January 2012
 

TABLE OF CONTENTS
 

COMMISSION DECISIONS AND ORDERS
 

1-18-2012 MOOSE LAKE AGGREGATES, LLC LAKE 2011-625-M Page 1
 

1-18-2012 BRESEE TRUCKING CO., INC. VA 2011-579 Page 6
 

1-20-2012	 JAMES RIVER COAL SERVICE KENT 2010-18 Page 10
 

COMPANY
 

Page 14 1-20-2012 NORTH MONTGOMERY MATERIALS, SE 2009-564-M
 

LLC
 

1-20-2012 GEORGE REED, INC. WEST 2010-444-M Page 18
 

DELAWARE CORPORATION
 

1-24-2012 ADELMAN SAND & GRAVEL, INC. YORK 2010-228-M Page 21
 

1-31-2012 STARR AGGREGATES, LLC CENT 2011-1242-M Page 24
 

1-31-2012 LAYNE CHRISTENSEN COMPANY OF WEST 2011-1530-M Page 27
 

ADMINISTRATIVE LAW JUDGE DECISIONS 

1-03-2012 JIM WALTER RESOURCES, INC. SE 2011-477-R Page 31
 

1-04-2012 BIG RIDGE, INC. LAKE 2009-325 Page 63
 

1-05-2012 EXCEL MINING, LLC KENT 2008-1481-R Page 99
 

1-05-2012 BIG RIDGE, INC. LAKE 2010-160 Page 119
 

1-05-2012 NEWMONT USA LIMITED WEST 2010-652-RM Page 146
 

1-09-2012 HIGHLAND MINING COMPANY, LLC KENT 2010-1239 Page 166
 

1-09-2012 CEMEX CONSTRUCTION MATERIALS SE 2011-72-M Page 170
 

OF FLORIDA, LLC.
 

1-10-2012 STATE OF ALASKA, WEST 2008-1490-M Page 179
 

DEPT. OF TRANSPORTATION
 

1-11-2012 GRAVEL PIT COMPANY CENT 2011-76-M Page 191
 

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1-18-2012 MACH MINING, LLC LAKE 2009-395-R Page 198
 

1-18-2012 BUCKINGHAM COAL COMPANY LAKE 2011-584 Page 220
 

1-18-2012 VINDEX ENERGY CORPORATION YORK 2011-185 Page 223
 

1-20-2012 BACHMANN SAND & GRAVEL CENT 2010-323-M Page 226
 

1-24-2012 LAKEVIEW ROCK PRODUCTS WEST 2009-1455-RM Page 244
 

1-25-2012 GRANITE ROCK COMPANY WEST 2009-168-M Page 261
 

1-27-2012 BLACK PANTHER MINING, LLC LAKE 2011-34 Page 273
 

1-31-2012 PINE RIDGE COAL COMPANY, LLC WEVA 2008-1623 Page 291
 

ADMINISTRATIVE LAW JUDGE ORDERS 

1-3-2012 SECRETARY OF LABOR o/b/o KENT 2011-1379-D Page 311
 

CHARLES SCOTT HOWARD vs. 

CUMBERLAND RIVER COAL COMPANY
 

1-10-2012 ROCK N ROLL COAL COMPANY WEVA 2011-862 Page 319
 

1-18-2012 MORTON SALT DIVISION / MORTON LAKE 2010-968-M Page 327
 

INTERNATIONAL INC.
 

1-18-2012 ARCH MATERIALS LLC LAKE 2011-189-M Page 330
 

1-19-2012 CONSHOR MINING, LLC KENT 2008-562 Page 333
 

1-20-2012 WOLF RUN MINING, CO. WEVA 2008-1265 Page 337
 

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Review was granted in the following case during the month of January 2012:
 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 2011-407-R. (Judge
 

Miller, December 22, 2011)
 

Review was denied in the following cases during the month of January 2012:
 

Secretary of Labor, MSHA, on behalf of Cindy Clapp v. Cordero Mining, Inc., Docket No.
 

WEST 2010-1773-D. (Judge McCarthy, December 5, 2011)
 

Secretary of Labor, MSHA v. Pattison Sand Company, LLC, Docket Nos. CENT 2012-137-RM
 

and CENT 2012-138-RM.. (Judge McCarthy, December 13, 2011)
 

Jason Turner v. National Cement Company of California, Docket No. WEST 2006-568-DM.
 

(Judge Bulluck, December 21, 2011)
 

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COMMISSION DECISIONS AND ORDERS
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 18, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. LAKE 2011-625-M 

v. : A.C. No. 20-03081-241408 

: 

MOOSE LAKE AGGREGATES, LLC : 

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

ORDER 

BY: Duffy, Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) (“Mine Act”). On May 2, 2011, the Commission received from Moose Lake 

Aggregates, LLC (“Moose”) a motion made by counsel seeking to reopen a penalty assessment 

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

30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Moose’s president, Kenneth Smith, asserts that his administrative assistant routinely paid 

proposed assessments without his specific knowledge. Moose states that it had never contested 

citations, and always paid them routinely. In addition, Moose states it was unaware that section 

104(d) citations were of a more serious nature and could potentially trigger prosecutions under 

section 110(c). Moreover, Moose asserts that unless the requested relief is granted, the mine 

could be placed under MSHA’s ‘excessive history of violations’ scheme. 

The Secretary opposes the request to reopen and notes that the routine payment of 

assessments is insufficient to justify reopening. The Secretary contends that the operator’s 

procedures for processing proposed assessments were inadequate because there was no 

procedure for reliably determining whether the operator wished to contest the proposed 

assessment. In addition, the Secretary states that ignorance of the law is not a basis for 

reopening under Rule 60(b).1 Moreover, the Secretary asserts that the prospect of significant 

consequences, such as an excessive history of violations, militates against reopening since it 

calls for increased care in properly processing proposed assessments. 

On September 28, 2011, the Commission sent Moose a letter asking it to explain why it 

failed to timely contest the proposed assessment, why it filed its request to reopen more than 30 

days after discovering that the assessment was not timely contested, and what office procedures 

were implemented to prevent such failure in the future. In response, Moose asserts that the 

proposed assessment arrived at the offices of Kenneth Smith, Inc., a distinct business from 

Moose. The administrative staff at Kenneth Smith, Inc. was instructed to pay all invoices as they 

arrive, and was not aware of the proper manner in which to contest MSHA citations. Moose’s 

president, Kenneth Smith, instructed his employees to contest future proposed assessments and, 

from then on, send all MSHA invoices directly to him. 

The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 

1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining 

Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 

(Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). In this case, we 

conclude that the lack of any procedure to determine whether the proposed assessment should be 

contested represents an inadequate or unreliable internal processing system. Sloss Indus., Corp. 

v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs v. Air Canada, 810 F. 2d 1529, 1537 

(11th Cir. 1987). We also note that it is the operator’s responsibility to make sure that its 

employees receiving mail at its address of record are properly instructed regarding the 

significance and correct processing of MSHA correspondence. 

1

 We note that since the Secretary assured the operator she will not argue that the 

operator’s failure to contest the proposed assessment estops its agents from litigating any aspect 

of the underlying violation if a subsequent section 110(c) proceeding is initiated, we do not find 

it relevant for our consideration. 

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Moreover, 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 the date the 

proposed assessment became a final order of the Commission and the operator’s filing of its 

motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8,11 (Jan. 2009); Highland 

Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009). Here, the operator asserts that the proposed 

assessment became a final order of the Commission on January 19, 2011, but fails to provide an 

explanation for filing its motion to reopen more than three months later, on April 29, 2011. 

Furthermore, the operator’s second motion to reopen the remaining citations in proposed 

assessment. No. 000241408 was filed almost eleven months later, on December 7, 2011. 

Having reviewed Moose’s requests and the Secretary’s response, we conclude that 

Moose has failed to establish good cause for reopening the proposed penalty assessment, and 

deny its motions with prejudice. 

/s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

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Chairman Jordan, concurring and dissenting: 

The proposed penalty assessment for Citation No. 6504472 was not received at the mine. 

Rather, it arrived at the offices of Kenneth Smith, Inc. Kenneth Smith is the president of Moose 

Lake Aggregates, LLC, but Kenneth Smith, Inc. is a separate corporate entity. 

The administrative staff at Kenneth Smith, Inc. had previously been instructed to 

immediately pay all bills. The affidavit of Trudy Petersen states that she thought the proposed 

penalty assessment was a bill, and she paid it pursuant to these instructions. In my view, this 

constitutes a mistake which, under Rule 60(b), should serve as a basis to reopen this final order. 

See Kaiser Cement Corp., 23 FMSHRC 374 (Apr. 2001) (granting request to reopen a penalty 

assessment when the operator inadvertently paid two proposed penalties, and citing cases). 

Moreover, as my colleagues acknowledge, the operator states in its revised motion to reopen that 

now all MSHA invoices are sent directly to Kenneth Smith “in an effort to avoid a future 

administrative mistake resulting in a missed filing deadline.” 

