem the ribs. Mine managers knew this. They also knew Pyro-Chem had not 

been applied to the ribs because the Pyro-Chem was stored on the surface and, because it was 

January, the Pyro-Chem was frozen. Management did not take any action to provide other PyroChem or to make sure batteries were not charged on the ground. In order words, management 

knew of the violation but did not prevent it. 

In addition, the record establishes that the violation existed long enough that it should 

have been reported by the pre-shift examiners, and it was not. Although the application of rock 

dust to the walls made the lack of Pyro-Chem difficult to detect (see 31 FMSHRC at 208), a 

proper examination would have revealed that it was missing. 

Moreover, given the fact that the lack of fire proofing on the walls of the charging station 

could have resulted in the fire endangering eight or nine miners (31 FMSHRC 206-207), mine 

management was under a heightened standard of care to prevent such a hazard. Management did 

not meet this duty. 

1 Counsel for Coal River also filed an unsolicited Supplemental Decision. Counsel for the 

Secretary moved to strike the Supplemental Decision on the grounds that it was neither requested nor was 

permission given to file it. Counsel for the Secretary is right on both counts, and the motion IS 

GRANTED. In reaching this Decision on Remand the Supplemental Decision has not been considered. 

32 FMSHRC Page 686 
Given these factors and given the Commission's explicit and implicit instructions, I 

conclude the violation of section 75.340(a) set forth in Citation No. 7249165 was the result of the 

company's unwarrantable failure to comply with the standard. I further find the violation was the 

result of the company's high negligence. Managers knew the walls were not coated with PyroChem and they did not ensure the defect was correct even in view of the serious hazard posed by 

the violation. In view of findings I made with regard to other applicable civil penalty criteri~ 

findings that were not disturbed on review, I conclude that a civil penalty of$4,000.00 is 

appropriate and Coal River IS ORDERED to pay this amount for the violation. 2 

Upon compliance with the Order set forth at 31 FMSHRC 2117-218 as modified in n. 2, 

infr~ these proceedings ARE DISMISSED. 

Distribution: (Certified) 

__j)vv; cl£ tfu /, 

DavidF. Bar~~ Administrative Law Judge 

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 

22°d Floor, Arlington, VA 22209 

F. Thomas Rubenstein, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Boulevard, Suite 310, 

Morgantown, WV 26501 

/crp 

2 Since the only parts of the underlying decision vacated on review were the unwarrantable 

failure and negligence findings made in connection with Citation No. 7249165 and the civil penalty 

assessed for the violation (27 FMSRHC at 99), the Order entered in the underlying decision is modified 

to increase the total civil penalty due for all of the violations to $14,000.00 and to delete the instruction 

to the Secretary to modify the inspector's negligence finding on Citation No. 7249165 from "high" to 

"moderate." 

32 FMSHRC Page 687 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

June 29, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHELTON BROTHERS ENTERPRISES, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-1407 

A.C. No. 15-15978-148474 

Martin Plant 

AMENDED DECISION APPROVING SETTLEMENT 

Before: Judge Feldman 

The captioned matter is before me based upon a petition for assessment of civil penalty 

filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 197T(the Act). 

30 U.S.C. § 815(b). The Secretary filed a motion to approve a settlement agreement and to 

dismiss this civil penalty proceeding. A Decision approving the parties' settlement terms was 

issued on April 22, 2010. The settlement terms included the respondent's agreement to pay a 

reduced civil penalty of $1,050.00 instead of the $1,500.00 initially proposed. The Decision 

Approving Settlement required the respondent to pay the civil penalty within 30 days. 

On or about May 24, 2010, when the 30 day period after the Decision approving 

settlement had expired, the respondent telephoned my law clerk to request a twelve month 

payment schedule for the $1,050.00. It is unclear whether the respondent's telephone request 

occurred several days before or several days after May 24, 2010, as the date of the telephone 

contact was not recorded. What is clear is that the respondent had telephoned my secretary with 

a similar request several days prior to telephoning my law clerk. After speaking to my law clerk, 

the respondent was requested to submit its request in writing. The respondent's request for a 

twelve month payment schedule was filed by facsimile on June 1, 2010. 

Upon receiving the respondent's request, my law clerk telephoned counsel for the 

Secretary to .determine if there was any opposition. On June 17, 2010, the Secretary filed a 

motion to oppose the respondent's motion for a payment schedule. The Secretary's opposition is 

based on her assertion that my Decision ordering the respondent to pay the entire $1,050.00 

penalty within 30 days has become final thirty days after its issuance. 

32 FMSHRC Page 68.8 
As a threshold matter, the April 22, 2010, Decision Approving Settlement noted that this 

case would not be dismissed until timely payment of the entire $1,050.00 civil penalty was 

received. Consequently, I still retain jurisdiction in this matter. Moreover, the respondent's 

initial contact with my secretary occurred less than 30 days after the settlement decision was . 

issued, and the telephone contact with my law clerk occurred shortly thereafter. Accordingly, the 

retention of my jurisdiction notwithstanding, the respondent's motion to reopen is timely even if 

the April 22, 2010, Decision were to become final after 30 days. 

Finally, the request to pay the civil penalty in monthly installments rather than in its 

entirety is procedural rather than substantive. Consequently, approving the twelve month 

payment schedule does not substantively alter the terms of the parties' settlement agreement. 

Significantly, the Secretary does not contend that the respondent's proffered twelve month 

payment schedule is unreasonable. 

In view of the above, the respondent's motion to pay the $1,050.00 civil penalty in twelve 

monthly installments IS GRANTED. Consequently, IT IS ORDERED that the respondent pay 

$87.50 per month, for a total of twelve (12) months until the total proposed penalty of$1,050.00 

is received. Payment is to be made on the first of each month for twelve consecutive months 

beginning on September l, 2010. IT IS FURTHER ORDERED, that if anyone of the 

respondent's monthly payments is more than ten days late, the remaining sum of the initially 

proposed $1,500.00 civil penalty shall become immediately due and payable. Upon timely 

receipt of the $1,050.00 civil penalty, the captioned civil penalty proceeding IS DISMISSED. 

Distribution: 

<"~$ J 

Jerold Feldman 

Administrative Law Judge 

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Steve Shelton, Owner, Shelton Brothers Enterprises, Inc., 137 Thompson Drive, 

Prestonsburg, KY 41653 

/rps 

32 FMSHRC Page 689 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

V. 

MANALAPAN MINING CO., INC., 

Respondent 

June 30, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-737 

A.C. No. 15-18267-144079 

RB No. 10 Mine 

DECISION 

Appearances: Uche N. Egemonye, Esq., Carmen L. Alexander, Esq., Office of the Solicitor, 

U.S. Department of Labor, MSHA, Atlanta, Georgia, for the Petitioner; 

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True 

Lexington, Kentucky, for the Respondent. 

Before: Judge Feldman 

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed 

on May 15, 2008, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 

("Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, Manalapan 

Mining Company, Inc. ("Manalapan"). The petition initially sought to impose a total civil 

penalty of $833,600.00 for four alleged "flagrant" violations of the mandatory safety standard 

contained in section 75.400,30 C.F.R. § 75.400, of the Secretary's regulations. 1 Section 75.400 

prohibits accumulations of combustible coal dust and loose coal in active workings in 

underground coal mines. The violations were cited as a result of an October 2, 2007, mine 

inspection. 

1 Section 110( 4)(b )(1) of the Mine Act as amended by the Mine Improvement and New 

Emergency Response Act of2006 ("MINER Act"), 30 U.S.C. § 820(4)(b)(l), provides that a 

mine operator committing a violation deemed to be "flagrant" may be assessed a civil penalty of 

not more than $220,000. Section l 10(4)(b)(l) defines "flagrant" as" ... a reckless or repeated 

failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health 

standard that substantially and proximately caused, or reasonably could have been expected to 

cause, death or serious bodily injury." 

32 FMSHRC Page 690 
On November 3, 2009, the Secretary filed what I construe as an amendment to the 

May 15, 2008, civil penalty petition removing the "flagrant or reckless disregard" charge for the 

104(d) citation and three 104(d) orders that are the subject of this proceeding. In addition, 

the Secretary reduced the total proposed penalty from $833,600.00 to $240,000.00 to conform 

with the maximum civil penalty of $60,000.00 for each of the four alleged combustible 

accumulation violations that the Secretary asserts is attributable to Manalapan's unwarrantable 

failure. (Letter from Dana L. Ferguson, Esq., to John M. Williams, Esq., October 30, 2009). 

This matter was heard on January 12 and January 13, 2010, in Richmond, Kentucky. 

The parties' post-hearing briefs and replies are of record and have been considered in this 

disposition. 

I. Statement of the Case 

Manalapan's RB No. 10 mine, currently inactive, is an extremely wet underground coal 

mine. Consequently, mine floor conditions in October 2007 were unusually muddy. This matter 

concerns a combination of coal accumulations and mud, not well defined by the Secretary, along 

a series of four underground conveyor belts. The extracted material was transferred, in turn, 

from the No. 4 belt at the face to the No. 1 belt nearest the surface. The extracted material, 

consisted of approximately thirty percent coal and seventy percent rock and clay. 

The material carried on the belts was extremely wet and muddy for several reasons. 

The primary reason was the pan on the continuous miner scooped mud from the mine floor and 

transferred the mud, along with the extracted material,·to the belt haulage system. Water from 

dust suppression sprays at the face also progressively accumulated as the water was transferred 

from the head drive to the tailpiece of each belt. Thus, the material on, and the accumulations 

around, each beJt became more diluted as the material was conveyed outby. 

Consequently, although the accumulations were extensive in nature, they were 

predominantly a slurry mixture of coal and muddy clay, particularly as the material was carried 

outby from the No. 2 belt for transfer to the No. 1 belt. As a result, the combustible hazard posed 

· by the cited accumulations was greater closer to the face and dissipated by way of dilution as the 

material was transported outby from belt to belt. For example, the issuing inspector considered 

the cited conditions along the No. 2 belt to be a "borderline" violation, and the accumulations 

along the No. 1 belt were so muddy that they could not be handled because they ran through the 

fingers. Accordingly, the 104( d) citation and three 104( d) orders in issue shall be affirmed, 

modified or vacated based upon the proximity of the cited conditions to the working face. 

II. Findinus of Fact 

On October 2, 2007, Mine Safety and Health Administration ("MSHA") Coal Mine 

Inspector Dannie Lewis inspected Manalapan's RB No. 10 underground mine located in 

Pathfork, Kentucky. The mine had one production day shift that began at 6:00 a.m. and 

32 FMSHRC Page 691 
ended at 4:00 p.m. (Tr. 320). There was no second shift after production ceased at 4:00 p.m. 

(Tr. 315). The third shift was a maintenance shift that operated from 9:00 p.m. until 5:00 a.m. 

(Tr. 320). Mining operations began in 2000 and continued until the mine was closed in 2008. 

(Tr. 222, 248). The coal seam height underground varied from approximately 5Yz to 3Yz feet. 

(Tr. 79-80). Coal was extracted from the working face by a continuous miner. (Tr. 54-55). The 

material extracted from the working face consisted of approximately seventy percent rock and 

clay and thirty percent coal. (Tr. 232). After extraction, the coal along with the extraneous 

material was loaded onto a series of conveyor belts designed to transport it to the surface. 

In October 2007 there were four belts that conveyed the extracted material from the face 

to the surface totaling approximately 2,300 feet. (Resp. Ex. 6; Tr. 223). There were a total of 

approximately 400 top rollers and 200 bottom rollers on the four belts. (Tr. 223). A crawler 

system on wheels acted as a bridge that connected the belt on the continuous miner to the No. 4 

"face" belt. (Tr. 36, 54-55, 323-25). The No. 3 belt, that received the extracted material from the 

No. 4 belt, dumped the material onto the No. 2 belt which, in turn, transferred the material to the 

No. 1 belt. The No. 1 belt transferred the coal outside the mine to a stacker belt on the surface. 

(Tr. 223). 

At the time of the inspection, the RB No. 10 mine was extremelywet with pools of water 

that routinely collected at various locations. (Tr. 226-29). Water entered the mine through 

old works. (Tr. 228-29). In addition, water percolated through the mine floor. (Tr. 226-27). 

This resulted in substantial quantities of mud as the mine floor consisted of a soft shale known 

as "fireclay." (Tr. 230). Additional water accumulated from sprays at the working face. 

(Tr. 228, 335-36). Consequently, despite having water pumps at various locations, the water 

was never completely removed and the mine floor remained muddy at all times. (Tr. 316-17). 

The Secretary admits that it was difficult to control the water in the RB No. 10 mine. 

(Tr. 88-89). 

The muddy-mine floor adversely affected the consistency of the material on the belts. 

David Partin, Manalapan's operations manager, explained, without contradiction, that mud and 

water on the fireclay mine floor accumulated in the pan located beneath the continuous miner as 

the miner was trammed. · (Tr. 229-31 ). This muddy material was transferred from the pan to the 

continuous miner belt system, and, ultimately to the haulage belts. (Tr. 231 ). Lewis conceded 

there was mud on the belt line. (Tr. 153). The wet and muddy conditions worsened from belt to 

belt as the material was transported outby. (Tr. 91, 144, 150, 337). This is because the mud from 

the mine floor, and water from dust suppression sprays at the working face, accumulated at the 

head drive and tailpiece of each belt as the extracted material was dumped at the transfer point. 

(Tr. 59, 74, 76, 77, 189, 228, 231, 323; Resp. Ex. 11). 

At approximately 9:00 a.m. on the morning of October 2, 2007, Lewis began an 

inspection of the RB No. 10 mine. Initially, Lewis reviewed the preshift and onshift examination 

books. Before beginning his inspection, Lewis observed notations entered from August 30 

through October 2, 2007, that, as a general matter, reflected wet and muddy conditions on a daily 

basis along the Nos. 1, 2, 3 and 4 belts. (Resp. Ex. 7). The books noted ''working on" and 

"shoveling" as actions taken to correct the conditions. Id. 

32 FMSHRC Page 692 
Lewis entered the mine. He was accompanied by Mine SuperintendentJoseph Miniard 

and Timothy Carter, an MSHA inspector in training. (Tr. 51 ). The mine had been producing 

coal for approximately two to three hours prior to the beginning of the inspection. {Tr. 318). 

Lewis began his inspection by traveling with Miniard to the working face. (Tr. 317-18). 

After completing his inspection of the face, Lewis traveled outby the conveyor belt entry to 

inspect the belts. The inspection occurred prior to Miniard' s onshift examination when coal had 

been carried on the belts for approximately two to three hours prior to Lewis' arrival on the 

section. (Tr. 318). At that time, four men were assigned to work on the beltline concentrating on 

the conveyor head drives where water and mud had accumulated. (Tr. 329). 

Upon completing his examination of the belts, Lewis traveled to the surface whereupon 

he telephoned his supervisor Jim Langley at the Barbourville office. After consulting with 

Langley, Lewis issued 104(d)(l) Citation No. 7511467 (No. 4 Belt) as well as 104(d)(l} 

Order Nos. 7511472 (No. 3 Belt), 7511478 (No. 2 Belt), arid 7511479 (No. 1 Belt) for violations 

of the mandatory safety standard in section 75.400, 30 C.F.R § 75.400. Lewis designated the 

cited violations as significant and substantial and attributable to Manalapan's unwarrantable 

failure.2 3 

As justification for the unwarrantable failure for all four of the cited violations, Lewis 

noted that Manalapan had been cited for approximately 27 violations of section 75.400 during the 

preceding fifteen months. (Gov. Exs. 1-4). The MSHA Mine Data Retrieval records re.fleet that 

Manalapan was cited for 28 violations of section 75.400 during the 24 months preceding 

Lewis' October 2007 inspection. (Gov. Ex. 8 ). The records also reflect that 11 of the 

28 previous violations were designated as non-significant and substantial. Id. Although the data 

retrieval records proffered by the Secretary do not contain the proposed civil penalty for each 

violation, the information on MSHA's web site reflects the assessed civil penalties ranged from 

$60.00 to $6,06?.00. Only one of the previous 28 combustible material violations was 

attributable to Manalapan's unwarrantable failure. The penalty proposed by the Secretary for 

this violation was $4,800.00. 