In light of the above, I would grant relief and reopen this final order. However, I agree 

with my colleagues that the operator’s second motion to reopen the remaining citations, which 

was filed almost eleven months after it became a final order, should be denied. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

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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 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 18, 2012

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. VA 2011-579

 ADMINISTRATION (MSHA) : A.C. No. 44-07251-247562 

: 

v. : Docket No. KENT 2011-1310 

: A.C. No. 15-18241-247495 

BRESEE TRUCKING CO., INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On July 28, 2011, the Commission received from Bresee 

Trucking Co., Inc. (“Bresee”) two motions 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 (May 1993) (“JWR”). In evaluating requests to 

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

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

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

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

1

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

consolidate docket numbers VA 2011-579 and KENT 2011-1310, both captioned Bresee 

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

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

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

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

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

The record indicates that the proposed assessments were delivered on March 28, 2011, 

and became final orders of the Commission on April 27, 2011. Bresee asserts that it was not 

aware of the proposed assessments until after the 30 day time limit to contest had expired. 

Bresee states that the proposed assessments were mailed to “Rd # 708 Seminary,” while Bresee’s 

address of record is “P.O. Box 560.” 

The Secretary opposes the requests to reopen and notes that MSHA’s assessment center, 

Wilkes-Barre, PA, received specific mailing instructions from Bresee on October 29, 2008, to 

use the “Rd # 708 Seminary” address. The Secretary provided a copy of these mailing 

instructions. The Secretary states that the proposed assessments were mailed to “Rd # 708 

Seminary” by FedEx on February 25, 2011, and were returned undelivered. The proposed 

assessments were mailed again to the same address by the U.S. Postal Service, certified mail, and 

were signed for by Hillis Bresee on March 28, 2011. Moreover, the Secretary asserts that this 

same address has been used by MSHA for mailing all proposed assessments since 2008, and 

Bresee has been receiving, and contesting, these proposed assessments. Therefore, the Secretary 

states that the operator has failed to adequately explain why the proposed assessments should not 

be considered to have been properly served. 

On September 28, 2011, the Commission sent Bresee a letter asking it to identify how 

and when it discovered that the penalties were not timely contested, what office procedures were 

implemented to prevent such failure in the future, and respond to the Secretary’s assertions 

regarding Bresee’s address of record. In response, Bresee asserts that it maintains a mailbox at 

the local post office and has also publicized a physical address, which has no mailbox, for 

special delivery services, such as FedEx. Bresee further states that these proposed assessments 

were actually delivered to another mailbox, not assigned to Bresee. 

The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 

1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining 

Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 

(Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). It is the operator’s 

responsibility to maintain an accurate address of record with MSHA, and notify MSHA within 

30 days of any changes to its information. 30 C.F.R. §§ 41.10, 41.12. In this case, the address 

provided by the operator in 2008, which it now claims to be only for FedEx deliveries, returned 

mail as undelivered by FedEx. At the same time, Bresee’s owner has been signing for U.S. 

Postal Service mail at this same address, which it now claims has no mailbox. We conclude that 

the operator’s lack of procedure to follow up on received mail and determine whether and when 

proposed assessments should be contested represents an inadequate or unreliable internal 

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processing system. Sloss Indus., Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs 

v. Air Canada, 810 F. 2d 1529, 1537 (11th Cir. 1987). We also note that this type of failure 

appears to be part of a pattern for Bresee, as shown by its previous motions to reopen five 

penalty assessments which had become final orders of the Commission due to unsuccessful 

delivery attempts, where the Secretary and the Commission urged Bresee to keep MSHA 

informed of its address of record. Bresee Trucking Co., Inc., 31 FMSHRC 804, 805 (Jul. 2009). 

Having reviewed Bresee’s requests and the Secretary’s responses, we conclude that 

Bresee has failed to establish good cause for reopening the proposed penalty assessments, and 

deny its motions with prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Michael D. Clements 

Representative 

408 A Manor Drive 

Kingsport, TN 37660 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 20, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. KENT 2010-18 

v. : A.C. No. 15-19206-196010 

: 

JAMES RIVER COAL :

 SERVICE COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On September 12, 2011, the Commission received from 

James River Coal Service Company (“James River”) a motion seeking to reopen a penalty 

assessment proceeding and relieve it from the order of default entered against it. 

On March 15, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of 

Default in response to James River’s failure to answer the Secretary’s November 17, 2009 

Petition for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 

30 days or it would be in default. The Commission did not receive James River’s answer within 

30 days, so the order of default became effective on April 15, 2011. 

James River asserts that it never received the Secretary’s Petition for Assessment. The 

Secretary does not oppose the request to reopen and notes that MSHA’s records contain an 

answer to the Penalty Petition filed on December 4, 2009. However, the answer does not 

indicate that it was also sent to the Commission, as instructed in the penalty petition. 

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The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final 

decision of the Commission. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable 

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

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if 

the defaulting party can make a showing of good cause for a failure to timely respond, the case 

may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., 

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

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Having reviewed James River’s request and the Secretary’s response, in the interest of 

justice, we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case 

is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Melanie J. Kilpatrick, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

3151 Beaumont Centre Circle 

Suite 375 

Lexington, KY 40513 

Thomas A. Grooms, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

211 7th Avenue North, Suite 420 

Nashville, TN 37219 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 20, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. SE 2009-564-M 

v. : A.C. No. 01-03132-184779 

: 

NORTH MONTGOMERY :

 MATERIALS, 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 September 15, 2011, the Commission received from 

North Montgomery Materials, LLC (“North Montgomery”) a motion seeking to reopen a penalty 

assessment proceeding and relieve it from the order of default entered against it. 

On December 7, 2010, Chief Judge Lesnick issued an Order to Show Cause and Order of 

Default in response to North Montgomery’s failure to answer the Secretary’s July 9, 2009 

Petition for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 

30 days or it would be in default. The Commission did not receive North Montgomery’s answer 

within 30 days, so the order of default became effective on January 7, 2011. 

North Montgomery asserts that it submitted a timely answer to the Secretary’s Petition 

for Assessment and did not receive the Order to Show Cause. The Secretary does not oppose the 

request to reopen and notes that the Atlanta Regional Solicitor’s Office indicated that the 

operator’s answer was timely received by the MSHA Birmingham District Office on July 16, 

2009. However, the answer does not indicate that it was also sent to the Commission, as 

instructed in the penalty petition. 

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The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final 

decision of the Commission. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable 

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

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if 

the defaulting party can make a showing of good cause for a failure to timely respond, the case 

may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., 

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

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Having reviewed North Montgomery’s request and the Secretary’s response, in the 

interest of justice, we hereby reopen the proceeding and vacate the Order of Default. 

Accordingly, this case is remanded to the Chief Administrative Law Judge for further 

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

2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
	

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
	

/s/Michael G. Young 

Michael G. Young, Commissioner
	

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
	

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

34 FMSHRC Page 16

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Distribution: 

Brad H. O’Dell, Owner 

North Montgomery Materials, LLC 

P.O. Box 469 

Millbrook, AL 36054 

HARDROCKHILL2@AOL.COM 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 17

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 20, 2012 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

:

:

 ADMINISTRATION (MSHA) : 

: Docket No. WEST 2010-444-M 

v. : A.C. No. 04-04932-204359 

: 

GEORGE REED, 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 September 21, 2011, the Commission received from 

George Reed, Inc. (“Reed”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the order of default entered against it. 

On March 21, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its 

terms became an Order of Default if the operator did not file an answer within 30 days. This 

Order to Show Cause was issued in response to Reed’s failure to answer the Secretary’s 

February 19, 2010 Petition for Assessment of Civil Penalty. 

Reed asserts that it filed a timely response to the Show Cause Order, and provides a 

certified mail receipt signed by the Docket Office on April 22, 2011. The Secretary does not 

oppose the request to reopen, but notes that the penalty petition was mailed to the address of 

record but returned unclaimed. 

34 FMSHRC Page 18

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Having reviewed Reed’s request and the Secretary’s response, in the interest of justice, 

we conclude that Reed was not in default under the terms of the Show Cause Order, as it timely 

complied with the Order. Accordingly, this case is remanded to the Chief Administrative Law 

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

29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 19

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Distribution: 

Gregory Reed, General Mngr. 

George Reed Inc. 

P.O. Box 4760 

Modesto, CA 95352 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 24, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. YORK 2010-228-M 

v. : A.C. No. 06-00274-215780 

: 

ADELMAN SAND & GRAVEL, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 9, 2011, the Commission received from Adelman 

Sand & Gravel, Inc. (“Adelman”) a motion seeking to reopen a penalty assessment proceeding 

and relieve it from the order of default entered against it. 

On March 16, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its 

terms became an Order of Default if the operator did not file an answer within 30 days. This 

Order to Show Cause was issued in response to Adelman’s failure to answer the Secretary’s 

June 7, 2010 Petition for Assessment of Civil Penalty. 

Adelman asserts that it filed a timely response to the Show Cause Order, and provides a 

certified mail receipt signed by the Docket Office on March 30, 2011. The Secretary does not 

oppose the request to reopen, but notes that there is no record that MSHA received a copy of the 

answer. 

34 FMSHRC Page 21

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Having reviewed Adelman’s request and the Secretary’s response, in the interest of 

justice, we conclude that Adelman was not in default under the terms of the Show Cause Order, 

as it timely complied with the Order. Accordingly, this case is remanded to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 22

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Distribution:
 

Seymour Adelman
 

Adelman Sand & Gravel, Inc.
 

34 Bozrah St.
 

Bozrah, CT 06334
 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 31, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. CENT 2011-1242-M 

v. : A.C. No. 41-03140-254737 

: 

STARR AGGREGATES, 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 September 20, 2011, the Commission received from Starr 

Aggregates, LLC (“Starr”) a motion seeking to reopen a penalty assessment that had become a 

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

The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34 FMSHRC Page 24

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

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

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

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

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

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 25

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Distribution: 

Melba Guerra-Reynolds 

Starr Aggregates, LLC 

P.O. Box 303 

Grulla, TX 78548 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 26

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

January 31, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. WEST 2011-1530-M 

v. : A.C. No. 26-01962-255871 

: 

LAYNE CHRISTENSEN COMPANY OF :

 DELAWARE 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 September 27, 2011, the Commission received from 

Layne Christensen Company of Delaware Corporation (“Layne”) a motion submitted by counsel 

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

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose 

the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

34 FMSHRC Page 27

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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 Layne’s request and the Secretary’s response, in the interests of justice, 

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

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

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

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

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner 

34 FMSHRC Page 28

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Distribution: 

Charles P. Keller, Esq. 

Snell & Wilmer, LLP 

One Arizona Center 

400 East Van Buren Street 

Phoenix, AZ 85004-2202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 29

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34 FMSHRC Page 30
ADMINISTRATIVE LAW JUDGE DECISIONS 
 

 

 

 

 

 

 

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

601 New Jersey Avenue, NW, Suite 9500
 

Washington, DC 20001-2021
 

Telephone No.: 202-434-9933
 

Telecopier No.: 202-434-9949
 

January 3, 2012 

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING

 Contestant : 

v. : Docket No. SE 2011-477-R

 : Citation No. 8519555;04/26/2011

 :

 : Docket No. SE 2011-478-R

 : Citation No. 8519556;04/26/2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : Mine No. 7 

Respondent : Mine ID 01-01401

 :

 : 

DECISION 

Appearances: David Smith, Esq., Maynard Cooper & Gale, PC, Birmingham, Alabama 

for the Contestant

 Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, 

Atlanta, Georgia for the Respondent. 

Before: Judge Moran 

In this proceeding under the Mine Act, Contestant Jim Walter Resources, Inc. (“JWR”) 

maintains that Order Nos. 8519555, 8519555-01, and 8519555-02 should be vacated on the 

grounds that they were “unlawful, unconstitutional, and products of MSHA’s abuse of 

discretion.” JWR Brief at 1.1

 For the reasons which follow, JWR’s various claims are rejected 

and its Contests in these matters are DISMISSED. 

It is JWR’s assertion that “the Secretary’s orally and remotely issued § 103(j) order and 

its subsequent automatic modification into a § 103(k) order were unlawful under the Mine Act.” 

Id. at 1. JWR contends that (j) orders “can only be issued when rescue and recovery work is 

necessary, and [neither was present] in this case.” Id. JWR describes MSHA’s practice of 

“blindly issuing a (j) order [which is then] automatically modified into a (k) order upon the 

1

 JWR’s post-hearing brief is entitled “Contestant’s proposed finding (sic) of facts and 

conclusions of law. For ease of reference it is referred to as “JWR Brief.” 

34 FMSHRC Page 31

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inspector’s arrival at the mine” to be without any “statutory basis” and it characterizes MSHA’s 

action as a “surreptitiously adopted protocol.” Id. at 2 (emphasis added). 

One might think, given the tenor of JWR’s initial contentions, that there would be no 

alternative stance but that is not the case. JWR’s second position is that, if MSHA’s actions 

could be viewed as its interpretations of the Mine Act, such interpretations would not be entitled 

to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837 (1984), (“Chevron”), because those interpretations arose as “procedures set forth in mere 

policy letters, [and such letters] lack the force of law.” Then, as a back up to its back up 

position, JWR adds that, even if the policy letters were eligible for Chevron deference, one 

cannot move to the deference issue because the “unambiguous language of §§ 103(j) and (k)” 

state Congress’ express intent. Id. at 2. Thus, by asserting that the plain language of those 

sections precludes any “deference” step, JWR circles back to its initial argument. 

JWR has other issues with MSHA’s action here because it contends that the “Secretary’s 

modification of the (j) order to a (k) order while a previously issued (k) [order] was still in place 

on the same area of the mine violated JWR’s procedural due process rights.” JWR’s theory is 

that MSHA should have modified the first, already existing, (k) order and not modified the (j) 

order to new (k) order. By doing this, JWR claims MSHA “denied JWR its statutorily granted 

right to challenge the scope of the second (k) [order].” Id. 

Last, JWR asserts that MSHA’s actions were “arbitrary and capricious” and, as such, an 

abuse of agency discretion. JWR says that is so because MSHA made no “rational connection 

between the facts of the accident and the drastic action it took against JWR.” Id. (emphasis 

added). Such “drastic action,” as JWR characterizes it, produced an order “whose scope and 

impact on the mine was grossly disproportionate to the scope of the problem.” Id. (emphasis 

added). 

Statutory provisions involved in this proceeding 

The full text of the sections of the Mine Act involved in this Contest provide as follows: 

Section 103 (j) Accident notification; rescue and recovery activities 

In the event of any accident occurring in any coal or other mine, the operator shall notify the 

Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence 

which would assist in investigating the cause or causes thereof. For purposes of the preceding 

sentence, the notification required shall be provided by the operator within 15 minutes of the 

time at which the operator realizes that the death of an individual at the mine, or an injury or 

entrapment of an individual at the mine which has a reasonable potential to cause death, has 

occurred. In the event of any accident occurring in a coal or other mine, where rescue and 

recovery work is necessary, the Secretary or an authorized representative of the Secretary shall 

take whatever action he deems appropriate to protect the life of any person, and he may, if he 

34 FMSHRC Page 32

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deems it appropriate, supervise and direct the rescue and recovery activities in such mine. 

30 U.S.C. § 813(j). 

Section 103 (k) Safety orders; recovery plans 

In the event of any accident occurring in a coal or other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he deems appropriate to insure the safety of 

any person in the coal or other mine, and the operator of such mine shall obtain the approval of 

such representative, in consultation with appropriate State representatives, when feasible, of any 

plan to recover any person in such mine or to recover the coal or other mine or return affected 

areas of such mine to normal. 30 U.S.C. § 813(k). 

Findings of Fact 

The Sequence of events: 

Mr. Jacky Shubert is presently a MSHA field office supervisor, a position he has held for 

the past 3 years.2

 In charge of nine employees, he directs the work force out of MSHA’s 

Bessemer field office. On March 25, 2011, Supervisor Shubert issued the (j) order, which is part 

of the subject of this Contest, at JWR’s Number 7 mine. Tr. 17. Shubert’s experience with the 

Number 7 mine is extensive. Tr. 18. Regarding the event in question, Shubert was contacted on 

March 25, 2011, receiving a phone call from Keith Plylar, who is the safety supervisor at the 

Number 7. Plylar told Shubert that there had been an ignition on the “Number 4 outby the face 

area [while they were] doing some burning and welding.” 3 Tr. 35. In reaction to that 

information, Shubert issued, verbally, to Plylar, a section 103 (j) order. Having issued that (j) 

order, the conversation with Plylar ended. Tr. 18. 

2

 Before his supervisory position, then inspector Shubert was a ventilation specialist and 

he has nearly 25 years of employment with MSHA. This included 10 years’ experience as a coal 

mine inspector. Tr. 15-16. 

3

 Shubert stated that in the past 15 months, he had personally issued approximately ten or 

so (j) orders for this mine. Shubert related that customarily when he has issued a (j) order to 

Plylar, he would state that he was issuing a (j) order on whatever section was applicable or 

wherever the accident occurred. Tr. 177. And Plylar would normally respond that he knew the 

rest. Tr. 177. In the past, when issuing such (j) orders to Plylar, Shubert stated that Plylar never 

took such an order as having the effect of shutting down the entire mine. Tr. 177. Nor, in this 

instance, when Shubert issued the (j) order in litigation in this proceeding, did that (j) order shut 

down the entire mine. Tr. 177. Further, when such (j) orders have been issued, mines have in 

some instances inquired for clarification by asking for example if the order would shut down a 

section of a belt or the entire belt. Tr. 178. Plylar asked no such questions of clarification in this 

instance. Tr. 178. 

34 FMSHRC Page 33

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Shubert then contacted MSHA inspector Joe Turner, directing him to go to the mine and 

investigate the matter. Tr. 18-19. Shubert advised that this (j) order was not the first he had 

issued to this mine, as he had issued about 25 such (j) orders in the last two years. Tr. 19. The 

majority, that is “probably 99 percent” of those (j) orders pertained to ignitions. Tr. 19. 

Government Exhibit 1 (“GX R 1”) is the written memorialization of Shubert’s orally issued (j) 

order, as issued later the same day, by Inspector Turner. Thus Turner reduced the oral (j) order 

from Shubert to writing. Tr. 20. Shubert explained that the ignition involved here was created 

by sparks from burning and welding activity. However, it should be realized that such sparks, by 

themselves, do not cause an ignition as there must be methane present too. Thus, the recipe 

involves both a spark and methane for an ignition to occur. Tr. 21. 

Added to that is the admitted fact that the Number 7 mine is one of the gassiest mines in 

the United States and it is the gassiest mine in all of MSHA’s District 11. In fact, the mine 

liberates some 20 million cubic feet of methane every 24 hours.4 Tr. 21. Underscoring the 

gravity of the inherent conditions at this mine, the Number 7 is under a “five-day spot” 

inspection. Any mine that liberates more than a million cubic feet of methane in 24 hours is 

under such a five-day spot inspection. Tr. 21. Thus, every day the Number 7 liberates twenty 

times the amount of methane needed for the five-day spot inspection requirement. Further, the 

face has to be checked every 20 minutes for methane. Tr. 22. 