Section 75.400, the cited mandatory standard, states: 

Coal dust, including float dust deposited on rock-dusted surfaces, loose coal, and 

other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electrical equipment 

therein. 

2 Generally speaking, a violation is S&S if it is reasonably likely that the hazard contributed 

to by the violation will result in an accident causing serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981). · 

3 A violation of a mandatory safety standard is unwarrantable when the actions of the mine 

operator that resulted in the violation constitute more than ordinary negligence. Emery Mining 

Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). 

32 FMSHRC Page 693 
III. Case Law and Statutory Framework 

A. Significant and Substantial 

As a general proposition, a violation is properly designated as significant and substantial 

("S&S") in nature if, based on the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to by the violation will result in an injury or an 

illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC at 825. 

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

Jn 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 (by the violation] will result in an injury; and 

( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Id. at 3-4; see also Austin Power Inc,, v. Secy of Labor, 861F.2d99, 103-04 (5th Cir. 1988), 

affg 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With rt}spect to the 

third element of Mathies, a significant and substatitial finding requires a determination that 

the violation contributes significantly and substantially to the cause and effect of a hazard. 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984) (emphasis in original). 

Resolution of whether a particular violation of a mandatory standard is S&S in 

nature must be made assuming continued normal mining operations. U.S. Steel Mining Co., 

7 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given to both the time frame 

that a violative condition existed prior to the issuance of a citation, and the time that it would 

have existed if normal mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 

1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). 

B. Unwarrantable Failure 

The elements of unwarrantable conduct are well settled. The Commission has 

determined that unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such 

conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of 

reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 

(Feb. 1991); see also Buck Creek Coal, 52 F.3d 133, 135-36 (71

h Cir. 1995) (approving the 

Commission's unwarrantable failure test). 

32 FMSHRC Page 694 
The Commission examines various factors in detennining whether a violation is · 

unwarrantable, including the magnitude of a violative condition, the length of time that it has 

existed, whether the violation is obvious, whether the violation poses a high degree of danger, 

whether the operator has been placed on notice that greater efforts ate necessary for compliance, 

and the operator's compliance efforts made prior to the issuance of the citation or order. 

EnlowForkMiningCo., 19FMSHRCat 11-12, 17;Mullins&SonsCoalCo., 16FMSHRC 192, 

195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quin/and Coals, 

Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984). 

Repeated similar violations may be relevant to an unwarrantable failure determination to the 

extent that they serve to put an operator on notice that greater efforts are necessary for 

compliance with a standard. Peabody, 14 FMSHRC at 1263-64. 

C. Statutory Civil Penalty Criteria 

The statutory civil penalty criteria are set forth in section l lO(i) of the Act, 30 U.S.C. 

§ 820(i). In determining the appropriate civil penalty to be assessed, section 11 O(i) provides, in 

pertinent part: 

the Commission 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. 

The Commission has noted that the de novo assessment of civil penalties by the 

administrative lc;iw jutlge does not require "that equal weight must be assigned to each of the 

penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHR.:C 1495, 1503 {Sept. 1997). 

Rather, the judge must qualitatively analyze each of the penalty criteria to determine the 

appropriate civil penalty to be assessed. Cantera Green, 22 FMSHRC 616, 625-26 (May 2000). 

IV. Further Findin&s and Conclusions 

A. 104(d)(l) Citation No. 7511467 (No. 4 Belt) 

As previously noted, the first belt Lewis observed was the No. 4 belt that received the 

face material from the continuous miner via the crawler system. (Tr. 54, 58). The approximate 

dimensions of the No. 4 belt were 600 feet long, 4 to 5 feet wide, and, 44 inches above the 

ground. (Tr. 68, 70, 85, 327). The belt entry was 18 to 20 feet wide. (Tr. 67). Facing in an 

inby direction, the right rib was approximately 2Yz to 3 feet to the right of the belt. (Tr. 67). 

The distance from the left rib to the belt varied between 6 and 10 feet. This area to the left of the 

belt served as a travelway. {Tr. 67, 68). 

32 FMSHRC Page 695 
Lewis testified that the material on the No. 4 belt was the driest of the four belts. {Tr. 83, 

87, 337). In this regard, Lewis estimated that sixty to seventy percent of the belt material was 

dry. {Tr. 59). Lewis explained that the wettest conditions on the No. 4 belt existed outby the 

face where the head drive of the No. 4 belt dumped onto the tailpiece of the No. 3 belt. (Tr. 59, 

189, 323). As noted, the water on the belts accumulated at the transfer points between the 

head drives and tailpieces as the material was dumped outby from belt to belt as it was conveyed 

to the surface. (Tr. 59, 74, 76, 231; Resp. Ex. 6). 

Lewis observed loose coal and float dust accumulations underneath, along the side, and 

on the structure of the No. 4 belt. {Tr. 55, 59). The accumulations extended from underneath the 

belt to approximately one foot on each side. The accumulations continued along the entire length 

of the belt. (Tr. 66; Gov. Ex. 1). Using a ruler, Lewis detennined that the accumulations ranged 

from one to eight inches in depth. (Tr. 69, 74). 

Lewis observed at least ten bottom rollers on the No. 4 belt turning in coal fines. 

(Tr. 55, 328). These fines contacted the bottom rollers, which are approximately two to six 

inches off the floor. (Tr. 55, 73). Lewis testified that a few of the rollers were so immersed in 

the coal fines that they could hardly be seen. (Tr. 73, 263). Lewis noted that there were locations 

where the accumulations were rubbing against the bottom belt drying the coal and causing it 

change to a reddish gray color. (Tr. 55, 59, 60, 131). 

Miniard conceded that the No. 4 Belt had dry accumulations and he saw rollers turning in 

these accumulations. (Tr. 352). Specifically, Miniard described accumulations that had fallen 

off the No. 4 belt near the face where the bridge dumped the extracted material from the 

continuous miner onto the tailpiece. (Tr. 325). In terms of the magnitude of the spillage, 

Miniard admitted to four areas of accumulations that were six to eight inches in depth and 

approximately three feet in diameter. (Tr. 327). Brummett also admitted there were areas of coal 

spillage in the vicinity of the tailpiece of the No. 4 belt. {Tr. 258). With respect to 

accumulations in proximity to rollers, Miniard recalled "a couple of rollers" near the face that 

were turning in coal and a couple ofrollers further outby that were turning in mud. (Tr. 328). 

As a result of his observations Lewis issued 104(d)(l) Citation No. 7511467. This 

citation states: 

Loose coal and float coal dust has been allowed to accumulate along side and 

underneath the #4 conveyor belt. When checked these coal accumulations are 

observed to be 1 to 8 inches in depth and extend throughout the entire length of 

this # 4 conveyor belt line. At least 10 bottom rollers are observed to be turning 

in the accumulations. Also the bottom belt is observed rubbing these 

accumulations in various locations along this belt. This condition is oblivious 

[sic] and has been allowed to exist for at least several shifts. These coal 

accumulations are observed to be black and gray in color. According to the mine 

access data base this standard has been cited 27 times at the mine in the previous 

32 FMSHRC Page 696 
15 months. The mine operator has engaged in aggravated conduct by not talcing 

corrective action to prevent accumulations of this severity. This violation is an 

unwarrantable failure to comply with the mandatory standard. 

(Gov. Ex. 1). 

1. Fact of Violation and S&S 

Section 75.400 prohibits coal dust, including float coal dust, and loose coal from 

accumulating in active workings. This mandatory standard seeks to remove the hazard.of 

combustible accumulations fueling or propagating an explosion. Although Miniard and 

Brummett admitted thatthere were areas of dry coal accumulations along the No. 4 belt, the 

Commission has determined that even wet coal accumulations are prohibited by section 75.400 

because they can dry out in a mine fire and ignite. Utah Power & Light Co., 12 FMSHRC 965, 

968-69(May1990) citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 

(Aug. 1985). Moreover, the preshift and onshift books reflect that these accumulations had 

existed for at least several shifts. Consequently, it is clear that the nature and extent of the 

accumulations observed by Lewis along the N~. 4 belt constitute a violation of section 75.400. 

With respect to the issue of S&S, as previously noted, resolution of whether a particular 

violation of a mandatory standard is S&S must be made assuming continued normal mining 

operations. U.S. Steel Mining, 7 FMSHRC at 1130. Thus, the degree of hazard caused by the 

cited violation must be evaluated based on the time the violation existed prior to the issuance of 

the citation as well as the time it would have continued to exist if normal mining operations had 

continued. 

The essence of an S&S violation is whether it is reasonably likely that the hazard 

contributed to by the violation will result in an event in which there are serious or fatal injuries. 

The Commission, as well as Congress, has recognized that accumulations of combustible 

materials constitute hazardous conditions, as any combustible material, when placed in 

suspension, can propagate an explosion. Enlow Fork, 19 FMSHRC at 14, citing S. Rep. No. 411, 

91st Cong., lst, Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, Committee on 

Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the Federal Coal 

Mine Health and Safety Act of 1969, at 191 (1975). The Sago Mine and Upper Big Branch Mine 

tragedies in West Virginia are evidence of the tragic consequences of explosions in underground 

mm es. 

The accumulations observed by Lewis can ignite ifthe bearings on the No. 4 rollers 

malfunctioned. In addition, Lewis observed that a 480 volt cable near the No. 4 belt was a 

possible source of ignition because the cable did not have a stress clamp or bushing. (Tr. 109). 

The cited accumulations could also propagate an explosion if there was an ignition in another 

area of the mine; In either event, it is reasonably likely that a fire or explosion will result in 

serious or fatal injuries. Therefore, the cited violation of section 75.400 in 104(d)(l) 

Citation No. 7511467 is properly designated as S&S. 

32 FMSHRC Page 697 
2. Unwarrantable Failure 

As noted, an unwarrantable determination requires an analysis of the magnitude of a 

violative condition, the length of time that it has existed, whether the violation is obvious, 

whether the violation poses a high degree of danger, whether the operator has been placed on 

notice that greater efforts are necessary for compliance, and the operator's compliance efforts 

made prior to the issuance of the citation or order. The obviousness and magnitude of the 

accumulations along the entire length of the No. 4 belt, the repeated reference to accumulations, 

albeit muddy, in the preshift and onshift books, and the history ofManalapan's previous 

accumulation violations, are aggravating factors. However, these and all other relevant factors 

must be viewed in the context of the factual circumstances of this case and all material facts and 

circumstances must be examined to determine if a mine operator's negligence is mitigated. 

Consolidated Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

I am cognizant that the accumulations cited by Lewis were extensive. Miniard testified 

that it took a whole crew of men, fifteen or eighteen, to clean up the accumulations for the entire 

belt system. (Tr. 346-47, 365). Moreover, the abatement activities were conducted for two 

shifts. (Tr. 347-48). However, the analysis does not stop there. Although extensive in 

magnitude, this case presents the dilemma of distinguishing the nature and extent of combustible 

accumulations at each belt from the totality of accumulations that included significant 

accumulations of inert muddy material. fu other words, while damp or wet coal is considered 

combustible, the concentration of coal in a puddle of water, or, in a muddy suspension, must be 

great enough to constitute a combustible hazard. · 

Thus, resolving the unwarrantable failure issue is a matter of degree. Namely, to what 

extent were the accumulations observed by Lewis at the No. 4 belt combustible in that they posed 

a high degree of danger that warranted a greater standard of care. Significantly, corroborating 

Lewis' testimony, both Miniard and Brummett concede that there were dry accumulations of coal 

near the tailpiece of the No. 4 belt. Moreover, Miniard admits that there were at least several 

bottom rollers turning in dry coal. With respect to wet coal accumulations, on balance, the 

evidence reflects that the significant concentrations of coal, even if wet, posed a high degree of 

danger because the coal deposits could dry out in a mine fire and ignite. Utah Power & Light, 

12 FMSHRC at 968-69. 

When viewed in the context of continuing mining operations, dry combustible 

accumulations in proximity to potential sources of ignition if rollers were to malfunction 

pose a high degree of danger. This conclusion is further supported by the propagation hazard 

posed by these accumulations that can easily be put in suspension by moving belts and rollers. 

Texasgulf, Inc., 10 FMSHRC 498, 501(Apr.1988). Thus, onbalance, the Secretary has satisfied 

her burden of demonstrating that the nature, extent and duration of the prohibited dry 

combustible coal accumulations, and the discrete wet accumulations of coal, along the No. 4 belt 

were attributable to at least a high degree of negligence evidencing an unwarrantable failure. 

32 FMSHRC Page 698 
3. Civil Penalty 

Manalapan is a large mine operator and it has not been contended that the imposition of 

the civil penalties proposed in this matter will effect its ability to continue in business. While the 

history of violations may be viewed as an aggravating factor, and the cited condition is serious in 

gravity, one must not lose sight of the extremely wet mining environment at Manalapan's 

RB No. 10 mine. In this regard, the liquid conditions on the belt, as well as on the mine floor, 

are a mitigating circumstance with respect to the maintenance difficulty of cleaning muddy 

conditions around belts caused by chronic spillover to the extremely wet mine floor below. 

Nevertheless, in the final analysis, Manalapan remains responsible for preventing combustible 

accumulations. The Secretary proposes a civil penalty of $60,000.00. In recognition of the 

muddy conditions as a mitigating factor, a civil penalty of $20,000.00 shall be imposed for 

104(d)(l) Citation No. 7511467. 

B. 104(d)(l) Order No. 7511472 (No. 3 Belt) 

The head drive of the No. 4 belt dumps onto the tailpiece of the No. 3 belt. The No. 3 

belt was approximately 400 feet long. (Tr. 86). After observing the No. 3 belt and consulting 

with his supervisor atthe Barbourville office, Lewis issued 104(d)(l) Order No. 7511472 stating: 

Loose coal and float coal dust has been allowed to accumulate along side and 

underneath the # 3 conveyor belt. These accumulations are observed to be 1 to 9 

inches in depth and extending the entire length of the # 3 conveyor belt. At least 

20 bottom rollers are observed turning in these accumulations and the bottom belt 

is observed rubbing these accumulations in various locations. According to the 

mine access data base this standard has been cited 27 times during the previous 15 

months at this mine. This condition is obvious and has existed for at least several 

shifts. This violation is an unwarrantable failure to comply with a mandatory 

standard. 

(Gov. Ex. 2). (Emphasis added). 

1. Fact of Violation and S&S 

The rub in this case is the term "these accumulations" noted by Lewis in the subject 

104(d)(l) orders. Although the testimony supports significant discrete, dry accumulations along 

the No. 4 belt, the distinction between combustible accumulations and mud becomes 

progressively less clear with regard to the No. 3, No. 2 and No. 1 belts. This is because the 

testimony reflects that increasingly significant amounts of mud and water were transferred 

from the head drive of each belt to the tailpiece of the next belt as the material, which was only 

thirty percent coal, was being conveyed to the surface. 

32 FMSHRC Page 699 
Although 104(d)(l) Order No. 7511472 implies that there was "[l]oose coal and float 

dust" extending along the entire length of the No. 3 belt, the record testimony is, at best, 

equivocal. Miniard characterized the conditions on and along the side of the No. 3 belt as wet 

and muddy. (Tr. 336). In this regard, Miniard testified that there were no dry areas along the belt 

and that the only material along the belt was the mud and water typical of this mine. (Tr. 336). 