In terms of “ignitions” Shubert stated that the Number 7 Mine had approximately 23 in 

the past 15 months. Tr. 23. Shubert then spoke to the “accident/injury report” that is within 

MSHA’s data base. The report, GX R 2, and referred to as a “7001,” is filled out by a mine 

operator whenever there is an accident, or injury or illness. Information from the report comes 

directly from the mine making the report.5

 Thus, the words employed in the 7001 are unfiltered. 

They are taken from the mine’s own reports to MSHA. Tr. 29. These reports are part of 

4

 As JWR witness Ty Olson, the underground manager at the east quarry for the Number 

7 mine, would later testify, he essentially agreed with that estimate, acknowledging that the 

Number 7 mine liberates “in the neighborhood of 17 million cubic feet per day of methane.” Tr. 

342. 

5

 Shubert, stated that each item on the left side of GX R 2 represents a separate event. Tr. 

57. For example, in that report, the first line refers to an ignition when a continuous miner was 

cutting coal. Tr. 24. During cross-examination, JWR pointed out that, for GX R 2, Shubert 

“controlled” the data he sought in the printout. Importantly, there was no contention that the 

data in that exhibit was false, just that Shubert put limits as to the scope of the data he was 

seeking. However, the fact that limits were used in the parameters of the data being sought does 

not dilute what the document undeniably shows: some 23 ignitions occurred at the Number 7 

mine in a 15 month period. Further, an “encyclopedic sized” retrieval of data, of the sort 

suggested by JWR as more informative, would not have added pertinent information, but rather 

would only serve to distract the focus from the subject being probed: the number of ignitions at 

this mine. 

34 FMSHRC Page 34

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MSHA’s regularly kept business reports. For this report, Shubert related that every one of the 

ignitions listed in it involved a spark contact with methane. Tr. 26. 

By statutory definition under the Mine Act, an “accident” includes a “mine ignition.” 

There is no dispute that a mine ignition occurred here.6 Though it sounds friendlier and more 

genteel, when, during the hearing, the witnesses or counsel referred to the “accident” at the 

Number 7, which generated this litigation, that term was used as a synonym for the “ignition” 

which occurred on March 25, 2011.7 See, Tr. 16-17. 

Affirming his earlier testimony, when Shubert issued the (j) order, he told Mr. Plylar that 

a (j) order was being issued. Plylar responded that he was aware of that. Shubert then explained 

the purpose of utilizing a (j) order. 

[W]hen an accident occur[s] at any coal mine[ ], . . . [MSHA] 

will preferably issue a (j) order, not knowing of the output 

of what’s going on at the mines, to preserve the evidence. 

And not knowing if the fire’s out or if they need any 

assistance at the mines until the inspector arrives and he 

will make that decision. 

Tr. 34. 

The (j) order itself is consistent with Shubert’s statement. It provided: 

An ignition has occurred on the no. 4 section (MMU-004) outby 

the last open crosscut where welding was being performed. This 

103(j) order is issued to protect the health and safety of the 

miners and to protect any evidence that would be pertinent to the 

ignition investigation. This order also prohibits all activity inby the 

feeder on the no. 4 section (MMU-004). This order was initially 

issued orally and has now been reduced to writing. 

Order No. 8519555 

According to Shubert, when he is informed that there has been an ignition, he recognizes 

that such an event could have caused an explosion and that it could still be burning. For that 

reason, MSHA issues a (j) to preserve the evidence at that time. Tr. 35. As to whether Plylar 

6

 An “ignition” is one of 12 such items listed under “accidents,” and this is set forth in 30 

CFR Part 50-2. Number 5 among those “dirty dozen,” as MSHA calls the 12 items, is an 

ignition of methane gas and dust. Tr. 37. 

7

 Shubert identified GX R 3 as the 7001 submitted by JWR after the March 25th ignition, 

which is the ignition in issue in this case. Tr. 31. 

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advised whether the flame from the ignition was out, Shubert initially could not recall, but then 

stated that Plylar did not so advise. Tr. 125. Shubert did acknowledge that in the majority of 

such calls, MSHA is told that the fire has been extinguished. Tr. 125. In the Court’s view, this 

is beside the point. First, what occurs in the majority of such past cases does not instruct the 

agency as to the proper course to be taken when a new ignition is reported. Second, and of 

greater importance, calls, such as the ignition report here, are relaying information. They are not 

being transmitted by one with firsthand knowledge. Plylar was relaying what someone else told 

him. Therefore, given the gravity that may be associated whenever an ignition occurs, it is 

prudent for MSHA to take steps to place all matters on hold until it has an inspector on the scene 

to personally observe, firsthand, the situation at the mine. 

Shubert also informed that, confronted with such information, this is MSHA’s only tool. 

That is, there is not some other order available at its disposal when faced with the report of an 

accident. There are no alternative orders to invoke. Tr. 35-36. Shubert reconfirmed this later: 

MSHA has no other tool other than to issue a (j) order when a call comes in advising of an 

ignition. Tr. 171-172. The Court finds this to be the fact. Significantly, in the context of the 

Agency’s mission of protecting miner safety and health, Shubert advised that if he had done 

nothing the mine would’ve been able to continue to mine with no new restrictions added, despite 

having had an ignition. Tr. 172. This state of affairs, that is, the issuance of a (j) order, may 

change, but not until the inspector actually arrives at the mine. At such time, the Inspector will 

reduce the (j) order to writing and then may issue a (k) order or any other order the inspector 

deems to be appropriate, either to preserve the area or conduct his investigation. Tr. 36. 

The Court inquired of Shubert as to why it is necessary to orally issue a (j) order 

immediately at the time it learns of an ignition. Inspector Shubert stated that this was done to 

“cease any operations, to stop any work so [MSHA] can go down and investigate and to - - that’s 

for the company to preserve all the evidence that they have.” Tr. 37. By issuing it verbally, that 

verbal instruction ceases operations immediately, or at least that is the intention by its issuance. 

Tr. 37. This is true whether the mine is mining coal or, as happened here, working by doing 

burning and welding. Tr. 37-38. It is also designed to address any risk of tampering with 

evidence. Tr. 38. 

To place MSHA’s conduct in context here, it is important to note that Supervisor Shubert 

called Inspector Turner immediately after the phone call from Plylar. Tr. 40. In that call to 

Turner, Shubert advised him that he had issued a verbal (j) order, and that the mine had an 

ignition.8 Tr. 49. He did not tell Turner that the mine was already under a (k) order, though 

8

 On cross-examination by JWR, an attempt was made to show that Shubert’s testimony 

was inconsistent with his deposition. While there were some inconsistencies between statements 

Shubert made during his deposition and statements he made at the hearing, the court assessed the 

credibility of Inspector Shubert’s explanation at the hearing and found it to be trustworthy. In 

short, Shubert repeatedly explained that many of the inconsistencies were based upon his 

(continued...) 

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8

(...continued) 

assertion that his testimony in his deposition was including information he learned after the 

ignition but before his deposition. Thus, his responses were impacted by what he learned 

subsequent to the ignition event. As an example, although JWR points to Shubert’s earlier 

deposition statement that he did know that the flame was out and that the event was over, 

Shubert explained that all his deposition testimony was based on what he learned after the fact. 

Tr. 128 - 130. Per the transcript at page 44, family health issues, the Court finds, could also 

explain some inconsistent remarks Shubert made during his deposition, but the more important 

point is that none of the various areas JWR Counsel delved into during Shubert’s deposition 

have any impact upon the issues before the Court. As just noted, Shubert, the Court finds, was a 

credible witness. Further, much of the cross-examination involved purely tangential matters, 

such as whether Shubert received the call about the ignition from MSHA’s “800” number or 

from his home. Several other aspects of the cross-examination dealt with non-issues, such as 

Shubert’s agreement that MSHA has provided inspectors with a “cheat sheet” to assist inspectors 

with what to write down when reducing the verbal (j) order to writing. Tr. 48. Such matters 

have no relevance to the matter before the Court: the legitimacy of MSHA’s issuance of the (j) 

order to JWR on March 25, 2011. Shubert agreed that after his call to JWR, his job was done. 

Tr. 47. Despite its many attempts to point out inconsistencies, JWR counsel later objected to the 

government’s questions upon redirect, which addressed the apparent inconsistencies between 

Shubert’s deposition and his testimony at the hearing. The Court did not buy into JWR’s 

objections. The key is that Shubert stated that he had no knowledge of what was actually 

happening at the mine at the time JWR’s Plylar called him. Tr. 187. This is undisputed, as 

Shubert was not at the mine. Responding once again to his apparent inconsistency between his 

deposition statement and his statements at the hearing, Shubert repeated that his deposition 

answers were based upon what he learned after the fact, that is, they were not reflecting what he 

knew when Plylar first made the call to him. This observation, while it escapes JWR, only 

makes sense, as not even Plylar knew the details of the circumstances surrounding the ignition, 

as he was not a firsthand observer either. Plylar was only echoing what he was told by another 

JWR employee. Tr. 189. While JWR tried to expand Shubert’s testimony concerning his 

conversation into a three act play, the fact is that the conversation between the two lasted only a 

minute or less. Tr. 192. Shubert also affirmed that the first word he received about the event 

came from Plylar, not from an 800 number call in advance of Plylar’s call. Tr. 192-194. This 

was Shubert’s position, even if he stated something different in his deposition and the Court 

finds Shubert to have presented a credible explanation and answer on this issue. 