Kevin Daniels, a Manalapan belt man, who cleaned up the accumulations to abate the subject 

citation and orders, corroborated Miniard' s testimony. (Tr. 406). Specifically, he characterized 

the conditions at the No. 3 belt as ''wet, muddy and nasty." (Tr. 406). He saw no dry coal along 

the belt. (Tr. 406). Daniels stated that the accumulations were so wet and muddy that they could 

not be shoveled. (Tr. 407). Photographs taken in this area clearly depict extensive areas of mud. 

(Gov. Ex. 6, photos 085 and 086). 

On the other hand, Lewis' testimony, which the Secretary must rely on to satisfy 

her burden of proof, was contradictory. Lewis initially admitted the No. 3 belt was 

"somewhat wetter" than the No. 4 belt. (Tr. 87). However, Lewis later was reticent to admit that 

the conditions at the No. 3 belt were wet and muddy. He initially admitted that the conditions 

were muddy, but denied that the conditions werewet. (Tr. 153). However, at his deposition 

Lewis stated there was a lot of water on the belt. (Tr. 152-54). Lewis initially denied the area 

along the No. 3 belt was wet and slippery. (Tr. 155). However, he ultimately conceded that there 

was enough water on the belt line to make walking difficult. (Tr. 155-56). Finally, Lewis 

admitted that the belt line was covered in mud, water and rock. (Tr. 153-56). Lewis opined that 

although the ''No. 2 [belt] was borderline, No. 3 was not. No. 3 was combustible enough to cite." 

(Tr. 150). 

In sum, although the evidence and photographic exhibits reflect that numerous bottom 

rollers were turning in a liquid mixture, it is difficult to·discern the concentration of combustible 

material contacting the rollers. What is clear is that the areas surrounding the belts became 

progressively'wetter as the material was conveyed outby from the No. 4 belt to the No. 1 belt 

for conveyance to the surface. Section 75.400 requires a mine operator to promptly clean and 

remove combustible materials in active workings. The preshift and onshift books reflect that the 

material surrounding the bottom rollers was present for at least several shifts. Although this 

material was wetter than the material along the No. 4 belt, the testimony supports the conclusion 

that there were sufficient areas of combustible coal accumulations, even if they were wet or 

damp, to constitute a violation of section 75.400. 

With respect to the S&S issue, the considerations regarding the S&S nature of the 

combustible accumulations discussed above with respect to the No. 4 belt are incorporated by 

reference. Having concluded that there was sufficient combustible materials to constitute a 

violation, despite the wet conditions, these accumulations could dry out in the event of a mine 

fire and provide additional fuel for the propagation of an explosion. Utah Power & Light, 

12 FMSHRC at 968-69. In such an event, it is reasonably likely that serious or fatal injuries 

will occur. Consequently, the cited violation in 104(d)(l) Order No. 7511472 was properly 

designated as S&S. 

32 FMSHRC Page 700 
2. Unwarrantable Failure 

The testimony, preshift and onshift books reflect the accumulations along the No. 3 belt 

were present for several shifts, extensive, and contacting numerous rollers. However, it is 

significant that, although the examination books reflect the duration of the accumulations was at 

least several shifts, the accumulations are described as ''wet and muddy'' rather than 

accumulations of coal. (Gov. Ex 7). Thus, the extent to which these references refer to 

combustible accumulations is unclear in that the wet and muddy description accurately describes 

the mine conditions articulated by the witnesses. 

What is clear is that the rollers were turning in a muddy mixture that should have been 

promptly cleaned to maintain proper operation of the rollers: Although the Secretary has been 

given the benefit of the doubt that this muddy composition contained sufficient combustible 

material to warrant a violation of section 75.400, combustible accumulation violations are not 

per se unwarrantable. Given the equivocal nature of Lewis' testimony, the evidence is 

insufficient to demonstrate that this muddy mixture posed the requisite high degree of danger to 

justify unwarrantable failure :findings in this case. In other words, the extremely muddy nature of 

the accumulations is a mitigating factor. Consequently, the failure to promptly remove these 

accumulations does not rise to the level of aggravated conduct. 

In addition, the Secretary relies on the history of 27 violations as an aggravating factor. 

However, forty percent of these violations were designated as non-S&S in nature. Moreover, 

with respect to the issue of notice that greater belt cleanup· efforts were required, not all of these 

accumulation violations concerned conveyor belts. For example, several violations concerned 

float coal dust on electrical boxes and coal dust on a roof bolting machine.4 This history of 

violations, alone, particularly in light of the cited predominantly wet and muddy accumulations 

due to adverse mining conditions, does not provide an adequate basis for an unwarrantable 

failure. 

Although the negligence attributable to Manalapan is moderate to high, Manalapan's 

conduct is not sufficiently aggravated or unjustified to warrant an unwarrantable failure. 

Accordingly, 104(d)(l) Order No. 7511472 shall be modified to a 104(a) citation. 

4 I reach this conclusion from copies of citations issued for section 75.400 violations during the 

relevant 24 month period provided by the Secretary to Manalapan in response to an interrogatory 

request. Although not admitted as exhibits, these documents have probative value as they are 

official records of the Secretary. 

32 FMSHRC Page 701 
3. Civil Penalty 

AB a general matter, application of the facts in this case to section l lO(i) has been 

discussed above with respect to the No. 4 belt. The Secretary proposes a civil penalty of 

$60,000.00. Given the modification of the 104(d)(l) order to a 104(a) citation reflecting that 

Manalapan's conduct was not unwarrantable, and, in view of the muddy conditions as a 

mitigating circumstance, a civil penalty of $12,000.00 shall be imposed for 104(a) Citation 

No. 7511472. 

C. 104(d)(l) Order No. 7511478 (No. 2 Belt) 

The head drive of the No. 3 belt dumps onto the tailpiece of the No. 2 belt. The No. 2 

belt was approximately 500 feet long. (Tr. 86). After observing the No. 2 belt and consulting 

with his supervisor at the Barbourville office, Lewis issued 104(d)(l) Order No. 7511478 stating: 

Loose coal and float coal dust has been allowed to accumulate 

along side and underneath the # 2 conveyor belt. These 

accumulations are observed to be 1to12 inches in depth and 

extending the entire length of the # 2 conveyor belt. At least 10 

bottom rollers are observed turning in these accumulations and the 

bottom belt is observed rubbing these accumulations in various 

locations. According to the mine access data base this standard has 

been cited 27 times during the previous 15 months at this·mine. 

This condition is obvious and has existed for at least several shifts. 

This violation is an unwarrantable failure to comply with a 

mandatory standard. 

(Gov.' Ex._ 3). (Emphasis added). 

1. Fact of Violation and S&S 

Once again the narrative in the 104(d)(l) order is not as it seems. Although 104(d)(l) 

Order No. 7511478 implies that there was "[l]oose coal and float dust" extending along the entire 

length of the No. 2 belt, Lewis admitted there were areas along the No. 2 belt that were ''wet and 

muddy." (Tr. 144). The uncontradicted testimony is that the No. 2 belt was wetter than either 

the No. 4 or No. 3 belts. (Tr. 91, 144, 337). Despite using essentially the same language in the 

citation and orders to describe the conditions at the No. 2, No. 3 and No. 4 belts, at trial Lewis 

admitted the conditions along the No. 2 belt were so wet and muddy that they constituted a 

''borderline situation" as far as a violation was concerned. (Tr. 150-52). 

32 FMSHRC Page 702 
The conclusion that the conditions along the No. 2 belt were wet and muddy is further 

supported by the testimony ofManalapan's witnesses. Miniard testified that there was no 

spillage or piles of coal along the No. 2 belt. {Tr. 337). Stephan Cantrell, a crawler operator 

who worked on the clean up to abate the citations, described the material along the belt as brown 

in color and "pure water and mud." {Tr. 387-88). Cantrell testified the consistency of the 

material on the mine floor was so liquid that it was removed by collecting the material in a 

bucket and dumping the contents onto the No. 2 belt. (Tr. 388). Cantrell's testimony was 

corroborated by Daniels who also cleaned up the No. 2 and No. 3 belts. Daniels testified 

that the material on the No. 2 belt was so runny that it could not be shoveled. {Tr. 409). 

Consistent with the testimony of Cantrell and Daniels, Brummett testified he did not see 

any dry material along the No. 2 belt. {Tr. 265). Contemporaneous photographs of the area 

depict a wet, soupy mixture of mud and water. (Res. Ex; 9)~ Finally, even Lewis admitted that 

he had never seen a fire caused by the wet conditions he observed at the No. 2 belt. (Tr. 189). 

The Secretary has the burden of proving all elements of a cited violation. Garden Creek 

Pocahontas Co., 11FMSHRC2148, 2152 (Nov. 1989). I am cognizant ofManalapan's 

assertion that the concentration of coal accumulations was diluted as the conditions on and 

around the belts became progressively more wet and muddy. However, on balance, Lewis' 

testimony, as well as the entries in the preshift.and onshift books, provide an adequate basis for 

concluding there was sufficient combustible accumulations, although extremely wet, to constitute 

a violation of section 75.400. 

Having concluded a violation occurred, the focus shifts to the question of S&S. 

Lewis testified the violation was at best "borderline." Moreover, Lewis conceded that it was 

unlikely given the degree of wetness and mud, that the cited conditions could cause or contribute 

to a fire or explosion. Thus, the evidence reflects that the hazard posed by this condition is not 

likely to contribute to an event that will cause serious injury. Consequently, the S&S designation 

shall be deleted. 

2. Unwarrantable Failure · 

Having concluded that the cited condition is not S&S in nature, the muddy conditions did 

not pose a high degree of danger tha:t would warrant a higher degree of care. The Secretary's 

assertion that the violation is attributable to aggravated or unjustifiable conduct is inconsistent 

with Lewis' testimony of a ''borderline" violation and his concession that the condition was 

unlikely to contribute to a fire. Rather, the evidence reflects no more than a moderate degree of 

negligence. Accordingly, the evidence does not support an unwarrantable failure. Consequently, 

104(d)(l) Order No. 7511478 is modified to a 104(a) citation to reflect that the cited violation is 

non-S&S in nature and not attributable to an unwarrantable failure. 

32 FMSHRC Page 703 
3. Civil Penalty 

As noted, the penalty criteria in section 11 O(i) has been discussed above. The Secretary 

proposes a civil penalty of$60,000.00. Given the modification of the 104(d)(l) order to reflect 

that the conditions along the No. 2 belt were neither S&S in nature nor attributable to 

Manalapan's unwarrantable failure, a civil penalty of $4,000.00 shall be assessed for 104(a) 

Citation No. 7511478 .. 

D. 104(d)(l) Order No. 7511479 (No. 1 Belt) 

The head drive of the No. 2 belt dumps onto the tailpiece of the No. 1 belt. The No. 1 

belt was approximately 400 feet long. (Tr. 91).· After observing the No. 1 belt and consulting 

with his supervisor at the Barbourville office, Lewis issued 104(d)(l) Order No. 7511479. 

Once again, using the one size fits all approach, 104(d)(l) Order No. 7511479 states: 

Loose coal and float coal dust has been allowed to accumulate along side and 

underneath the # 1 conveyor belt. These accumulations are observed to be l to 15 

inches in depth and extending the entire length of the # 1 conveyor belt. At least 5 

bottom rollers are observed turning in these accumulations and the bottom belt is 

observed rubbing these accumulations in various locations. According to the 

mine access data base this standard has been cited 27 times during the previous 15 

months at this mine. This condition is obvious and has existed for at least several 

shifts. This violation is an unwarrantable failure to comply with a mandatory 

standard. 

(Gov. Ex. 4). (Emphasis added). 

1 .. Fact of Violation 

Although the conditions around the No. 1 belt were the wettest, Lewis' narrative 

description of the alleged violative conditions at the No. 1 belt was essentially the same as his 

narrative descriptions for the areas surrounding the No. 2, No. 3 and No. 4 belts. Although 

104(d)(l) Order No. 7511479 implies that there was "[l]oose coal and float dust" extending 

along the entire length of the No. 1 belt, at trial, Lewis conceded the cited accumulations were· 

wet and soupy in nature. Moreover, Lewis admitted that the cited material was incapable of 

being handled because the material ran through the fingers. {Tr. 142-44). 

On cross-examination, when pressed for why he cited the No. 1 belt given the degree of 

wetness and mud,.Lewis, for the first time, asserted that there were "hundreds or thousands of 

blocks of coal" at the tailpiece that the belt was running in. (Tr. 134-35). Lewis described these 

blocks as the size of small stones that measured one inch by one inch. (Tr. 136). However, 

Lewis admitted these "blocks" of coal were not noted in 104(d)(l) Order No. 7511479, or, in his 

contemporaneous notes taken during the inspection. {Tr. 136-38; Gov. Ex. 5, p.11). 

32 FMSHRC Page 704 
Miniard testified that Lewis did not express any concerns about the conditions around the 

tailpiece of the No. 1 belt. (Tr. 339). To rebut Lewis' recollection of ''blocks" of coal at the 

tailpiece, both Miniard and Cantrell testified that the area around the tailpiece cannot be seen 

from the travelway. (Tr. 339, 387). The only way the tailpiece can be observed is by climbing 

over the belt. (Tr. 387). However, the No. 1 belt was operating at the time of Lewis' inspection. 

(Tr. 184-85). Finally, although Lewis expressed concern about these small blocks of coal 

catching fire, at the trial, Lewis admitted he did not know of any wet conditions comparable to 

those existing at the No. 1 belt ever causing a fire. (Tr. 142-44, 189). 

Lewis' belated testimony regarding small blocks of coal at the tailpiece are not 

corroborated by his description of the alleged violative conditions in 104(d)(l) Order 

No. 7511479, or in his contemporaneous inspection notes. The absence of any relevant 

references in the order and notes supports Miniard' s testimony that Lewis did not express any 

concern about the conditions at the tailpiece during the inspection. Thus, Lewis' testimony 

concerning hazardous combustible material at the tailpiece can be given very little weight. 

Lewis' admissions that the wet and muddy accumulations along the No. l belt were so 

liquid that they were incapable of being handled, and, that the accumulations were unlikely to 

catch fire, undermine the Secretary's alleged section 75.400 violation. If the conditions at the 

No. 2 belt constituted no more than a "borderline" violation, the conditions at the No. 1 belt, 

where even more water and mud had spilled from the belt to the mine floor, did not rise to the 

level of a section 75.400 violation. Accordingly, 104(d)(l) Order No. 7511479 shall be vacated. 

ORDER 

Consiste,nt with this Decision, IT IS ORDERED that 104(d)(l) Citation No. 7511467 

(No. 4 Belt) IS AFFIRMED. 

IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511472 (No. 3 Belt) 

IS MODIFIED to a 104(a) citation. 

IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511478 (No. 2 Belt) 

IS MODIFIED to a 104(a) citation, and, that the significant and substantial designation for the 

cited violative condition IS DELETED. 

IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511479 (No. 1 Belt) 

IS VACATED. 

32 FMSHRC Page 705 
IT IS FURTHER ORDERED that Manalapan Mining Company, Inc., shall pay, 

within 40 days of the date of this decision, a total civil penalty of $36,000.00 in satisfaction of 

104(d)(l) Citation No. 7511467 (No. 4 Belt), 104(a) Citation No. 7511472 (No. 3 Belt), and 

104(a) Citation No. 7511478 (No. 2 Belt). Upon receipt of timely payment, IT IS ORDERED 

that the civil penalty proceeding in KENT 2008-737 IS DISMISSED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge· 

Uche N. Egemonye, Esq., Carmen L. Alexander, Esq., Office of the Solicitor, 

U.S. Department of Labor, 61 Forsyth Street SW, Room TrtO, Atlanta, GA 30303 

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick, & True, PLLC, 

2333 Alumni Park Plaza, Lexington, KY 40517 

/rps 

32 FMSHRC Page 706 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

BILL SIMOLA, employed by 

UNITED TACONITE, LLC, 

Respondent 

May7, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2010-128-M 

A.C. No. 21-03404-201338 A 

United Plant 

Mine ID 21-03404 

ORDER GRANTING RESPONDENT'S MOTION FOR CERTIFICATION OF 

INTERLOCUTORY RULING 

The captioned civil penalty proceeding concerns a i 04( d) citation and a 104( d) order 

issued pursuant to section 1 lO(c) of the Federal Mine Safety and Health Act of 1977 

(the Mine Act), 30 U.S.C. § 820(c), to Bill Simola, as an agent of United Taconite, LLC 

(United Taconite). Section 11 O( c) of the Mine Act provides, in pertinent part: 

Whenever a corporate operator violates a mandatory health or safety 

standard ... , any director, officer, or agent of such corporation who 

knowingly authorized, ordered or carried out such violation, ... shall be 

sμbject to the same civil penalties, fines, and imprisonment that may be 

imposed upon a person under subsections (a) and (d) of this section. 

30 U.S.C. § 820(c) (emphasis added). 

United Taconite is not a traditional corporation. Rather it is a limited liability company 

(LLC) that is organized under the laws of the state of Delaware. It is authorized to operate as a 

business entity based on a Certificate of Formation filed with the Office of the Delaware 

Secretary of State in the Division of Corporation. As a general proposition, a limited liability 

company is a business entity that is taxed as a partnership while benefitting from the personal 

liability protection afforded to the assets of corporate officers. 

Simola moved to dismiss this proceeding on jurisdictional grounds asserting that an agent 

of a limited liability company is not subject to the personal liability provisions of section 110( c ). 

The Secretary opposed Simola's motion. Simola's motion was denied on April 6, 2010. 

32FMSHRC 

32 FMSHRC Page 707 
On April 23, 2009 Simola filed a motion for certification of the April 6, 2010, 

interlocutory ruling. On May 5, 2010, the Secretary filed a motion in opposition to Simola's 

motion for interlocutory review. The Secretary asserts immediate review will not materially 

advance the final disposition of this proceeding. 

Commission Rule 76(a)(l){i) provides that, upon motion of a party, a judge shall 

certify his interlocutory ruling to the Commission if the ruling involves a controlling question 

oflaw and immediate review will materially advance the final disposition of the proceeding. 

29 C.F.R. § 2700.76(a)(l){i). Simola's motion for an interlocutory ruling involves a novel 

controlling question oflaw. Moreover, contrary to the Secretary's assertion, an expeditious 

resolution of this jurisdictional question may materially advance the final disposition of this 

matter. In this regard, interlocutory review may obviate the need for adjudication if it is 

determined that Simo la is not subject to the personal liability provisions of section 110( c) of the 

Mine Act. Consequently, Simola's certification request shall be granted. 

ORDER 

In view of the above, Bill Simola's Motion for Certification under Commission Rule 76 

IS GRANTED. Accordingly, IT IS ORDERED that the question of the applicability of the 

personal liability provisions of section 110( c) to an agent of a mine operator doing business as a 

limited liability company IS CERTIFIED for Commission review. 

u1smout1on: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 

/rps 

32 FMSHRC Page 708 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

ORICA USA, INC., 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ORICA USA, INC., 

Respondent 

May26, 2010 

CONTEST PROCEEDING 

Docket No. YORK 2007-74-RM 

Citation No. 6046560; 06/04/2007 

Mine ID 30-00025 4QM 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 2008-59-M 

A.C. No.30-00025-125567 

Mine: Pattersonville Plant #61 

ORDER DENYING MOTION TO DISMISS OR FOR SUMMARY DECISION 

Before: Judge Lesnick 

Background and Procedural History 

This case arises out of an accident causing injury that occurred on May 4, 2007, and the 

citation issued as a result of the accident. In the civil penalty case, the Secretary of Labor 

("Secretary") is petitioning to assess Orica USA, Inc. ("Orica") a civil penalty of $8,209 for an 

alleged violation of 30 C.F.R. §56.6306(±)(3), a mandatory safety standard requiring that access 

routes to a blast area be guarded or barricaded. 1 The alleged violation is set forth in Citation No. 

6046560, which was issued on June 4, 2007, and contested by Orica. In addition to alleging the 

violation, the Secretary also alleges the violation was a significant and substantial ("S&S") 

contribution to a mine safety hazard and was the result of Orica' s high negligence. 

1 · 30 C.F.R. §56.6306(±): before firing a blast --

(3) All access routes to the blast area shall be guarded or barricaded to 

prevent the passage of persons or vehicles. 

32 FMSHRC Page 709 
Citation No. 6046560 states, in part, as follows: 

On May 4, 2007, the blasting contractor set off a production shot 

in the quarry that resulted in flyrock traveling approximately 526 

feet onto the New York State Thruway 1-90, striking three 

vehicles and resulting in two injuries. The section ofl-90 adjacent 

to the blast site was within the "blast area" and was not guarded 

or barricaded to prevent the passage of persons or vehicles. The 

blaster in charge of the shot engaged in aggravated conduct 

constituting more than ordinary negligence. He knew or had. 

reason to know that conditions including loose rock and minimal 

stemming in drill holes at the blast site created a significant 

hazard or flyrock throughout the blast area. However, he did not 

correct these conditions, stop traffic from passing through the 

blast area, or modify the blast design to reduce the hazard. 

According to MSHA' s Investigation Report, Callanan Industries, Inc. ("Callanan") owns the 

Pattersonville Plant #61, which is a surface crushed stone operation located in Pattersonville, New 

York. Callanan contracted with Orica to design, load, and detonate the blast. On May 4, 2007, the 

shot was laid out by Orica and drilled by Archibald Drilling. Flyrock from the blast traveled 

approximately 526 feet onto the New York State Thruway, I-90, striking three separate vehicles. A 

charter bus traveling west was struck by a rock measuring approximately 16-inches by ~2-inches and 

weighing approximately 100 pounds. The flyrock passed through the roof of the bus and struck a 

teenage passenger. A passenger car traveling east was struck in the driver's side windshield, striking 

the operator in the abdomen. A third vehicle received a broken windshield and dents to the hood. 

On June 16, 2009, counsel for Orica filed a Motion to Dismiss or for Summary Decision. 

The Secretar}r filed her Opposition on October 2, 2009, and Orica thereafter filed its Reply to the 

Secretary's opposition on October 23, 2009.2 

Discussion 

Disrajssal is proper und~r FED.R.CIV.P. 12(b)(6) ifthe pleadings fail ''to state a claim upon 

which relief can be granted."3 Under Commission Rule 67(b ), 29 C.F .R. § 2700.67(b), a motion for 

summary decision shall be granted only if the entire record, including the pleadings, depositions, 

answers to interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as 

to any material fact; and (2) that the moving party is entitled to summary decision as a matter oflaw. 

2 By letter dated October 7, 2009, counsel for Orica notified the Chief Judge that it 

conferred with counsel for the Secretary of Labor and was authorized to represent that the 

Secretary consented to Orica filling a response to the Secretary's opposition by October 23, 2009. 

3 "On any procedural question not regulated by [the Commission• s] Procedural Rules ... the 

Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil 

Procedure ... " 29 C.F.R. §2700.l(b). 

32 FMSHRC Page 710 
Regarding the Secretary, if a non-moving party fails to establish sufficient evidence of an 

essential element to its claim, on which it bears the burden of proof, there is no genuine issue of 

material fact and the moving party is entitled to summary decision. Celotex Corp. v. Catrett, 477 

U.S. 317, 322-23 (1986). However, summary judgment should not be granted unless it is clearly 

shown that a trial is unnecessary. Id. The court is required, in reviewing all of the evidence on the 

record, to draw all reasonable inferences from the underlying facts in the light most favorable to the 

non-moving party. Reves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000). 

Based on my reasons outlined below, I conclude that the case is not entitled to dismissal and 

Orica is not entitled to summary decision as a matter oflaw. 

Orica contends that MSHA does not have jurisdiction to issue the citation atissue because 

the New York State Thruway, on which the accident occurred, is not a "mine" as defined within the 

Federal Mine Safety and Health Act of 1977 ("Mine Act"). Orica argues that MSHA has no 

authority to issue a citation because the access route in question, the New York State Thruway, is 

"public" and not ''private" in that it is owned in the name of the State of New York, and it is 

unlawful for a private person to shut down the Thruway. See Orica USA fuc.' s Motion to Dismiss 

or for Summary Decision ("Motion to Dismiss"), at 8. Orica also claims that the New York State 

Thruway is not "appurtenant" to the mine because it is not dedicated exclusively to the mine' s use, 

it lacks the property interest relationship, and it is neither annexed to nor legally belongs to the mine. 

See Motion to Dismiss at9. Additionally, Orica argues that it did not receive "fair notice required 

by the Due Process Clause of the Fifth Amendment to the Constitution that it would be expected to 

guard or barricade the New York State Thruway." See Motion to Dismiss at 10. 

The Secretary responds that MSHA's authority to issue the citation does not stem from the · 

fact that the :flyrock struck several vehicles on a "private way[] [or] road appurtenant to" the "area 

ofland from whlch minerals are extracted," but, rather, from the fact that Orica controlled the extent 

and contours of the ''blast area" where flyrock from the blast would land. See Secretary of Labor's 

Opposition to Respondent's Motion to Dismiss or for Summary Decision ("Secretary's Opposition"), 

at 2. Orica's failure to take appropriate actions to prevent persons or vehicles from entering the area 

used as a mine while flyrock was present constituted a violation of the Mine Act. See Secretary's 

Opposition at 3. The Secretary further responds that Orica did receive fair notice based on the fact 

that the Mine Act is sufficiently clear on its face. See Secretary's Opposition at 11. 

The Mine Act provides, in pertinent part, that a mine "means ... an area of land from which 

minerals are extracted in nonliquid form ... [and] private ways and roads appurtenant to such area ... " 

30 U.S.C. §802(h)(l) (2008). Additionally, "[b]efore firing a blast ... [a]ll access routes to the blast 

area shall be guarded or barricaded to prevent the passage of person or vehicles." 30 C.F.R. 

§56.6306(f)(3). The term "blast area" is defined as "the area in which ... flying material...may cause 

injury to persons" and is determined by considering various factors. See 30 C.F.R. §56.2. 

32 FMSHRC Page 711 
Orica relies on Secretary of Labor v. Natl. Cement Co. of California, Inc., 494 F.3d 1066 

(2007), to interpret the meaning of "mine" with respect to roadways, and, ultimately, MSHA's 

authority to issue the citation in this case. However, in that case, the mine was cited for failing to 

install berms or guardrails on an access road. Id. at 1071. The citation stemmed from the company's 

failure to keep the mine in compliance with appropriate regulations regarding the access roadway 

conditions. Id. at 1066. The parties disagreed as to whether the road was a "mine" subject to 

MSHA's jurisdiction. fu the case at hand, Orica was cited for failure to keep the mine conditions 

in compliance with appropriate regulations regarding blasting. The reason for the citation stems 

from the conditions at the blast site, which was at the mine, and not from the property ownership or 

conditions at the site of injury where the flyrock landed. The land at the blast site was being used 

in the work of extracting minerals from their natural deposits and therefore, a mine within the 

definition as set forth in the Mine Act. See 30 U.S.C. §802(h)(l)(c) (2008). Because the blast site 

is a "mine," MSHA jurisdiction is appropriate. 

I agree with the Secretary's reasonable interpretation that Orica is not absolved of its duty 

to protect people in the blast area from injury merely because the blast area extended beyond the 

legal property line of the Pattersonville mine. To only include flyrock injuries on roadways that are 

"private" and/or "appurtenant to" a mine would allow blasting operators to escape liability for 

violations of section 56.6306 that result in injuries simply because the injuries occur off of the mine 

property. Accordingly, I find that MSHA's authority and jurisdiction are proper in this case. 

I further find that Orica did receive fair notice as required by Due Process because, as 

discussed above, it is undisputed that the land at the blast site was being used to extract minerals and 

is a "mine" as defined in the Mine Act. Therefore, Orica could reasonably expect that MSHA would 

have jurisdiction over the activities, specifically, blasting, that occur at the mine. The language of 

section 56.6306 is clear and .therefore, Orica had notice of the regulation's blasting requirements. 

For all the foregoing reasons, I find that Orica is not entitled to summary decision as a matter 

oflaw. Accordingly, the Motion to Dismiss is denied. Moreover, because all of the material facts 

pertaining to the factors considered in determining the boundaries of the blasting area .and whether 

Orica considered and employed these factors have not been deemed admitted, nor discussed, there 

are genuine factual issues left to be resolved. 

ORDER 

Th=fore, Ori~'s Motion ro llismIBs or f~=I :• T_~ 

Robert J. Lesnick 

Chief Administrative Law Judge 

32 FMSHRC Page 712 
Distribution: 

Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, 

Room 983, New York, New York, 10014 

James A. Lastowka, Esq. & Arthur G. Sapper, Esq., McDermott Will & Emery LLP, 600 13th 

Street, N.W., Washington, DC 20005-3096 

lac 

32 FMSHRC Page 713 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

U.S. CUSTOM HOUSE 

72119TH STREET, SUITE443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

BLACK BEAUTY COAL COMP ANY, 

Respondent 

June 7, 2010 

CNIL PENALTY PROCEEDlNGS 

Docket No. LAKE 2008-327 

A.C. No. 12-02010-143641 

Docket No. LAKE 2008-590 

A.C. No. 12-02010-157123-01 

Docket No. LAKE 2009-224 

A.C. No. 12-02010-171751-02 

Mine: Air Quality #1 

ORDER GRANTING THE SECRETARY'S UNOPPOSED MOTION FOR 

CERTIFICATION FOR INTERLOCUTORY REVIEW, 

ORDER GRANTING THE SECRETARY'S UNOPPOSED MOTION FOR 

CONTINUANCE OF HEARING, 

AND ORDER STAYING PROCEEDINGS 

These cases are before me on petitions for assessment of civil penalty filed by the 

Secretary of Labor ("Secretary"), acting through the Mine Safety and Health Administration 

("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et. seq., (the "Act"). On February 1, 2010, the Secretary filed Motions to Approve 

Settlement and Dismiss Proceedings in Docket Nos. LAKE 2008-327 and LAKE 2008-590. On 

March 16, 2010, I issued two orders denying the Secretary's request to settle the respective 

dockets based upon the lack of adequate information necessary to address the six penalty criteria 

and because the drastically reduced penalties proposed by the Secretary would not adequately 

effectuate the deterrent purpose underlying the act. Subsequently, the Secretary filed a Motion 

for Reconsideration, as well as an Amended Motion for Reconsideration, for each of the two 

dockets. On May 7, 2010, I issued an order denying the Motion for Reconsideration and 

Amended Motion for Reconsideration in both dockets and restated that the proposed settlement 

motions contained insufficient evidence to determine what penalty should be appropriately 

assessed. In addition, on April 19, 2010, the Secretary filed a Motion to Approve Settlement and 

Dismiss Proceedings in Docket No. LAKE 2009-224. I subsequently denied the Secretary's 

settlement motion on the basis that there was not enough evidence to justify the penalties as 

proposed for settlement; in this case a reduction in penalty by more than 80% of the original 

32 FMSHRC Page 714 
proposal. On May 26, 2010, the Secretary filed an Unopposed Motion for Certification for 

Interlocutory Review and for Continuance of Hearing ("Sec'y First Mot.") for all three dockets. 