Since JWR dwelled on the issue so much, the Court inquired about its theory, that 

somehow it really mattered in this case whether Mr. Shubert got the initial call from the 800 

number or from Mr. Plylar. Tr. 197. It is JWR’s position that MSHA had the escalation report 

and that the report informed it that there was a brief ignition, that the fire had been extinguished, 

that no one had died, and no injuries occurred, and no one was trapped. Tr. 197. From this, 

JWR is contending that Shubert knew exactly what the situation was and yet he issued his (j) 

(continued...) 

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Shubert knew that was the case.9

 In this regard Shubert stated that the mine had an ignition in 

the face area a couple of days before the ignition involved here. Shubert expressed that his 

intention with the (j) order in issue in this case was to freeze mine activity outby the feeder or at 

the feeder where the [continuous] “miner,” that is, where the continuous miner machine they 

were working on, was located. Tr. 49. As the “continuous miner” was at the feeder location, 

the ignition occurrence was not a face ignition. Consequently, the face area was not shut down 

by the (j) order at issue in this case. Tr. 50. 

In any event Shubert agreed that the data from Ex. R 2 (i.e. the 7001 accident/injury 

report) was considered by MSHA but not before the issuance of the (j) order. Rather, it was 

considered later when the (k) order was issued, supplanting the (j) order.10 Tr. 55. Shubert 

8

(...continued) 

order anyway. Tr. 198. Assuming only for the moment, that JWR’s version is accurate, the 

Court concludes that it could still be quite reasonable for MSHA to decide that a (j) still needs to 

be issued until the Agency gets feet on the ground by having an inspector present, right at the 

mine site. As the Court stated regarding this contention, “the agency has to act prudently” in 

these situations, and consequently, at the end of the day it really doesn’t matter which call came 

first. Tr. 199, 202. For the record, however, the Court wants to make clear that it found 

Shubert’s testimony at the hearing and his explanation for inconsistencies, to be credible. 

9

 JWR moved to have its Exhibit 23, the “Escalation Report,” admitted into the record. 

Tr. 203-204. Supervisor Shubert agreed that the Exhibit is the report his office received before 

he issued his (j) order but all it shows is that the Agency received a 1- 800 call from Mr. Plylar. 

Tr.205. More importantly, as Supervisor Shubert made clear, the facts in the escalation report 

were not submitted to MSHA before the (j) order was issued. Tr. 205. As Shubert explained the 

process, an individual at MSHA types the report and if a call comes in at a given time, it may be 

20 minutes before people such as himself receive the report. Accordingly, Shubert reaffirmed 

that the first time he learned of the ignition was upon receiving the call from Plylar. Tr. 206. 

Thus, he stated, and the Court finds, that when he received that call from Plylar, Supervisor 

Shubert did not have the escalation report in front of him. Tr. 206. More importantly, the Court 

notes that, even if it were to assume JWR’s version of the events, that is, that Shubert had the 

Escalation Report when he received the call from Plylar, it would not matter in terms of 

assessing the appropriateness of the issuance of the (j) order. Tr. 207. The reason for this is 

plain. Faced with a report of an ignition, MSHA has the statutory leeway to issue a (j) Order 

immediately which order remains in place until it is able to have an inspector view the situation 

at the mine firsthand. It does not take much to imagine the rain of criticism that would fall upon 

the Agency were it to do nothing and impose no (j) order in the face of the report of an ignition, 

were a second, entirely preventable, ignition then to occur. Ignitions, by their nature, demand a 

serious and prompt reaction from MSHA. 

10 Accordingly, speaking to the third page of GX 1, Shubert agreed that reflects the 

modification which occurred on March 25, 2011 and that GX 2, with its list of ignitions at the 

(continued...) 

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agreed that MSHA maintains “event files” for each of those listed events. Tr. 58. If he had 

looked at each of those event files, he would have seen that there was an existing (k) order on the 

Number 4 section. However, that existing (k) order was “in the face area.” In contrast, the (k) 

order in this litigation was issued for the outby area. Tr. 58. Shubert acknowledged that he did 

not review the particulars of those listed ignitions. Tr. 60. 

Shubert stated that he did talk with Inspector Turner later the same day, that is, after he 

initially sent Turner to the mine.11 Despite the fact that Supervisor Shubert did not issue the (k) 

Order in this case, JWR still made efforts to ask him about its issuance. Tr. 120. In this regard, 

Shubert denied that he told inspector Turner that he was to change the (j) order to a (k) upon his 

arrival at the mine. Tr. 121. Rather, Shubert stated that the inspector, upon arriving at the mine, 

is to determine what appropriate order should be issued. Although Shubert stated that he could 

not recall if he stated to Turner that he was to issue a (k) order when he arrived at the mine, he 

did agree that under normal circumstances, the (j) will be converted to a (k) when the inspector 

physically arrives at the mine. Tr. 131-133. When JWR asked Shubert if a (k) order requires a 

mine emergency before one can be issued, the supervisor expressed that any accident could be an 

emergency, as the agency is not yet at the scene to see the situation firsthand. Tr. 137-138. 

Shubert did agree that for his District, District 11, based on his practice, a (j) order is issued 

when MSHA is not yet present at the mine and a (k) order may is issued after MSHA has 

arrived. Tr. 122. Although the (j) order temporarily stopped coal production on the Number 4 

section, JWR was able to continue to run coal on the longwall. Tr. 153. 

Even though the context of the report of an ignition inherently demands an immediate 

reaction from MSHA, as JWR would have it, a (j) order can only be employed by MSHA in a 

situation such as this only after a time consuming and deliberate process has first been 

10(...continued) 

mine, was something that he considered before imposing the requirement that is reflected on the 

third page of GX 1. Tr. 57. 

11 In this regard, Shubert agreed that he was aware of Mr. Turner’s investigtion and that 

Turner had a hand-held methane detector, referred to as a “spotter,” and that Turner collected 

methane evidence in the course of his investigation of the March 25, 2011 ignition at the 

Number 7 mine. Tr. 51-52. JWR delved into the methane readings as part of its larger argument 

that MSHA should not have issued the (j) order in the first place. As explained in the body of 

this decision, these points, in the Court’s estimation were all for naught, because the methane 

readings have nothing to do with the legitimacy of Shubert’s issuance of the (j) Order. Besides, 

use of the methane detector made sense. There had been an ignition, so it was prudent for 

Turner to measure methane levels when at the scene. However, as the Secretary correctly 

pointed out at the hearing, this proceeding is not about spotter data collected by Turner. Tr. 52. 

JWR was not cited for methane gas violations in this matter, nor is any section 104(d)(1) citation 

in issue in this proceeding. 

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employed.12 This view flies in the face of the provisions of (j) and (k) and the 800 number to 

reach MSHA when an ignition occurs. 

Continuing with its overarching theme, that MSHA must first establish a connecting link 

between the (j) order it issued here and the many previous (j) orders it issued to the Number 7 

mine in the past 15 months, the Court permitted JWR to lard the record with its details regarding 

the circumstances of the prior ignitions.13 Thus, JWR was permitted to go on about the set of 

event files, reflected by Exhibit 18, which provides details regarding the 23 “events” (i.e. 

ignitions) that are the subject of R 2. Tr. 70. 

While the Court permitted JWR to put such information in the record, it made it clear that 

it thought little of the contention. The Court expressed that while an examination of the 

preceding 23 events may be “interesting” in some sense, it informed counsel that it believed 

MSHA’s action could be sustained simply by looking at the particular event being challenged 

here. That is to say, in this Court’s view, it is not at all necessary to examine the circumstances 

of the prior 23 ignition events in order to uphold the (j) order in issue here. Rather, MSHA’s (j) 

12 JWR had Shubert go through the ignitions listed on Exhibit R 2, beginning with 

January 12, 2010. Through that process, Inspector Shubert confirmed that no victims, injuries, 

or property damage was involved with that first listed date. Tr. 61. Shubert agreed that the same 

conclusions would be reached as to the ignitions listed in that exhibit. Tr. 61-68. However, 

some questions relating to the details of these many other ignitions could not be answered by 

Shubert based on that exhibit. For example, he could not state that there was no contributory 

citation found by MSHA for one; for another, he could not determine (again based on the exhibit 

before him) if a particular accident occurred on the Number 8 section face. That exhibit did not 

reveal the location in the mine for that event. Tr.63-64. Therefore, to answer such a question, he 

would need to review the underlying reports to determine the location. Shubert also qualified his 

answers as to the particulars surrounding individual ignitions by advising that he was speaking 

from memory as opposed to information contained in the exhibit. Therefore, it was his memory 

that there were no accidents or fatals during that time period. Tr. 65. He agreed that he didn’t 

check into such underlying details from those prior ignitions when he modified the (k) order. Tr. 

66. Instead, Shubert felt, and the Court agrees, that it was sufficient just to know that the mine 

had that number of ignitions during that period of time. 

JWR counsel challenged Shubert to name an instance of an ignition in the 15 months 

preceding the ignition in issue here in which there was any violation found to have contributed to 

the ignition. Tr. 67. Shubert could not name an instance. Though he believed that there would 

be such associated events, he could not point to one. Tr. 67. Shubert did agree, however, that 

none on the list of that exhibit involved an injury or property damage. Tr. 67. It bears emphasis 

that, as Supervisor Shubert saw it, an ignition is an ignition. The Court agrees. 