The three captioned dockets are currently set for hearing on June 16, 2010 on the issue of the 

appropriate penalty to be assessed in each case: For reasons set forth below, I GRANT the 

Secretary's Motion for Certification for Interlocutory Review. Further I GRANT the 

Secretary's Motion for Continuance of Hearing and STAY these matters until further notice. 

The Commission's ProceduralRules state that "[i]nterlocutory review by the 

Commission shall not be a matter of right but of the sound discretion of the Commission." 29 

C.F.R. § 2700.76(a). Interlocutory review "cannot be granted unless ... [t]he Judge has 

certified, upon ... the motion of a party, that [her] interlocutory ruling involves a controlling 

question oflaw and that in [her] opinion immediate review will materially advance the final 

disposition of the proceeding." Id. at§ 2700.76(a)(l)(i). 

The Secretary, with little elaboration, alleges that the denial of the settlement motions 

involves a controlling question of law and immediate review will materially advance the final 

disposition of the proceeding. I agree that there is little~ if any, legal authority regarding the 

denial of a settlement agreement, and particularly authority that relates to the requirements an 

administrative law judge may impose on parties in reviewing a proposed settlement, and 

therefore a controlling question of law is raised. I further find that an immediate review will 

materially advance the final disposition of the proceeding. 

The Secretary makes the same argument for certification in all three dockets and asserts 

the following three controlling questions of law: 

(i) [W]hether, in a settlement context just as in an enforcement 

context, the Secretary has unreviewable prosecutorial discretion to 

Ip.odify: (a) a citation from "significant and substantial" ("S&S") 

to non-S&S, and (b) a Section 104( d) citation or order to a Section 

104(a) citation or order; 

(ii) whether, in considering a proposed settlement agreement under 

Section 11 O(k), an ALJ may require the Secretary to submit factual 

findings and documentation addressing the six factors listed in 

Section 11 O(i) for assessing a penalty, even though Section 11 O(i) 

expressly states that the Secretary "shall not be required to make 

findings of fact" concerning those six factors; and 

(iii) whether the ALJ impennissibly relied on her finding that the 

proposed settlement would encourage operators to contest future 

citations, orders, and penalty assessments. 

Sec'y First Mot. 2; Sec'y Second Mot. 2. Further, the Secretary asserts that Commission review 

of the three controlling questions of law will materially advance the disposition of these 

proceedings by rendering the scheduled hearing unnecessary ifthe Commission were to·reverse 

my denial of the settlement motions in the respective dockets. Id. 

32 FMSHRC Page 715 
I agree that there is a controlling question oflaw, but I do not agree to the questions as 

posed by the Secretary. Instead, the issue before me is whether or not the Secretary must 

provide sufficient facts and information to justify the proposed penalty in the context of a 

settlement and in terms of the six statutory criteria found at section 11 O(i) of the Act. Since the 

Mine Act requires the Commission to assess all penalties and in doing so, consider the six 

criteria, it follows that the Commission must have the information needed to make the 

assessment. The Secretary argues that she is not required to submit such information to the 

Commission and therefore appeals the order issued requiring the submission of facts that relate 

to the penalty criteria. Whether the Secretary must provide information is a controlling question 

oflaw in resolving the many cases that are proposed for settlement and is an important matter to 

resolve before going forward in the three cases at issue here. 

Next, I disagree with the Secretary's assertion that, in two of the settlement denials, I 

impermissibly relied upon a finding that the proposed settlements would encourage operators to 

contest future violations and the associated proposed penalties. The argument goes beyond the 

notion of future contests and instead relates to the deterrent purposes of the Act. Pursuant to 

Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), discretion in assessing penalties is 

bounded by not only the factors set forth in section 11 O(i), but also by the "deterrent purposes 

underlying the Act's penalty assessment scheme;" The question of whether an administrative 

law judge may extend the six penalty criteria to a discussion of deterrence is a controlling issue 

in these settlement proposals. 

The Secretary is charged with enforcement of the Mine Act. For that reason, I 

understand the importance to her in resolving these controlling questions of law. Based upon my 

review of Commission precedent, these cases present issues of first impression. I find that these 

are controlling questions of law which, if granted review, will materially advance the final 

disposition of these cases. Should the Commission grant review and reverse my denial of the 

settlement motions, the June 16, 2010 hearing would likely become unnecessary and the cases 

could be easily disposed of without the expenditure of further resources from either party. If, on 

the other hand, theCommission does not reverse the denial, the hearings on the issue of the 

evidence required to support a penalty assessment in a settlement will be guided by the 

Commission's ruling on the matter. 

At the heart of this certification order is the authority of Commission Administrative 

Law Judges to address proposed settlements. Given that the just over two weeks remain before 

the scheduled June 16th hearing, I find it is appropriateto continue the hearing and stay these 

matters pending the resolution of this issue before the Commission. The operator has not taken a 

position on the settlement agreements and has expressed no opposition to this motion. 

·ORDER 

For the foregoing reasons, the Secretary's Unopposed Motions for Certification for 

Interlocutory Review are GRANTED for the three above captioned matters. Accordingly, it is 

ORDERED that the question of what requirements if any, an administrative law judge may 

32 FMSHRC Page 716 
impose upon the Secretary to demonstrate the six penalty criteria as they relate to a modified 

penalty in a settlement context is CERTIFIED for review. Related to that question, is whether 

an administrative law judge may consider the "deterrent purposes" that underlay the penalty 

scheme in reviewing a settlement proposal. Further, the Secretary's Motions for Continuance of 

Hearing are GRANTED and these matters are STAYED pending further notice. 

Distribution: 

Rafael Alvarez, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 

Suite 844, Chicago, IL 60604 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340 

401 Liberty Avenue, Pittsburgh, PA 15222 

!MM 

32 FMSHRC Page 717 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

BRODY MlNING, LLC., 

Respondent 

WASHINGTON, D.C. 20001 

(202) 577-6809 

June 13, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2009-1445 

A.C. No. 46-09086-184529 

Brody Mine No. 1 

ORDER ON RESPONDENT'S MOTION FOR CERTIFICATION OF 

INTERLOCUTORY RULING 

Before the Court is Respondent, Brody Mining, LLC's, Motion for Certification of 

Interlocutory Ruling. ("Motion") 1 Respondent maintains that interlocutory review of the Order 

Accepting Late Filing and Order Denying Motion to Dismiss, issued by Chief Administrative 

Law Judge Robert J. Lesnick on April 9, 2010, is appropriate on the grounds that a controlling 

question of law is involved and that immediate review will materially advance the final 

disposition of this civil penalty proceeding. For the reasons which follow, Respondent's Motion 

is DENIED. 

futerlocutory review is addressed at 29 C.F.R. Section 2700. 76 of the Procedural Rules 

("Rules") for the Federal Mine Safety and Health Review Commission. ("Commission"). That 

Section notes that interlocutory review is not a matter of right, but rather one within the sound 

discretion of the Commission. There are different routes for a motion for interlocutory review to 

arrive before the Commission so that it may decide in its discretion whether such review is 

warranted. The presiding judge· may certify on his own initiation that the twin criteria (i.e. 

controlling question of law and immediate review would materially advance final disposition) 

1

Respondent took two avenues, nearly simultaneously, to seek review of the same issue 

raised in its Motion for futerlocutory Ruling. It did so by filing a Petition for Discretionary 

Review of the same issue on May 12, 2010. Its Motion for Interlocutory Ruling was filed on 

May 11th but was not received by the Commission until May 17th. ( Petitions for Discretionary 

Review have an effective date of filing upon receipt, whereas filing of a motion for interlocutory 

review, among other subjects, is deemed effective upon mailing.) Therefore, the two efforts to 

obtain review were essentially taken at the same time. 

32 FMSHRC Page 718 
exist or the judge may agree with a party's motion, asserting the appropriateness of such review. 

29 C.F.R Section 2700.76{a){l){i). Neither obtains here, as the Court is not acting on its own 

motion and does not subscribe to Respondent's contention that the criteria are met. 2 

Procedurally, Respondent had sought to have the civil penalty assessment dismissed on 

account of the Secretary's late filing, filing a motion seeking such relief on December 18, 2009. 

The Secretary opposed the motion, asserting that the high rate of contests and staffing shortage 

explained the delay in her filing.3 The Chief Administrative Law Judge then issued his ruling, on 

April 9, 2010, denying the motion. Respondent cites the Chief Judge's observation in that Order 

that the preference is to resolve such cases on the merits rather than on procedural shortcomings· 

and that the 45 day filing requirement was not intended to be a procedural straitjacket. Not 

mentioned by the Respondent, but noted by the Chief Judge, is "the unprecedented number of 

cases currently before the Commission, as well as the unprecedented number of penalty petitions .. · · 

pending before the Secretary ... " Order at 2. fu light of those facts, the Chief Judge described 

"strict adherence to the 45-day time line [as] unrealistic." Id. 

Reduced to its essence, Respondent contends now that as the Secretary of Labor failed to 

file its petition for assessment of civil penalty within 45 days of receipt of its contest of those 

penalties, per Section 2700.28{a) of the Rules, and did not otherwise justify its failure to meet 

that filing time period, but instead did not file its petition until 135 days had elapsed beyond the 

due date, "Brody suffered prejudice because it was unable to resolve the citations at issue ... so 

as to expose itself to a potential pattern of violation notice." Motion at 2. 

Respondent elaborates on its contention that this matter should be dismissed, arguing that 

the Chief Judge failed to consider whether adequate cause for the 135 day delay was established 

and did not consider the ''prejudice alleged by Brody [Mining]." Id. at 4. 

Upon consideration, the Court concludes that there is no controlling question of law 

involved here. The notion that a 135 day delay can perforce prejudice Respondent is hollow. 

Similarly, the claim Respondent has exposed itself to a potential pattern of violation notice is 

speculative, at best. A host of cases have recognized both that Section 105( a) of the Mine Act 

"does not establish a limitations period within which the Secretary must issue penalty proposals." 

Paiute Aggregates Inc., 24 FMSHRC 950, 951(October2002), citing (among other cases) Steele 

Branch Mining, 18 FMSHRC 6, (Jan. 1996) and Rhone-Poulenc of Wyoming Co., 15 FMSHRC 

2089, 2092-93 (October 1993), ajf'd 57 F.3d 982 (10th Cir. 1995). Further, it is noted that in 

2

Unfortunately, the Secretary of Labor has not provided any response to Respondent's 

Motion. As a significant period of time had elapsed since the Motion was filed, and therefore, 

barring an extension, the time for filing of an opposition had elapsed, the Court decided to issue 

its ruling without the benefit of the Secretary's input. 

3

Indirectly, the Secretary demonstrated its staffing shortage as its opposition to 

Respondent's motion was itself out of time. 

32 FMSHRC Page 719 
Steele Branch the Commission took "official notice" that the Secretary had an unusually high 

case load and determined that provided adequate reason for the delay. Certainly the high case 

load explanation, fully warranted in the past, is even more compelling today. Official notice of 

this fact is appropriate and the Court, as has Congress, takes such notice of the enormous 

caseload which exists today. 

Finally, the Court notes that in the civil penalty proceeding which may ensue, the 

Respondent will not be precluded from contending that the delay worked to its prejudice in the 

defense to the 19 violations alleged, nor will it be precluded from establishing that some or all of 

the violations alleged to be "significant and substantial" were not in fact of that character. 

Accordingly, for the foregoing reasons, Respondent's Motion for Certification of 

Interlocutory Ruling is DENIED.4· 

William B. Moran 

Administrative Law Judge 

4

Per 29 C.F.R. Section 2700.76(a)(l)(ii), Respondent must file with the Commission a 

petition for interlocutory review within 30 days ofthe Court's denial of such motion for 

certification. 

32 FMSHRC Page 720 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE. N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-99 / FAX: 202-434-9949 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADl\.1INISTRA.TIO:N(l\.1SHA),on 

behalf of JOSE A. CHAPARRO , 

Complainant, 

v. 

COMUNIDAD AGRICOLA 

BIANCHI, lNC., 

Respondent 

June 15, 2010 

TEMPORARY RElNSTATEl\.1E:NT 

PROCEEDI:NG 

Docket :No. SE 2010-:295-Dl\.1 

l\.1ine ID 54-00350 

CAB Aggregates 

DENIAL OF MOTION TO ISSUE ORDER TO SHOW CAUSE 

In December 2009, the Secretary of Labor, appearing on behalf of Jose A. Chaparro, filed 

an application to reinstate Mr. Chaparro to the position he held with Comunidad Agricola 

Bianchi, Inc. (CAB), as of the date the Secretary alleged Mr. Chaparro was illegally laid off. 

Following a hearing, I granted the application and issued a decision and order reinstating Mr. 

Chaparro to ''the position he held on August 14, 2009, or to an equivalent position, at the same 

rate of pay and with the same benefits to which he was then entitled." 32 Fl\.1SHRC 206,' 211 

(February 2010). Although the order and decision settled the issues raised in the application, I 

retained jurisdiction over the reinstatement. Subsequently, the Secretary filed a complaint of 

discrimination on Mr. Chaparro's behalf (SE 2010-434.:.Dl\.1). Counsels and I agreed that a 

hearing on the merits of the discrimination complaint would begin on August 10, 2010. 

On April 30, 2010, t4e Secretary filed a motion in the temporary reinstatement case 

(Docket :No. SE 295-Dl\.1) requesting that I iSsue an order requiring CAB to show cause why Mr. 

Chaparro had not been remstated consistent with the February 22, 2010 Order. The Secretary 

pointed out that at the reinstatement hearing, Mr. Chaparro testified that he worked in heavy 

equipment maintenance and that his duties were "[ c ]heck[ingJ the oil on the machinery, oil and 

filter changes, greasing the machinery" and ''washing [the equipment] with the ... pressure 

washer." (l\.1.ot. 2, citing Tr. 16.) ·Tue Secretary also pointed out that the company administrator, 

Reynat Jimenez, testified that Mr. Chaparro's duties included being "in charge of cleaning floors, 

the workshop, the tools, maintaining all the heavy equipment, cleaning the green areas, collecting 

used oil, washing heavy equipment, and everything related to maintenance at ... CAB." {Tr. 

32 Fl\.1SHRC Page 721 
74.) Reynat Jimenez also testified that Chaparro had to provide maintenance to a sand screener, 

a piece of equipment that was not in the shop, but rather "in the field" and to a drag line, another 

piece of equipment that was "in the field." {Tr. 96.) 

The Secretary asserted that although CAB had reinstated Mr. Chaparro, his duties were 

inconsistent with those described at the hearing. (Mot. 2.) The Secretary attached to the motion 

a signed declaration ofMSHA Inspector Isaac E. Villahermosa in which the inspector declared 

that upon receiving a complaint (presumably from Mr. Chaparro), the inspector visited CAB' s 

facility in April 2010. The inspector stated that he found: 

a) CAB had reinstated Mr. Chaparro to a position other than that which he 

held on August 14, 2009 or its equivalent. 

b) Mr. Chaparro's duties and responsibilities as of April 28, 2010 differed 

from those he performed on August 14, 2009, and were performed 

under arduous conditions. 

c) As of April 28, 2010 CAB was selectively enforcing work rules against 

Mr. Chaparro. 

Villahermosa Deel. 2. 

Following receipt of the motion, counsels and I conferred via a conferenced telephone 

call, and counsel for CAB expressed his opiri.ion that the duties to which Mr. Chaparro was 

assigned were not outside his prior maintenance duties. He also requested additional time to 

respond to the motion, a request that was granted with the concurrence of counsels for the 

Secretary. 

Counsel for CAB responded on May 10. He noted that the motion "does not state the 

specific actions that ... [CAB] has taken or failed to take in relation to the ... order." (Reply 2.) 