13 Even JWR’s Counsel admitted that MSHA’s action was prompted only “in part” 

because of the mine’s history, “among other things.” Tr. 71. 

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order action can be sustained by looking at the particular actions taken here. To express this 

another way, the Court stated that it can examine “that moment in time” to determine the 

appropriateness of MSHA’s action, and that the prior particular circumstances of those very 

many ignitions, good or bad, would not be determinative of the propriety of the issuance of the 

(j) or (k) orders here. The Court expressed further that the appropriateness can be determined 

based simply on the telephone call to Schubert and, focusing on that moment in time, 

notwithstanding the particulars of the ignition history. Tr. 72. 

Accordingly, referring to MSHA Inspector Shubert’s very limited role, the Court 

expressed that Shubert did what a responsible supervisor is supposed to do in such 

circumstances: dispatch an inspector to the mine to view the situation firsthand. Tr. 72. 

Though covered already, JWR counsel then revisited the same points, which points were 

not being contested in any event.14 Thus, Shubert repeated that there was no injury nor death in 

this instance and that he was not aware of any entrapment at the time he took the call from JWR. 

Tr. 77-78. However, Inspector Shubert also repeated his position that he was not aware one 

way or the other of such occurrences at the time he took the call from JWR.15 Thus, he 

emphasized that after the fact, he determined those things did not occur, but before the fact, that 

is, at the time he received the call, he did not know. Tr. 78, 92. The Court finds this to be the 

fact.

 Shubert agreed that no one told him that anyone had died. As to whether there had been 

any injury, he stated they never said “either/or.” It did not occur to him to ask if there had been 

any death, injury or entrapment. Tr. 79. More importantly, Shubert affirmed that when he 

receives a phone that there has been an ignition, he acts, adopting the Court’s characterization, in 

a “prophylactic” or “protective mode.” Tr. 81. Shubert expressed that a (j) order does more than 

14 Part of this included JWR’s raising contentions that were either irrelevant or 

immaterial. These included having Inspector Shubert read from the statutory provision for 

Section 103(j), seeking the witness’ interpretation of the provision. The Court explained that the 

meaning of the provision and its application to the facts established here were within the Court’s 

province, not a particular MSHA employee’s take on the matter. The Court further explained to 

Counsel for JWR that its examination of the witness should be confined to what Shubert heard, 

did and stated with regard to the events in issue. Tr. 77. Similarly, it simply does not matter that 

Shubert could not recall if he took a 1 800 number but only remembered that he spoke with 

Keith Plylar. Shubert referred to the former as an “escalation report” but noted that he doesn’t 

get those until “hours after the fact.” Tr. 79. 

15 As to whether he knew, when speaking with the JWR person who called to inform 

about the ignition, that the fire was out, Shubert stated that he did not recall. Tr. 80. As to 

whether there was any rescue or recovery work, he had the same response that “[a]fter the fact, 

no. But when I receive the phone call in the mornings, I don’t know if we need to deploy rescue 

or what.” Tr. 80. 

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protect against evidence destruction, that it also seizes the area. Tr. 89. Shubert repeatedly 

expressed that MSHA issues the (j) order verbally because, at that point in time, they don’t really 

know what is going on at the mine where the ignition occurred. Tr. 93. As he more directly 

expressed the Agency’s reaction to an ignition, “We err on the side of safety.” Tr. 82. 

Significantly, as Shubert noted, he does not have firsthand knowledge at the time the call 

is received, “[a]nd the individual that makes the call doesn’t have firsthand knowledge [either].” 

This is so, because “they’re getting the message from underground that the individual has called 

them and said that we’ve had an ignition.” Tr. 82. In an abundance of fairness, the Court 

allowed JWR to rehash many previous questions and answers. Upon such re-asking, Shubert 

again stated that he did not know when he issued the (j) that there was no injuries or property 

damage. Tr. 126. Nor did he agree that he knew at that time that the event was over. And he 

denied that he knew there was no emergency when he issued the (j). Tr. 126. As noted, Shubert, 

possessing only third hand information, could not be sure of the situation. Even Plylar was only 

relaying what he was told by another. Shubert agreed that in every instance when he receives a 

call that there has been an ignition, he will then issue a 103(j). Tr. 83. As Shubert further 

stated, the (j) order is issued to “preserve the scene[] and to seize the area so the inspector can 

there and see if a rescue team is needed or what’s needed, and then he will issue the appropriate 

order.” Tr. 84. Thus, the Court expressed this approach as the Agency’s determination that it 

needs to have “boots on the ground” to accurately assess the situation attendant to the ignition. 

As Shubert put it, until its inspector is actually at the mine, it simply doesn’t know for sure what 

is going on there.16 Tr. 84. This is critical because an ignition deals with the deadliest 

occurrence in a coal mine; the ignition of methane. Making matters potentially graver, it must 

not be forgotten that this mine is one of gassiest methane producers in the entire country. As the 

Court characterized it further, it is a better to have a safe rather than sorry approach to such an 

occurrence. Tr. 91. 

MSHA Coal Mine Inspector Joseph Turner was also called as a witness for the 

government. Tr. 210. Based upon his history of inspection activity at the mine, Inspector 

Turner is quite familiar with JWR’s Mine Number 7. Tr. 212-213. Turner related that 

Supervisor Shubert called his home around 6 a.m. on March 25, 2011 and told him to go to the 

Number 7 mine as there had been an ignition while miners were burning and welding.17 Tr. 213-

214. Turner then arrived at the mine around 7:30 a.m.18 Tr. 216, 218. Shown R 4, Turner 

16 In contrast, a (j) order issued after the inspector’s arrival serves the more limited 

purpose of ensuring that evidence is not destroyed. 

17 Though the significance of whether “burning” occurred was not explained, it did not 

alter the fact that there was an ignition. Apparently, though the record has conflicting statements 

on this, there was no burning. Tr. 245. Turner agreed that the welding was going on outby the 

face and that as far as he knew, no other welding activity was going on at the mine. Tr. 313. 

18 Turner calculated that he got to the mine about an hour and a half after he received the 

(continued...) 

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identified it as his notes from that day. Tr. 217. Inspector Turner related that when he arrived he 

noted there was no ambulance, rescue truck or fire truck present. Having made that observation, 

once he left his car he advised JWR management at the mine that he would be modifying the (j) 

to a (k).19 Tr. 223. Accordingly, the modification to the oral (j) was done before Turner 

interviewed the first miner. Tr. 225. 

It was Inspector Turner’s recollection that he then first spoke with either John Connellan, 

the mine’s safety supervisor, or possibly with Keith Plylar. The more important point is that he 

informed that he was modifying the (j) to a (k).20 Tr. 219-220. Turner stated that the 103(k) shut 

down activity inby the feeder on the Number 4 section, with the “feeder” being the loading point 

where the coal travels before it hits the conveyor belt. Tr. 243-244. Turner agreed that JWR’s 

history of ignitions was part of the discussion he had with Shubert on modifying the (k) order. 

Tr. 283. Turner reaffirmed that his (k) order was issued before he went underground at the mine. 

Tr. 309. The sequence of the orders was that the (j) was modified to a (k), with the latter 

occurring shortly after Turner arrived at the mine and then at 3 p.m. the (k) was modified after he 

came out of the mine at which point the training requirement was imposed. Tr. 310. 

18(...continued) 

call about the ignition. Tr. 254. JWR Counsel described the time as “over two hours” before 

the (j) was modified to a (k) order. Turner, based on his notes, calculated the time of 

inconvenience to the mine at 1 hour 50 minutes. Under either computation, this seems to the 

Court like a small amount of time, given the deadly mix of a mine that releases such vast 

amounts of methane daily and has a penchant for routine ignition occurrences. 

19 JWR’s Counsel attempted to characterize testimony and then proceed as if the 

characterization was testimony itself. As one example, when JWR Counsel asserted that 

changing the (j) to a (k) didn’t change anything, the Court stated that was not a “fair 

characterization.” Tr. 266. In this regard, the Court observed, “It seems to [the Court] that when 

[the inspector] gets there he doesn’t just write with a blindfold on, [essentially stating] [“] 

[O]kay, let me just put [a] (k) here. No. He looks around and based on his experience he 

concludes that we don’t have a need to keep the (j).” Tr. 266. The Court continued, “Now, 

[JWR] might say, well, he should have investigated further if he really was concerned. But, in 

any event, he makes the judgment, but it isn’t [done] blind[ly]. He makes a judgment based on 

what he doesn’t see. He doesn’t see a rescue truck there, he doesn’t see, you know, this or that 

there. He sees that things seem calm and so he changes it to a (k).” Tr. 266. Further, the Court 

observed, “But it isn’t that nothing has changed. Something changed, he arrived there. He’s [i.e. 

Inspector Turner] already testified . . . that had he seen inferentially - - he testified that had he 

seen a rescue team there or fire engines there, he probably would not have changed it to a (k). 

So, to say [as JWR’s Counsel did] that nothing changed I think is artful but inaccurate.” Tr. 266-

267 (emphasis added). This, to the Court, seems like a very reasonable reaction upon MSHA 

now being present at the mine site and it also seems eminently prudent. 

20 In any event, the (k) order was terminated after the training had been completed. 

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Turner also expressed that, upon being dispatched by Supervisor Shubert, his 

responsibility was to conduct an investigation. Tr. 220. Turner was advised by JWR 

management as to the miners who had witnessed the ignition. He interviewed those miners21 and 

after that was completed, he then went to the site of the ignition. Tr. 221. From his interviews, 

Turner learned that the flame varied from 2 inches to a foot and that it was extinguished with a 

wash down hose. Tr. 225. In the Court’s view, this demonstrates that MSHA was not going 

through the motions; that this was a genuine and serious investigation. 