He went on to state that the mine is small in terms of manpower, and in terms of product (sand) 

sold and delivered to clients' trucks. Mr. Chaparro is one of five employees who work at the 

mine: three heavy equipment operators, one chief mechanic and Mr. Chaparro who works in 

general maintenance, which "includes the mecharilc shop and the surroundings." (Reply 3.) 

According to counsel, Mr. Chaparro "is doing what he had done during the 45 days that he 

worked with ... [CAB] before he was notified his employment [was] terminated" and that he "is 

only doing the functions that he was doing prior to August 14, 2010." Id. Further, "even though 

all other employees have to do their primary works [sic.] every employee, works where he is 

needed, [and] if the heavy equipment operato~ have to work in the mechanic shop because the 

mechanic did [not l show up for work, if he has the knowledge that employee will perform those 

duties." ·Id. at 3-4. CAB maintains that in fact, "Mr. Chaparro is doing less work than the other 

employees and only performing the duties that were stated or testified in the hearing of this case 

on February 2, 2010." Id. at 4. · 

CAB attached to its response sworn statements from Frankie Rosado Perez, a CAB 

32 FMSHRC Page 722 
mechanic and machine operator, Israel Gonzalez Tirado, an apparent employee of CAB, Jose 

Heriberto Rodriguez Valentin, a heavy equipment operator, Hipolito Polanco Ramirez, a loader 

operator and Reynat Jimenez, the administrator of CAB. In general the statements maintain that . 

none of the persons have seen Mr. Chaparro abused or treated with disrespect. In addition, 

Reynat Jimenez states that ''usually [Mr. Chaparro] stays cleaning in the shop, that [the shop is] 

in a covered area[,] while the other employees work in the sun", but that "[i]fhe is required to 

leave the shop it would be an exception, and the work required should be done in a couple of 

hours." (Jimenez Sworn Statement 2.) Reynat Jimenez goes on to state that if Mr. Chaparro is 

not available to work, other employees must perform his duties. Id. 

CAB also supplemented its response by submitted a sworn statement from Manuel 

Menendez-Marin, the president of CAB. Mr. Menendez-Marin stated that low production due to 

dramatically declining sales has resulted in "everyone lending a hand to the other employee if he 

or she cannot work or for some reason, the others have to help." (Menendez-Mariri Sworn . 

Statement 1-2.) He further stated that Mr. Chaparro "isn't the only employee in the mine, there 

are five other employees who have to cover for those who do not show up for work or are doing 

other tasks. Mr. Chaparro['s] primary job is maintenance of the [machines] and green areas. He 

usually works in the shop [and] all others employees work under the stin. When he is reqμired to 

perform work in other areas it's for a short time." Id. at 3. 

On the same day the Commission received Menendez-Marin's sworn statement, Counsel 

for the Secretary objected to the statements and complained that they did not address "the · 

Secretary's underlying allegations ... that Mr. Chaparro has been reinstated to work exclusively 

on tasks that are different and more arduous than those which he performed prior to 

reinstatement" and that because the statements were written in English and the persons making 

the statements were primarily or solely conversant in Spanish, the statements should be given no 

weight. (Sec'y Letter in Response to Resp't Reply to Mot. for Order to Show Cause (May 11, 

2010).) ' 

RULING ON MOTION 

The Secretary asks that I issue an order requiring CAB to show why Mr. Chaparro has not 

been reinstated consistent with the terms of my order of February 22, 2010, (Motion for Order to 

Show Cause at 3), which required that he be reinstated "to the position he held on August 14, 

2009, or to an equivalent position, at the same rate of pay and with the same hours and benefits to 

which he was then entitled." 23 FMSHRC at 211. The Secretary is not asserting CAB has failed 

to reinstate Mr. Chaparro. He is back at work and CAB has complied with that part of the order. 

Rather, the Secretary is asserting Mr. Chaparro has not returned to the same or to an equivalent 

position because he has not been given the same duties he held previously. See Villahermosa 

Deel. at 2. 

As noted above, the record at the reinstatement proceeding revealed that Mr. Chaparro's 

position on August 14, 2009, was that of a maintenance worker. I conclude from the statements 

32 FMSHRC Page 723 
submitted by CAB that he has been reinstated to that position. It is really the specific duties to 

which he has been assigned that are the subject of the motion. The problem with the motion is 

that it asks the Commission to venture into an area and to make judgements on an issue the 

Commission is particularly ill equipped to decide at this point in this proceeding - the validity of 

specific work a8signments given to Mr. Chaparro in his capacity as a maintenance worker for 

CAB. 

It is true that the company has lost some of its freedom to direct its work force consistent 

with its business needs, in that it has been required to reinstate Mr. Chaparro and to return him to 

the same position he held as of August 14, 2009. However, the company has met this 

requirement. The question of whether or not the duties he is assigned are consistent with the 

position to which he has been returned must be tested not only against the duties he held prior to 

August 14, 2009, but also against the current duties required of all maintenance workers, because 

the company has not lost its freedom to direct its workforce consistent with its needs as they have 

evolved since Chaparro' s reinstatement. 

the Secretary essentially maintains that the duties are different and are performed under 

arduous conditions. CAB essentially maintains that Chaparro is continuing to work as he did 

prior to August 14, 2009, with the caveat that ifhe is required to do .other duties, they are those 

required of other maintenance workers given the evolving state of its business and workforce. 

The Commission's judges cannot act as uber-:managers of a company by substituting their 

business judgements for those of a company's managers with regard to every work assignment 

given to an employee. The company has been ordered to reinstate Mr. Chaparro to the same ot to 

an equivalent position, and it has done so. If in fact the duties Mr. Chaparro has been required to 

undertake are more arduous and less desirable than those assigned other maintenance workers, 

and if they have been given because Mr. Chaparro engaged in activity protected under the Act, 

they may, as the Secretary points out, give rise to a claim of discrimination . . See Secy's Letter 

(May 11, 2010). They do not, however, serve as a basis for issuing an order requiring the 

company to show cause why it is not complying with a previously issued order. 

For these reasons, the Motion for an Order to Show Cause IS DENIED. 

j;)~d..6~ David Barbour 

Administrative Law Judge 

32 FMSHRC Page 724 
Distribution: 

Rafael Sanchez Hernandez, Esq., First Bank Building, Suite 320, 1519 Ponce de Leon Ave, San 

Juan, PR 00909 

Jose A. Chaparro, HC-03, Box 32560, Aguada, PR 00602 

Allison L. Bowles, Esq., Marc G. Sheris, Esq., U.S. Department of Labor, Office of the Solicitor, 

201 Varick Street, Room 983, New York, NY 10014 

cp 

32 FMSHRC Page 725 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 I FAX: 202-434-9949 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

MAPLE COAL COMP ANY, 

Respondent 

June 15, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2009-1440 

A.C. No. 46-04236-184740 

Maple Eagle No. 1 Mine 

ORDER ACCEPTING LATE FILING 

ORDER DENYING MOTION TO DISMISS 

The Secretary of Labor, Mine Safety and Health Administration ("Secretary") filed her 

penalty petition on November 17, 2009. 1 On December 14, 2009, Respondent Maple Coal 

Company ("Maple Coal") filed its motion to dismiss for the Secretary's failure to timely file the 

penalty petition, accompanied by its answer. Maple Coal alleges that it was prejudiced by the 

delay. 

On January 29, 2010, the Secretary filed an Opposition to Respondent's Motion to 

Dismiss and Request for Acceptance of Petition Out-of-Time, in which it is alleged that the high 

rate of contests, coupled with limited staff, accounted for the delay. 

On February 6, 2010, Maple Coal filed a Reply to the Secretary's Opposition, in which it 

further outlined its passionate arguments in favor of dismissal. 

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

("Mine Act"), states that a mine operator wishing to contest a citation or an order or a 

notification of proposed assessment of penalty must notify the Secretary of Labor ("Secretary'') 

of its desire to do so within 30 days of receipt of the citation or order or proposed assessment, at 

which time the Secretary immediately shall notify the Commission, and the Commission shall 

afford an opportunity for hearing. Commission Rule 28(a) provides that ''within 45 days of 

receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the 

Commission a petition for assessment of penalty." 29 C.F.R. § 2700.28(a). 

1

In future proceedings, the Secretary should also file a Motion to File the Petition Out of Time in 

accordance with 29 C.F .R § 2700.9. 

32 FMSHRC Page 726 
Maple Coal filed its notice of contest in the above-captioned docket on May 13, 2009. 

Accordingly, under Section 2700.28( a), the Secretary's petition for assessment of civil penalty 

should have been filed by June 29, 2009. 

While I take cognizance of the Maple Coal's passionate arguments, case law 

demonstrates the Commission's preference toward resolving cases on the merits rather than 

based on procedural defects. See M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271(Sept.1986) 

and Coal Prep. Services, 1nc., 17 FMSHRC 1529, 1530 (Sept.1995). It is well-settled that the 

late filing of a civil penalty petition is not jurisdictional. See Salt Lake County Road Dept., 3 

FMSHRC 1714, 1716 (July 1981). While the Secretary should adhere to the 45-day time limit, 

the Commission has made clear that neither the term "immediately'' contained in Section 105( d) 

of the Mine Act nor the time limit should be construed as a "procedural straitjacket[ J." Id. at 

1716. 

Furthermore, given the unprecedented number of cases currently before the Commission, 

as well as the unprecedented number of penalty petitions pending before the Secretary, strict 

adherence to the 45-day tim~ line is unrealistic. See Solar Energy, 31FMSHRC729, 730 (June 

2009) (ALJ Feldman). 

In light of all of the foregoing, it is ORDERED that the Secretary's late-filed penalty 

petition is ACCEPTED. Accordingly, Maple Coal's motion to dismiss is DENIED. 

~c.J.~ · Robe~n\k Chief Administrative Law Judge 

Distribution: 

Richard D. Hosch, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

100 Bluestone Road, Mt. Hope, WV 25880-1000 

Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501 

/meh 

32 FMSHRC Page 727 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

V. 

DJB WELDING CORPORATION, 

Respondent. 

June 28, 2010 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 2009-89"-M 

A.C. No. 28-00547-174965-DDH 

Mine: Jackson Plant 

ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION 

This case is before me upon a petition for assessment of civil penalty filed on April 28, 

2009 by the Secretary of Labor ("Secretary'') against DJB Welding Corporation (''the 

Respondent"), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 

("the Mine Act" or "the Act"), 30 U.S.C. § 815(d). The Secretary issued eleven citations 

alleging violations of health and safety standards pursuant to the Secretary's regulations 

applicable to surface metal and nonmetal mines. See 30 C.F.R. pt. 56. The Respondent, 

appearing pro se, contests the validity of th~ citations, alleging that an inspector for the Mine 

Safety and Health Administration ("MSHA") denied the Respondent's right to accompany the 

inspector during the physical inspection of the mine pursuant to section 103(.f) of the Mine Act, 

30 u.s.c. § 813(.f). 

During a conference call with both counsel for the Secretary and the Respondent's 

representative, I determined, and the parties agreed, that there was no genuine issue of material 

fact surrounding the alleged denial of Respondent's "walkaround rights" under section 103(.f) of 

the Act. As this issue can be resolved as a matter oflaw, on February 2, 2010, I ordered 

Respondent to submit a written brief setting forth the undisputed material facts and an 

explanation as to why the Respondent believes that his rights under section 103(.f) of the Act 

were violated. The Respondent complied and raised other issues, in addition to the alleged 

violation of section 103(.f), in his brief to support dismissal of this case. I construe the 

Respondent's brief to be the equivalent of a motion for summary decision. The Secretary filed a 

response in opposition to the Respondent's brief. For the reasons discussed below, I find that no 

genuine issue of material fact exists and that the Respondent is not entitled to summary decision 

as a matter oflaw. The Respondent was given an opportunity to exercise his walkaround rights 

in accordance with section 103(.f) of the Act. Accordingly, the citations will not be vacated and 

this matter will be set for a hearing on the merits. 

32 FMSHRC Page 728 
FINDINGS OF FACT 

On October 15, 2008, Ralph Bennett, a mine inspector employed by MSHA, went to 

Clayton Sand Company's Jackson plant site to inspect the mining operation and contractors 

working on the site. (Bennett Deel. if 1-2.) The Respondent is a contractor registered with 

MSHA and has worked for Clayton Sand Company at the Jackson plant site since 1975. (Resp't 

Aff. if 1-2.) The inspector informed Thomas Jameson, the plant manager, that he intended to 

inspect any contractors working on the mine site. (Bennett Deel. if 3.) On the day of the 

inspection, Daniel Black, the owner ofDJB Welding Corporation, was not at the Jackson site. 

(See Resp't Aff if 4.) Black was in New York City for a doctor's appointment with his 

oncologist, approximately 65 miles away from the mine site. (Resp't Aff. if 4, 6.) Jameson told 

Inspector Bennett that Black was unavailable and that Black's employees had left the mine site 

earlier that morning to perform work at another site. (Bennett Deel. if 4.) Bennett instructed 

Jameson to contact Black to see if he wanted to designate one of his workers to accompany 

Bennett during the inspection ofDJB's work area, the Nord Building. (Bennett Deel.~ 7.) 

Jameson called Black and told him that an MSHA inspector was at the Jackson site and needed 

DJB's contractor identification number. (Resp't Aff. if 4.) Black told Jameson that he was still 

at his doctor's appointment and was unable to return to the Jackson plant until 6:00 a.m. the 

following day. (Resp't Aff. if 9.) 

Bennett waited until the end of his inspection of the mining operation before he 

commenced his inspection of the Nord Building used by the Respondent. (Bennett Deel. , 9 .) 

Again, Inspector Bennett asked Jameson when Black would be back on site. (Jameson Aff. if 4;) 

Jameson called Black and informed him that the inspection of the Nord Building had begun and 

that Inspector Bennett was searching the parked welding truck that belonged to the Respondent 

(Resp't Aff if 5.) Black reiterated thathe would not be on site until 6:00 a.m. the next day. Id. 

At that time, Jameson informed Inspector Bennett that he was unsure whether any of the 

Respondent's employees were returning to the site to accompany Bennett on his inspection. 

(Bennett Deel. if 11.) ·Consequently, Jameson accompanied Bennett during the inspection of the 

Nord Building. Id. Jameson told Inspector Bennett that the Respondent operated and controlled 

the equipment and activities within the Nord Building. (Bennett DecL if 14.) Jameson assured 

Bennett that only Black's employees used the Nord Building and, as such, he had no knowledge 

of any hazardous conditions. (Bennett Deel. if 13-14.) During the course of the inspection, 

Bennett issued eleven citations against the Respondent. (See Sec'y Ex. A.) The Respondent 

asserts that five of the citations issued were for violations discovered in buildings or on 

equipment that it neither owns nor controls, (Resp't Aff if 7.) Respondent contests the validity 

of all citations issued and urges the court to vacate all eleven citations based on the alleged denial 

ofwalkaround rights under section 103(f) of the Act. (See Resp't Br. at 5-7.) 

32 FMSHRC Page 729 
GENERAL PRINCIPLES OF LAW 

Section 103( f) of the Mine Act states in pertinent part: 

Subject to regulations issued by the Secretary, a representative of the operator and 

a representative authorized by his miners shall be given an opportunity to 

accompany the Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the provisions of subsection 

(a), 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) (emphasis added). The Act defines an "operator" as "any owner;Jessee, or 

other person who operates, controls, or supervises a coal or other mine or any independent 

contractor performing services or construction at such mine." 30 U.S.C. § 802(d). The right of a 

mine operator to accompany an inspector has been "consistently recognized by the Commission 

and the courts." Secy of Labor v. Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994). 

DISCUSSION 

The Respondent contends that Inspector Bennett abused his discretion by arbitrarily 

denying the Respondent his right to accompany Bennett during his inspection pursuant to section 

103(f) of the Act. The Respondent argues that he had no notice of the inspection, and because he 

was 65 miles away from the mine site, there was no feasible way he could have exercised his 

walkaround rights on October 15,2008. The Respondent further argues that it was unreasonable 

for Bennett to proceed with the inspection because Bennett was going to be at the site the next 

day and could have easily delayed the inspection until the following morning when Black would 

be present to accompany Bennett on the inspection of the Nord Building. 

Advance notic:e of an inspection is not required under the Act and is unwarranted by public 

policy_ and safety concerns 

The Respondent misconstrues the law concerning whether an inspector is required to give 

notice to a mine operator prior to an inspection. Section 103( a) of the Act explicitly confers 

upon MSHA inspectors the right to enter any mine without any advance notice of an inspection. 

30 U.S.C. § 813(a). Furthermore, the Supreme Court of the United States has also recognized 

that section 103(a) of the Act grants MSHA inspectors the right to conduct warrantless 

inspections of any mine to ensure compliance with mandatory health and safety standards. See 

Donovan v. Dewey, 452 U.S. 594, 596 (1986). I recognize the vital role that unannounced 

inspections play in overseeing the mining regulatory scheme. If mine operators had advance 

notice of an inspection, they could easily conceal any hazardous conditions prior to the arrival of 

the inspector. This would certainly circumvent the purpose of section 103 of the Act and render 

inspections meaningless. In Topper Coal Company, the Commission concluded that a mine 

operator violated section 103(a)'s prohibition against advance notice when the operator warned 

two underground miners that MSHA inspectors were coming. Secy of Labor v. Topper Coal 

32 FMSHRC Page 730 
Co., 20 FMSHRC 344, 348-49 (Apr. 1998). When the inspectors went underground, they found 

the two miners cleaning up accumulations of coal around the conveyor belt. Id. at 346. This is 

precisely the type of behavior that section 103(a) seeks to prevent. 

Although it is undisputed here that neither the Respondent nor any. of his employees were 

on the mine site that day, had the inspector agreed to delay the inspection it is possible they could 

have made efforts to clean up any violations before the inspector arrived on site the following 

day. I find that Respondent's request to delay the inspection to the following day was made in 

good faith. Nevertheless, exceptions cannot be carved out from a statutory mandate that 

explicitly states "no advance notice of an inspection shall be provided to any person." 30 U.S;C 

§ 813(a). Moreover, I understand Black's plea that it would have been simple for the inspector to 

delay the inspection as Bennett was already planning on returning to the site the next morning. 

However, the question is not whether it was burdensome to postpone the inspection. Regardless 

of the circumstances, an inspector is prohibited from providing a mine operator with advance · 

notice of an inspection. Had Inspector Bennett agreed to delay the inspection until the next 

morning, it could be interpreted as advance notice and be a potential violation of section · 103( a) 

of the Act. See, e.g., Topper Coal Co., 20 FMSHRC at 348-49. In sum, I conclude that the 

public interest of promoting safety at mines outweighs the inconvenience of unannounced 

inspections. 

The Supreme Court has authorized warrantless inspections of mines as constitutional under 

the Fourth Amendment 

The Respondent also asserts that his Fourth Amendment rights were violated when 

Inspector Bennett searched the contents of Respondent's welding truck without notice or 

pennission. The Supreme Court created an exception to.the warrant requirement for certain · 

industries that are pervasively regulated by the federal government. See, e.g., New York v. 

Burger, 482 U.S. 691, 707 (1987) (authorizing warrantless inspections of automobile junkyards 

as constitutionally permissible); Donovan v. Dewey, 452 U.S. at 605 (1981) (finding the mining 

industry to be a closely regulated business that allows warrantless inspections by federal mine 

inspectors); United States v. Biswell, 406 U.S. 311, 315-16 (1972) (holding that inspections of 

firearms dealers without warrants are reasonable under the Fourth Amendment); Colonnade 

Catering Corp. v. United States, 397 U.S. 72, 76 (1970) (finding warrantless inspections of 

liquor licensees to be constitutional). As noted above, in Donovan, the Supreme Court 

specifically held that section 103( a) of the Mine Act authorizes warrantless inspections of mines 

without violating the Fourth Amendment. Donovan, 452 U.S. at 605. Because of the dangerous 

nature of mining, the field has a long history of being heavily regulated by the government to 

ensure compliance with health and safety standards. Id. at 603. Consequently, all mine owners 

and operators must be,aware and even expect continuous and frequent inspections without a 

warrant or probable cause. Id. 

Furthermore, section 103(a) confers upon MSHA inspectors a right of entry to, through, 

or upon any coal or other mine for the purpose of conducting an inspection. 30 U.S.C. § 813(a). 

The "right of entry'' encompasses more than merely giving an inspector the right to physically 

32 FMSHRC Page 731 
enter the mine. "It includes the right to use any investigatory technique reasonably related to the 

discovery of violations, so long as it is employed within reasonable limits and in a reasonable 

manner." Sec'y of Labor v. Cougar Coal Co., 17 FMSHRC 628 (Apr. 1995)(ALJ) (citing 

Donovan v. Enter. Foundry Inc., 751F.2d30, 36 (1st Cir. 1984)). Here, the Respondent's 

welding truck was a work vehicle and could have potentially presented hazardous safety 

conditions on the Jackson plant site. Therefore, I find that Inspector Bennett's search of the 

Respondent's parked welding truck was an acceptable investigatory technique that was 

reasonably related to the discovery of violations of health and safety standards. 

In light of SCP Investments 

The Respondent relies on the Commission's recent decision in SCP Investments to 

support the claim that its walkaround rights were denied and, as such, that all citations should be 

vacated. Sec'y of Labor v. SCP Invs., LLC, 31 FMSHRC 821 (Aug. 2009). In SCP Investments, 

a businessman purchased a rock crushing quarry with no prior background or experience in 

mining. Id. at 823. This owner-operator was unfamiliar with MSHA and was unaware of the 

legal requirements of the Act. Id. Approximately three months after the owner's purchase, a 

federal mine inspector arrived at the quarry to inspect its operations. Id. Theinspector quickly 

learned that the quarry had no MSHA identification number and asked the owner whether his 

employees were properly trained in accordance with MSHA's training regulations for new 

miners. Id. at 823-24. The owner replied that he had no knowledge of any training requirements. 

Id. at 824. The inspector immediately escorted the owner off the premises and directed him to 

remove his employees from the premises. Id. The inspector then informed the mine owner that 

he was going to inspect the quarry. Id; The owner asked the inspector if he could accompany 

him during the inspection, but the inspector refused because the owner had not completed 

twenty-four (24) hours of new miner training, id., required by regulations set forth in the Act, see 

30 C.F.R. §§ 46.5(a), 46.11. 

The Cominission concluded that the owner's walkaround rights under section 103(f) were 

arbitrarily denied. Id. at 827. The Commission found that section 46.5 which requires new 

miner training, and section 46.11 which requires site-specific hazard training for any non-miners 

present at the mine site, were not sufficient justifications to exclude the mine owner from being 

present during the inspection. Id. at 829-31. As noted by the Commission, section 46.5 is a 

requirement new miners must fulfill prior to working in a mine and is unrelated to inspections of 

mines. Id. at 830; 30 C.F.R. § 46.5(a). The Commission further noted it previously held that 

non-miners, with no mining training or experience, may be appointed as representatives of 

miners and permitted to participate in an inspection under section 103(f) of the Act. Id.; see 

Emery Mining Corp. v. Sec'y of Labor, 10 FMSHRC 276 (Mar. 1988), ajf'd in pertinent part and 

rev'd on other grounds sub. nom. Utah Power &Light Co. v. Sec'y of Labor, 897 F.2d 447 (10th 

Cir. 1990). Next, the Commission addressed the fact that site-specific hazard training under 

section 46.l l(f) is not required for non-miners who are accompanied by an "experienced miner" 

who is familiar with the hazards of the mine site. Id. at830; 30 C.F.R. § 46.1 l(f). The 

Commission reasoned that the inspector qualified as an "experienced miner" who was aware of 

32 FMSHRC Page 732 
the hazards and safety issues of the mine. Id. Thus, the owner should have been allowed to 

accompany the inspector during his inspection of the quarry. 

Nevertheless, the Commission remanded the case because it concluded that the judge 

erred in using the denial ofwalkaround rights as a basis to vacate the citations issued by the 

inspector.1 Id. at 834. On remand, the judge explained that the citations were originally vacated 

based on the inspector's abuse of discretion, not solely on the fact that the owner was denied his 

walkaround rights. Sec'yofLaborv. SCP Invs., LLC, 32FMSHRCl19, 2010 WL 390288, *1 

(Jan. 5, 2010) (ALJ). Judge Feldman went on to clarify his original position stated in his initial 

decision: 

Section 103( f) does not mandate that an inspector must be accompanied by a mine 

operator during an inspection. Thus, I am cognizant that the failure of a mine 

operator to accompany an inspector is not a jurisdictional bar to the issuance of 

citations for violations of the Secretary's mandatory safety standards observed. 

during the inspection. However, section 103(f) provides the "opportunity" for the 

mine operator to exercise its right to be present during an inspection. This right 

cannot arbitrarily be denied. 

Secy of Labor v. SCP Invs., LLC, 30 FMSHRC 544, 548 n.3 (June 2008) (ALJ) (internal 

citations omitted). The facts of the case at hand are distinguishable from the factual scenario 

presented in SCP Investments. 

Ultimate Findings and Conclusions 

I recognize the right of a mine operator to be present and accompany an inspector as a 

fundamental right. However, this fundamental right under section 103(f) is not the right to be 

present for every inspection. Rather, it is the right to be given an opportunity to be present 

during an inspection. I determine that Black was given an adequate opportunity to exercise his 

walkaround rights pursuant to section 103(f) of the Act. DJB Welding is a small contractor run 

by Black. I understand the hardship involved and acknowledge it would have been nearly 

impossible for Black to leave his doctor's office in New York City and travel over ninety minutes 

to the Jackson mine site in time to accompany Bennett on the inspection. Even so, Black could 

have designated one of his employees to accompany Bennett as a representative ofDJB Welding. 

While the Act prohibits advance notice of inspections, Black knew he would be off-site that day 

and was also aware that random mine inspections could occur at any time. Unlike the mine 

owner in SCP Investments who was unaware ofMSHA's legal requirements, Black has been a 

contractor registered with MSHA since 1975. Moreover, Black has been subject to periodic 

1 The last sentence of section 103(f) specifically states that enforcement actions, which 

are otherwise valid, cannot be vacated as a result of the inspector's failure to comply with the 

requirements of section 103(f) of the Act. SCP lnvs., 31 FMSHRC at 834. "Compliance with 

this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of 

this Act." 30 U.S.C. § 813(f). · . 

32 FMSHRC Page 733 
safety inspections at the Jackson mine site for over thirty-five years. In Black's own affidavit, he 

admitted to being "inspected by MSHA many times over the years." (Resp't Aff., 2.) 

Therefore, it is reasonable to expect such an experienced contractor to plan accordingly for such 

events, knowing that he would be unavailable on that day if an inspector arrived. 

More importantly,; there is a crucial distinction between a mine operator's unavailability 

or decision not to participate, and an MSHA inspector's outright refusal to allow an operator to 

participate. The Commission itself, in SCP Investments, discussed the substantive difference 

when it explained that an operator's absence from an inspection is generally inconsequential, yet 

an arbitrary refusal of a ready and willing operator to accompany an inspector is a statutory 

violation of the operator's walkaround rights under 103(t) of the Act. See SCP Invs., 31 

FMSHRC at 827, 829, 830-31, 838. This distinction is what yields a different outcome here than 

the one reached in SCP Investments. In the case before me, Respondent was not denied an 

opportunity to exercise his 103(t) walkaround rights. In fact, Inspector Bennett made more than 

one request of Jameson to call Respondent. This call was not meant to ensure that the contractor 

would be present; rather, it was to ensure that Respondent had an opportunity to be present either 

in person or through a designated representative. Indeed, no evidence was presented (and none 

supports the argument) that, had the Respondent been present at the Jackson site, Bennett would 

have refused to allow the Respondent to accompany Bennett on the inspection, as the inspector 

had in SCP Investments. 

In fact, I find that the opposite conclusion can be drawn from the facts. Inspector Bennett 

waited until the end of his inspection of the mining operation before commencing the inspection 

of the building used by the Respondent. Inspector Bennett made reasonable efforts to give the 

Respondent an opportunity to accompany Bennett or send a representative to accompany him on 

the inspection of the Nord Building. In the end, Jameson, as plant manager of the Jackson site, 

did accompany Bennett on the inspection of the Nord building used by the Respondent. Thus, I 

conclude that the Respondent was given an adequate opportunity to exercise his right to 

accompany Bennett during the inspection of the Nord Building on October 15, 2008. The 

Respondent's inability to be present at the time of inspection, and his failure to designate a 

representative to participate in the inspection does not constitute a violation of the Respondent's 

walkaround rights and does not warrant vacating the citations issued. 

An abuse of discretion must be·present to vacate citations 

Assuming arguendo that the Respondent's walkaround rights under section 103(t) were 

violated, vacating the citations issued during the inspection is not an automatic remedy. There is 

an additional step of analysis necessary to determine whether such a harsh sanction is 

appropriate. The Commission discussed this principle, which is further illustrated by the 

legislative history surrounding section 103(t) of the Act. The Senate Committee explained that 

section 103(f) requires "that representatives of the operator and miners be permitted to 

accompany inspectors in order to assist in conducting a full inspection. It is not intended, 

however, that the absence of such participation vitiate any citations and penalties issued as a 

result of an inspection." SCP Invs., 31 FMSHRC 821, 831 (citing S. Rep No. 95-181, at 28 

32 FMSHRC Page 734 
(1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 616 (1978). The next step is to determine 

whether the denial of walkaround rights was an abuse of discretion. The Commission has 

previously found that "an abuse of discretion has occurred when there is no evidence to support 

the decisionor if the decision is based on an improper understanding of the law." Sec'y of Labor 

v. Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (internal citation omitted). If a 

violation of walkaround rights occurred because of an abuse of discretion, then such a finding 

provides a sufficient basis for vacating the citations. 

The Respondent alleges that Inspector Bennett abused his discretion in denying 

Respondent his walkaround rights because of Inspector Bennett's bias against contractors. The 

Respondent attempts to bolster this assertion by furnishing evidence that Bennett commenced the 

inspection of another contractor working on the Jackson site without waiting the two hours 

necessary for the contractor's representative to return to the site. The Respondent asserts that 

Bennett was at the mine site to specifically target contractors and further alleges that Inspector 

Bennett made disparaging comments about the Respondent, characterizing him as a "fly-bynight" contractor to his employer and several others. 

Although the facts support a finding that Bennett was concerned about contractors' noncompliance with MSHA safety regulations; he does not recall making any disparaging remarks 

concerning Respondent's reputation: (See Bennett Deel.if 16-19.) This dispute is not materialto 

the disposition of this matter. However, federal inspectors should refrain from making any 

judgments or comments about the character of an operator or contractor without personal 

knowledge of such things, and any complaints about an inspector's conduct should be raised with 

the District Manager. Moreover, the facts before me indicate that the Respondent is a qualified 

and experienced contractor who has a history of compliance with MSHA regulations and has 

maintained a strong business relationship with the same employer for over thirty-five years. (See 

Resp't Aff. if 1"3.) 

While it is true that an MSHA inspector must make every reasonable effort to give a mine 

operator an opportunity to exercise his or her walkaround rights, it is also true that inspectors are 

given broad discretion to handle the different scenarios that may arise in the course of an 

inspection. Id. An inspector's decision not to delay an inspection or wait for a representative is 

not a perse abuse of such discretion. The Interpretive Bulletin clarifying the scope of section 

103(.f) of the Act states: 

While every reasonable effort will be made in a given situation, to provide 

opportunity for full participation in an inspection by a representative of miners, it 

must be borne in mind that the inspection itself always takes precedence. . . . The 

inspector cannot allow inordinate delays in commencing or conducting an 

inspection because of the unavailability of or confusion surrounding the 

identification or selection of a representative of miners. 