Regarding gas tests, Inspector Turner expressed that some tests had been taken but “[t]hat 

the main one that was [his] concern [ ] had not been taken . . . .”22 Tr. 225. After first 

completing the required imminent danger run, Turner arrived at the continuous miner where the 

ignition occurred. Tr. 227. Part of his testimony concerning his observations at the underground 

location of the ignition, included methane readings he gathered.23 The methane readings were 

brought out by Counsel for the Secretary as background to explain Turner’s decision to later 

terminate the 103(k). Turner also described the location where he found the continuous miner, 

where he noted bubbling water on the mine floor. Based on his experience, this can mean that 

methane is bleeding out of the mine floor. Tr. 234. 

21 Seven miners were interviewed. Turner’s interview had each witness describe what he 

saw, the color of the ignition, how long it lasted, and if the miner assisted in putting the ignition 

out. 

22 As brought out by JWR Counsel, Turner did find, in reviewing JWR’s record books 

that day, that the mine “didn’t do adequate gas checks where they were required.” Tr. 255. In 

the Court’s view, this failure, though not the only reason, in itself can support the reasonableness 

of MSHA’s requirement for training. 

23 When Turner began testifying about his methane readings, JWR objected on the basis 

that the data behind the spotter had been lost or was otherwise unavailable. Tr. 229. The Court 

rejected JWR’s claim that MSHA lost its methane spotter notes from the date on purpose. 

Further, it notes that the issue is irrelevant to the issues in this proceeding, as JWR was not cited 

for an inadequate methane testing. In any event, the Court rejected JWR’s contention that it 

should not consider any of the methane readings Turner made because the underlying data was 

no longer available. Tr. 229-231. Given that ruling, Turner noted that he did record find one 

reading at 4.8 %. The ignitability range for methane is between 5 to 15 percent. Tr. 230-231. 

Further, when Inspector Turner tried to testify that the state mine inspector, Dale Johnson’s, 

methane detector went off, there was another objection. Tr. 236. Turner heard Johnson’s device 

sound and explained that meant a reading of over 1% methane was detected by the device. 

However, Turner never viewed the number reading from that alarm sounding. Tr. 237-240. 

The Court took the opportunity to express its view that whether methane readings indicated an 

issue or not, that data was not, in my view, determinative of the validity of the 103(j) order in 

issue here. Tr. 238-239. SOL attorney explained that these questions were being asked to 

explain, in part, the basis for MSHA’s requirement of training here, as JWR has alleged that the 

agency abused its discretion. 

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Turner affirmed that, prior to arriving at the mine, he knew no details about the ignition 

other than what Supervisor Shubert had told him. This amounted to being advised that there had 

been an ignition on the number 4 section involving welding activities. Tr. 246.24 Turner 

informed that Shubert simply told him two things: the mine had an ignition and that he, Turner, 

was needed to go to the mine and conduct an investigation of that event.25 Tr. 248. Turner did 

state, upon questions from JWR’s Counsel, that he would “imagine there wasn’t a fire ablaze 

because he [i.e. Shubert] would have said [that was the case], I would imagine, if he [ i.e. 

Shubert] knew.” However, these statements from Turner are not especially informative because 

they reflect that Turner was merely speculating when he said he “would imagine” what Shubert 

would have said and because the second aspect of his response reflects his view that Shubert 

may not have known what exactly was going on. 

Shubert did acknowledge that he conferred with Turner about the training that would be 

required, and that it would apply to every employee at JWR. He also agreed that when he issued 

the (j) order orally, only the maintenance crew was involved in the ignition. This training 

covered ignitions, firefighting, burning and welding and it took only about an hour to conduct it. 

Tr. 241-242. In terms of its content, to the Court, the training made sense, given the extensive 

ignition history at the mine. It also seemed to be a very modest price, considering the continuing 

24 Counsel for JWR made several attempts to demonstrate that Turner actually knew that 

there was no emergency at the Number 7, but Inspector Turner repeated that all he knew was 

what Shubert had relayed to him. The Court finds this to be credible. After all, Shubert only 

passed on the little he knew, and his information from Plylar was at best second hand itself. 

25 There were times when JWR counsel, in the face of answers he did not welcome, and 

upon trying the same question again, would face a ruling from the Court that the question had 

been answered several times. JWR Counsel would then try to place his own characterization on 

the testimony, as if his remarks were findings of fact about such testimony. “I hope that it’s a 

demonstrative (sic) [demonstrated] fact that it was converted to a (k) without new information.” 

Tr. 253. Unfortunately, that is not what the witness’ testimony demonstrated. Contrary to 

JWR’s depiction, Turner did indeed have new information: that of seeing, upon arriving at the 

mine, that no emergency type equipment had been assembled. That told him important 

information at that moment. It may not have been enough information in JWR’s eyes to warrant 

converting the (j) to a (k) order, but that does not mean that Inspector Turner was without new 

information when he modified the (j). As another example, in the context of revisiting topics 

already covered, JWR Counsel added his own characterizations to prior testimony, calling the 

ignition, for example, a “mere flame.” Tr. 318. The Court pointed out that JWR Counsel’s 

characterization of Inspector Turner’s testimony was “more than a stretch,” as Turner’s actual 

response was “Well, it wasn’t an explosion so that’s all it could be, was an ignition.” Tr. 320. 

The Court views this litigating approach as unfortunate because it attempts to recast testimony 

from the words that were actually used in a response. This is a transparent attempt to create 

testimony through Counsel and then see if the witness will buy into it. Thus “mere flame” was 

JWR counsel’s choice of words, not Inspector Turner’s. 

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ignition problems. Tr. 242. In making the determination, which the Court finds to be MSHA’s 

determination to make, not JWR’s, Shubert stated that he conferred with Inspector Turner and 

with others in the agency, including Shubert’s superiors. Tr. 157. At any rate, Shubert stated 

that it was a discussion between Turner and him, not an edict on Shubert’s part, because it was 

Turner who was present at the mine. Tr. 158. Critically, Shubert stated that if Turner had elected 

to train less than the entire mine, he would have permitted that. Tr. 161. As Shubert elaborated, 

it was the large number of previous ingitions, 23 at this mine, that brought about the broad action 

of requiring training for all miners. Tr. 162. 

It is fair to state that the Contestant’s case began with what the Court viewed to be as 

irrelevant matters. Its first witness, Mr. Mike Parris, is a paralegal with Walter Energy’s legal 

department. Mr. Parris collected data from the spotters used by the supervisor and welder on 4 

section during March 2011. Tr. 324. Those spotter readings represent atmospheric readings 

during the time in question. JWR proposed exhibits 15 & 16. Parris’ role for these exhibits was 

solely to authenticate those potential exhibits. Tr. 326. 

Upon Counsel for JWR affirming to the Court that the purpose behind its effort to have 

those records made part of the record, namely that “in some form or another [it is JWR’s stance 

that] the agency should have looked at [the spotter data] in [proposed exhibits] 15 and 16 before 

issuing the 103(k) or even the 103(j) before they acted[,]” JWR Counsel responded, “Yes, sir.” 

Tr. 330. The Court inquired of Mr. Parris if the readings in those potential exhibits identified the 

particular area where they were taken, and Parris he advised they did not. Tr. 329. The Court 

then ruled that proposed JWR Exhibits 15 & 16 were not admissible, as they were irrelevant. Tr. 

330. Of course, it is fair to comment that if the agency should have looked at all this data before 

it issued a (j) or (k) order, and if it really was as instructive about the inappropriateness of 

MSHA’s action, it would seem to follow that the ignition should never have happened. But, it 

did. 

Consistent with its view about all the steps MSHA should take before issuing (j) or (k) 

orders, despite the admitted fact of an ignition occurring, JWR then sought to have proposed 

Exhibit 19, a summary of the ignitions investigated by District 11 in the period from January 

2010 up to April 2011, and proposed Exhibit 18, a stand-alone binder that has 23 MSHA ignition 

event files in a complete form, both admitted. Tr. 332-334. 

By comparison, R’s Ex 2 is drawn from MSHA’s database and includes a short 

description of events reflected in JWR’s proposed Ex. 19, while proposed Exhibit 18 is the full 

document itself, not a summary. Tr. 335. The government objected to proposed JWR Exhibit 19 

as irrelevant, on the basis that the ignitions and the particulars of them are not in issue in terms of 

a 103(j) or (k). Tr. 336. Although the Court agreed that these exhibits are irrelevant and 

immaterial, it factored the likelihood that JWR will appeal the decision and, therefore, to aid any 

review, it decided to admit Exhibit 19, the summary, but not Exhibit 18.26 Tr. 337-339. 

26 Although the Court was ever mindful of providing any reviewing body with a more 

(continued...) 