43 Fed. Reg. 17,546, 17,546 (Apr. 25 1978). 

32 FMSHRC Page 735 
Inspector Bennett was not obligated to delay the inspection or even to wait longer than 

the inspector found reasonable for a representative to arrive. In F.R. Carroll, Inc., an MSHA 

inspector arrived to inspect a sand and gravel facility. Sec y of Labor v. F.R. Carroll, Inc., 26 

FMSHRC 97, 98 (Feb. 2004) (ALJ). The mine operator told the inspector that he had scheduled 

appointments that morning and was unable to accompany the inspector during the site inspection. 

Id. at 99. The operator asked the inspector if he could delay the inspection until 1 :00 p.m. (five 

hours later) because he was too busy to walkaround with the inspector. Id. Judge Feldman found 

the operator's request to delay the inspection by five hours unreasonable. Id. at 102. Judge 

Feldman further explained that ifthe operator was "too busy" to accompany the inspector, then it 

was his responsibility to designate another representative available to accompany the inspector. 

Id. I find Judge Feldman's rationale inF.R. Carroll instructive. Consequently, I conclude that 

Bennett's decision to proceed with the inspection was a reasonable course of action and not an 

abuse of discretion. 

Lastly, the Respondent argues that the citations should be vacated because five of the 

eleven citations were issued for violations discovered in buildings or on equipment that was 

neither owned nor controlled by the Respondent. The Respondent incorrectly assumes that an 

MSHA inspector can only cite either the owner or the contractor, but not both. This is simply not 

true. Even assuming that the Respondent was available on Octqber 15, 2008 to accompany 

Inspector Bennett through the inspection of the Nord Building, if a question of ownership was 

disputed, Bennett would have had the authority to issue the same citations to both the owner and 

the contractor. "Since passage of the Mine Act, the Commission and courts have consistently 

recognized that, in instances of multiple operators, the Secretary generally may proceed against 

an owner-operator, an independent contractor, .or both, for violations by the independent 

contractor." Secy of Labor v. Twentymile Coal Co., 27 FMSHRC 260, 263 (citing Republic 

Steel Corp., 1FMSHRC5, 9-11, n.13 (Apr. 1979); Bituminous Coal Operators' Ass'n, Inc. v. 

Secy of Interior, 547 F.2d 240, 246-47 (4th Cir. 1977)). Furthermore, I agree with the 

Secretary's counsel that any disputes regarding ownership can be resolved during a hearing and 

that the Respondent's ability to raise any affirmative defenses is not impaired by his absence 

during the inspection. 

For all the reasons explained above, I conclude that the Respondent was not arbitrarily 

denied an opportuIDty to accompany Inspector Bennett on the inspection of the Nord Building in 

accordance with section 103(f) of the Mine Act. Therefore, the Respondent is not entitled to 

judgment as a matter oflaw. 

32 FMSHRC Page 736 
ORDER 

In light of the foregoing, IT IS ORDERED that theRespondent's motion for summary 

decision IS DENIED. This case will be scheduled for a hearing on the merits of the citations 

issued. 

~G~ Alan 

Administrative 

G. Paez 

Law 

~ Judge 

Distribution: (Via Facsimile & U.S. Mail) 

Suzanne L. Demitrio, ESQ., Office of Solicitor, U.S. Department of Labor, 201 Varick Street, 

Room 983, New Yor, NY 10014 (Fax: 646-264-3660) 

Daniel J. Black, President, DJB Welding Corp., 1461 Toms River Road, Jackson~ NJ 08527 

(Fax:732-657-6605) 

/aw 

32 FMSHRC Page 737 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W .• SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 I FAX: 202-434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALASKA MECHANICAL, 

INCORPORATED, 

Repondent 

ALASKA MECHANICAL, 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

June 30, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-1582-M 

A.C. No. 50-01850-159018LWI 

CONTEST PROCEEDINGS 

Docket No. WEST 2008-152-RM 

Citation No. 6398234; 10/04/2007 

Docket No. WEST 2008-153-RM 

Citation No. 6398235; 10/04/2007 

Mine ID 50-01850 LWI 

Nome Operations 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

Before: Judge Lesnick 

This case is before me upon a petition for assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act" or 

''Mine Act''). The Secretary of Labor ("Secretary") and Alaska Mechanical, Incorporated 

("AMI'') filed a joint motion to approve settlement dated March 12, 2010. The case involves two 

violations issued by the Secretary under section 104 of the Act following an accident at AMI' s 

Nome Operations that, on July 19, 2007, claimed the lives of two miners when a manlift they 

were operating tipped over. 

32 FMSHRC Page 738 
The Secretary proposed that a total penalty $115,000 be assessed against AMI. After 

entering into settlement negotiations, the parties now move for approval of their settlement 

agreement in which AMI agrees to pay a total penalty of$80,000. For Citation No. 6398235 

alleging a violation of 30 C.F.R. § 56.14205, AMI agrees to pay the full proposed penalty of 

$60,000. For Citation No. 6398234 alleging a violation of 30 C.F.R. § 48,27a, AMI agrees to 

pay a penalty of $20,000, which is $35,000 less than the Secretary's initial proposed penalty of 

$55,000, a decrease in amount of approximately 64 percent. 

The authority of Commission judges to review settlement agreements filed by the 

Secretary and mine operators is found at section 11 O(k) of the Act, which provides in relevant · 

part: ''No proposed penalty which has been contested before the Commission under section 

105(a) shall be compromised, mitigated, or settled except with the approval of the Commission." 

30 U.S.C. § 820(k). The Commission has held that section l lO(k) "directs the Commission and 

its judges to protect the public interest by ensuring that all settlements of contested penalties are 

consistent with the Mine Act's objectives." Knox County Stone Co., 3 FMSHRC 2478, 2479 

(Nov. 1981). 

In Knox County, the Commission further explained the role of its judges in reviewing 

settlements: 

The judges' front line oversight of the settlement process is an adjudicative 

function that necessarily involves wide discretion. While the scope of this 

discretion may elude detailed description, it is not unlimited and at least some of 

its outer boundaries are clear . 

. . . [We] reject the notion ... that Commission judges are bound to 

endorse all proposed settlements of contested penalties. However, settlements are 

not in disfavor under the Mine Act, and a judge is not free to reject them 

arbitrarily. . . .. Rejections, as well as approvals, should be based on principled .· 

reasons. Therefore, we [have] held that if a judge's settlement approval or 

rejection is "fully supported" by the record before him, is consistent with the 

statutory penalty criteria,[1] and is not otherwise improper, it will not be disturbed. 

1 Under section 11 O(i), the Commission and its ALJ s "shall consider" the following six 

penalty criteria in assessing any penalty, and by extension, any settlement agreement under which 

an operator agrees to pay a civil penalty: "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). In its Knox County 

decision, the Commission noted that its Procedural Rule 31 implementing section 11 O(k) ''was 

revised in 1980 to delete the reqllirement ... that the judge 'consider' and 'discuss' the six 

statutory penalty criteria in orders approving settlements" in order to enhance the '":flexibility of 

32 FMSHRC Page 739 
In reviewing such cases, abuses of discretion or plain errors are not immune from 

reversal. 

Id. at 2479-80. The Commission went on to vacate the judge's rejection of the settlement motion 

in Knox County because it was not "fully supported" by the record and was inconsistent with the 

penalty criteria. Id. at 2481. 

Here, the parties represent that the penalty amounts upon which they agreed "take into 

account those factors required to be considered by Section 11 O(i)," and that findings set forth by 

the Secretary in her petition for assessment of civil penalty as to gravity and negligence "are 

supportable," Mot. at 2. The Secretary's petition alleges that the violation cited in Citation No. 

6398234 resulted from "moderate" negligence, and that the violation cited in Citation No. 

6398235 resulted from "high" negligence. Pet. at [10]., The petition alleges the gravity of both 

violations was "serious," and "contributed to the cause of a fatal machinery accident." Id. The 

parties state that AMI's history of previous violations "is as set forth in ... the Petition." Mot. 

at 2. Finally, the parties state that the company "exercised good faith in abating the cited 

conditions," and that the agreed to penalty would not affect AMI's ability to remain in business. 

Id. at 2-3. Neither of these representations is inconsistent with the Secretary's petition. Aside 

from several other general representations, the parties fail to identify and explain any particular 

facts that would support a reduction of the penalty for Citation No. 6398234 by well more than 

half. 

In other words, the parties have said that although the Secretary's penalty petition is fully 

supportable, they have concluded that the significantly reduced penalty AMI has agreed to pay is 

"fair and reasonable and serve[s] the enforcement goals of the Act," and is "in the public interest 

and will further the intent and purpose of the Act," simply because they say so. Justice William 

0. Douglas once had occasion to cite Humpty Dumpty's pronouncement to Alice in Through the 

Looking-Glass that "When I use a word ... , it meansjust what I choose it to mean - neither more 

nor less." Zschernig v. Miller, 389 U.S. 429, 435 n.6 (1968). Here, the Secretary has no such 

authority, and when she says that a penalty is "fair" and "reasonable" and "in the public interest," 

the Mine Act and Commission precedent requires her and other parties to a settlement to provide 

more than mere empty words to justify their agreement. Otherwise, section 11 O(k) would be 

meaningless, and the authority of Commission judges to review settlements would be reduced to 

providing the proverbial rubber stamp. 

the judges to approve the settlements,"' though also noting that the rule "does not sanction 

settlement decisions inconsistent with the statutory penalty criteria." 3 FMSHRC at 2480 n.3. 

Rule 31 further states that a settlement motion "shall include ... [ f]acts in support of the penalty 

agreed to by the parties." 29 C.F .R. § 2700.31. 

32 FMSHRC Page 740 
I therefore conclude that the reduced penalty agreed to by the parties for Citation No. 

6398234 lacks the factual basis necessary for me to deterinine whether the penalty would 

adequately effectuate the deterrent purpose underlying the Act's penalty assessment scheme. 

Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). 

The motion to approve settlement is DENIED. 

~~LJ~ Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: 

Bruce L. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue, 

Suite 945, Seattle, WA 98101-3212 

Cole A. Wist, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 1600 Broadway, Suite 

1940, Denver, CO 80202 

32 FMSHRC Page 741 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

72119th STREET, SUITE 443 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-8.44-5268 

June 2, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2007-460 

A.C. No. 46-08436-100698 

DocketNo. WEVA2007-470 

A.C. No. 46-08436-093158 

Docket No. WEVA 2008-889 

A.C. No. 46-08436-143554-02 

Docket No. WEV A 2008~890 

A.C. No. 46-08436-143554-03 

Docket No. WEVA 2008-S91 

A.C. No. 46-08436-143554-04 

Docket No. WEV A 2008-892 

A.C. No. 46-08436-143554-05 

PERFORMANCE COAL COMP ANY, 

Respondent Mine: Upper Big Branch - South 

SCHEDULING ORDER 

Respondent requested a hearing on the citation(s)/order(s) contained in this docket(s) and 

the proposed penalty in accordance with the provisions of section 105( d) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Mine Act) and 29 C.F.R. 2700.50 et seq. 

A hearing is scheduled for August 30, 2010 at 8:30 a.m., in Charleston, West Virginia at a 

location to be determined. A prehearing conference was held in Washington D.C. on May 20, 

2010 and the prehearing and scheduling requirements were discussed at that time, and had also 

been set forth in an earlier notice of hearing. The motion to stay this docket filed by the 

Secretary was also addressed at the prehearing conference and has been denied. 

The case(s) will be heard pursuant to section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. 815(d), and the issues include, but are not limited to, whether 

Respondent committed the violation(s) as alleged in the citation(s)/order(s) and the appropriate 

penalty to be assessed. Any person planning to attend this hearing who requires special 

32 FMSHRC Page 742 
accessibility features and/or any auxiliary aids, such as sign language interpreters, must inform 

the commission in advance of these needs. This provision is subject to the limitations of29 

C.F.R. 2706.lSO(a) and 160(d). 

These dockets are set for a trailing docket call and each party should be prepared to proceed· 

at 8:30 a.m. on the day listed herein. If the case is not heard during the week of August 9, 2010, 

it will automatically move to the next date, September 21, 2010. No case will be rescheduled 

and all cases will be heard in the order of the dates of the citations/orders, commencing with the 

docket containing the earliest date. If there are cases that should be heard together or in a certain 

order, the parties must notify the Court of that fact at the preheating conference. Every effort 

will be made to accommodate the witnesses for each docket. Absent good cause shown, no 

hearing will be continued, and no hearing will be cancelled unless a written settlement motion is 

filed with the Court. 

On or before July 30, 2010, the parties shall provide to one another a list of persons with 

knowledge of each violation and a brief summary of the information they possess and provide 

copies of all documents created by or in the possession either of the Secretary of the respondent, 

including photographs, diagrams, maps, pre-shift, on-shift or foundation records, witness 

statements that are not privileged under the Commission Rule 61, supervisor's or examiner's 

notes, compilations or summaries of the notes taken by inspectors or respondent's personnel, 

production reports, walk-around reports, rebuttal forms that are maintained by respondent, and 

other no-privileged documents whether in hard copy or electronically stored. The Respondent 

has indicated that an MSHA investigation team has taken the books from the mine, but the 

operator retained a copy of each and those shall be provided for the one week period prior to and 

the day of the date of each citation. Each party shall prepare and provide a list of all documents 

in their possession or control that may be relevant to the inspection but is being withheld, along 

with an explanation for withholding the document. Any discovery beyond the disclosures will 

be limited. As required by Commission Rule 2700.lO(c), the parties will confer in good faith 

before the filing, of any motion with the Court. The parties are encouraged to schedule a 

conference call and resolve issues without the necessity of filing a formal motion. 

The parties shall provide to one another, on or before July 30, 2010, the name, address 

and telephone number of any expert witness who may be called to testify, along with 

information about the expert's background and any reports generated by the expert. Each party 

is limited to one expert for each issue contained in the docket, i.e. one roof control expert, one 

ventilation expert etc. The parties may take depositions by agreement but the depositions are 

limited to expert witnesses and fact witnesses regarding any finding of unwarrantable failure, 

failure to abate, imminent danger, or other matter outside of a 104( a) citation with moderate 

negligence. The parties may discuss settlement at any time and as many times as they deem 

appropriate, not only for purposes of settling but for purposes of narrowing the issues for trial. 

The parties are encouraged to narrow the issues for trial and provide a list of specific matters to 

be decided at hearing. The parties may be notified that certain matters will be decided on the 

record and will be given the opportunity to present case law or preheating statements prior to or 

at the hearing. 

32 FMSHRC Page 743 
If the cases do not settle on or before August 20, 2010, the parties, by that date, shall send 

to each other.and to me, a list of witnesses who may testify (subject to the limitations contained 

in 29 C.F.R 2700.62, a miner witness), along with their address and position and a brief synopsis 

of their testimony, a list of expert witnesses and their area of expertise and expected testimony, a 

list of exhibits which may be introduced, and matters to which the parties 

can stipulate at hearing. Petitioner shall label exhibits numerically and Respondent, 

alphabetically. 

Distribution: 

Lucy Chiu, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd. 

2200 Floor West, Arlington, VA 22209-2247 

Carol Ann Marunich, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd. Suite 310 

Morgantown, WV 26501 

/ate 

32 FMSHRC Page 744 

G:D' U.S. GOVERNMENT PRINTING OFFICE: 2010---358-021/83803