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JWR’s next witness was Mr. Ty Olson. Olson is presently the underground manager at 

the east quarry for the Number 7 mine. Tr. 340-341. Directed to proposed JWR Exhibit 22, 

which is a map of the Number 7 mine, the witness identified the locations on it of the 23 

ignitions that were in the event file. Tr. 342. These location listings correlate to R’s Ex. 2; the 

JWR exhibit lists the first ignition from R 2 and it then labels the others consecutively. The 

numbers on the map also correspond to the numbers on JWR 19, the summary. As with the 

Court’s ruling admitting Exhibit 19, and despite finding that the information was neither relevant 

nor material to the issues in this case, Exhibit 22 was admitted, essentially for the benefit of any 

reviewing body, so that it could see for itself that the evidence was not pertinent to this 

proceeding.27 

26(...continued) 

than complete picture of JWR’s contentions, there were limits. Some JWR proposed exhibits 

were so far off the mark that they could not satisfy the lenient standard for admission of JWR’s 

proposed exhibits. One such example was proposed JWR Exhibit 20. This consisted of JWR 

notes from a meeting between MSHA and the mine about ignitions and plans that were 

submitted and approved for the operation of the Number 2 longwall and the Number 4 section. 

Tr. 361. It was JWR Counsel’s design to use the notes to show dialogue between MSHA and 

JWR. The dialogue JWR wanted admitted pertained to the day before the ignition in issue in this 

litigation and, for JWR, it reflects that MSHA’s focus up to then was all about “engineering 

changes and behavioral process-type changes in connection with mining coal at the face of the 

continuous miner sections and both longwalls.” Tr. 364. Therefore, JWR contended that the 

welding ignition was very different and MSHA should not have been able to consider those 

other, different, ignitions sources. Tr. 364. From this, JWR contends that MSHA abused its 

discretion. Apart from the obvious evidentiary issues of such purported “proof,” while JWR’s 

notes are consistent with its view that MSHA must finely distinguish the types of ignitions 

involved before acting in a particular ignition event, it is completely immaterial to the propriety 

of MSHA’s actions here. 

27 Although, again, the Court determined that the Exhibit 22 added nothing to the issues 

to be resolved, the following was included for the benefit of aiding anyone who may wish to 

examine it. The map represents all of the Number 7 mine. Tr. 350. The map would look 

different today because of additional mining. The witness identified the Section 4 as in the 

upper left portion of it, just above the letter L. Tr. 347. K, J are the designations for the 

longwall panels. Tr. 347. Olson stated that there are 3 colors on the map; white, green and 

yellow highlighted areas. The yellow highlights are A,B,C, etc and also E1, E 2 are in yellow. 

Tr. 348. The green areas all represent areas that have been sealed. Tr. 349. Turning to the area 

D through L, the witness confirmed those all represent active mining areas. Tr. 349. With the 

top of the Exhibit as L, moving down towards A, there has been additional mining and this 

mining has progressed beyond what is depicted on the map. Tr. 350. Olson stated that mining is 

progressing in an upward direction above the “L” and to the left. Tr. 351. He added that for E 1, 

E 2 and E 3, those are all active mining areas, which have progressed as well, moving down and 

(continued...) 

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JWR also drew attention to Ex 21, the MSHA (k) order dated March 23, 2011. Tr. 352. 

The government objected to the relevance of Ex 21 because it did not deal with the (j) or (k) 

orders in this case. Tr. 353. In any event, Olson stated that MSHA had a (k) order permitting 

the miners to perform maintenance on the miner. The miner’s drums were being changed 

because of an ignition that occurred two days earlier. Tr. 354. It is JWR’s apparent contention 

that because the ignition, occurring a mere two days before the one in this litigation, was a 

frictional ignition, whereas the ignition here was caused by a spark from welding, MSHA should 

have distinguished the ignition subsets. Tr. 355. Apparently, it is JWR’s position that MSHA 

should not have noticed the forest of ignitions and instead should have focused on the variety of 

trees in that accident forest.28 

JWR’s last witness, the only witness supplied by JWR who could offer relevant 

information about the ignition in issue here, was Chester Keith Plylar. Mr. Plylar is now a safety 

coordinator and safety director at the mine and he was working at the Number 7 mine on March 

25, 2011, arriving around 5:30 a.m. Tr. 369-370. That morning he received a call from the 

control room operator (“CO”) informing that “they had an ignition burning29 and welding on a 

miner head up on Number 4 section and that they had the ignition put out and that it lasted 

approximately a few seconds.” Tr. 370 (emphasis added). It is important to note that the CO’s 

call came from the control room, which is located on the surface. Tr. 370. Thus, not only was 

the information Plylar relayed to Shubert not firsthand from Mr. Plylar, even his source, the CO, 

was relaying what someone told him. In fact, the record does not reveal, one way or the other, if 

the information given from underground to the CO was from an eyewitness to the ignition either. 

In any event, Plylar stated that he was told that the ignition was out and that no one was 

injured and that this call to him came around 5:50 a.m. Tr. 372. Plylar then called the 1-800 

number to report the ignition. He reached a person, but could not remember that individual’s 

name, nor did he write it down. Following that call, Mr. Plylar called Mr. Shubert, reaching him 

around 6:00 a.m. Tr. 373. According to Plylar, Shubert told Plylar that “he was issuing a (j) 

27(...continued) 

to the right. Tr. 351. Again, the Court considered all of this to be immaterial. 

28 In an apparently related contention to its argument that MSHA should have examined 

the particulars of each ignition, JWR Counsel asserted that because, out of the 21 some ignitions, 

there were only 3 instances in which a violation resulted, MSHA has no business imposing minewide training. Tr. 360. However, the Court notes that the “violation and ignition” pairing which 

JWR would require, if it were MSHA, is not found in Congress’ expressed concerns about 

ignitions in section 103 (j) or (k). 

29 It appeared to the Court that Mr. Plylar had been well schooled when speaking about 

the ignition. As to the status of things after the ignition, Plylar remarked: “Basically that was the 

extent of it, that they was burning on the - - excuse me, welding on a miner head and that the 

ignition was out and lasted approximately a few seconds and no one was injured.” Tr. 375 

(emphasis added). 

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order at that time. Plylar knew the (j) order only applied to the affected area, that is, where “the 

actual welding was going on on the [continuous] miner.” Thus, he knew it did not apply to the 

entire mine. Tr. 385. Plylar at first stated that ended the call, but then added, “ . . . let me back 

up. Either he [i.e. Shubert] said that no work in the affected area or I told him, I said we will not 

do any work in the affected area.” Tr. 376. (emphasis added). 

Plylar also stated that he was familiar with the second modification of the (k) order, in 

which MSHA required training.30 Tr. 376. In fact, he typed up the outline for the training, 

noting that it included going over “the ignition preventions and all that with them and things to 

look at.” Tr. 377. (emphasis added). Thus, the Court observes, at least Plylar recognized that it 

is not about classifying ignitions and grouping sources of ignitions, as JWR would have it, but 

rather that the idea is the prevention of ignitions. As to whether any of the training dealt with 

welding underground, Plylar affirmed that it did, “Yes, it was addressed as . . . either a PIL or a 

PIB from MSHA about taking methane checks next to the mine roof, rib, of the floors.” Tr. 377. 

The training also spoke to those things to do “to prevent any type of ignitions.” Tr. 378. 

(emphasis added). 

DISCUSSION 

Plain Meaning and Deference to Secretarial Interpretation of the statutory provisions. 

The formula for statutory interpretation in this context is well understood. Per the 

Chevron formulation, one first examines the plain meaning of the statutory terms but, if the 

conclusion is that the answer is not clearly revealed by that process, the interpretation made by 

the agency charged with enforcement of the act is given deference. 

Although the “plain meaning” analysis is the first step in interpreting a statute, that 

process is not robotically applied. Accordingly, the plain meaning rule “does not prohibit a court 

from determining whether the literal meaning of a statute comports with its purpose or whether 

such a construction of one provision is consistent with other provisions of the statute.” Credit 

Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1127 C.A.9 2005, citing, Lungren v. 

Deukmejian, 45 Cal.3d 727, 248 Cal.Rptr. 115, 755 P.2d 299, 304 (1988). Thus, “[t]he intent 

prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the 

act.” Id. 

30 In another example of what the Court viewed as immaterial and irrelevant information, 

Contestant’s Ex 17, the Task Training form, was still admitted. MSHA required the training, as 

discussed in this decision, but it did not require JWR to provide the forms, as proof that the 

training was conducted. MSHA only asked to see the training outline. JWR provided the forms 

anyway. Tr. 380- 381. 

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This approach was echoed in Meredith v. Federal Mine Safety and Health Review Com'n, 

177 F.3d 1042, C.A.D.C.,1999 where that court applied common sense in interpreting whether 

the word “person” under section 105(c)(1) included MSHA officials. While it acknowledged 

that the starting point for any analysis is the text of the statute, it noted that “plain meaning and 

literal meaning are not equivalents and that there can be instances when focusing on the text 

alone can make the plain meaning elusive. Id. at *1055. The process requires “moving beyond 

the text . . . to examine the statutory scheme in which it reposes . . . .” Id. 

Other courts have also addressed this issue. For example, in Sosa v. U.S. , 550 F.2d 244, 

C.A.Tex. 1977, it was observed that a court which employs the “plain meaning” approach and 

interprets the terms and scope of a statute literally, without inquiring whether that literal meaning 

is consistent with Congress' purpose in enacting the statute, fails to respect adequately Congress' 

lawmaking power. For these reasons, the Supreme Court repudiated the “plain meaning” 

approach nearly forty years ago: “Often (the words of a statute) are sufficient in and of 

themselves to determine the purpose of the legislation. In such cases we have followed their 

plain meaning. When that meaning has led to absurd or futile results, however, this Court has 

looked beyond the words to the purpose of the act. Frequently, however, even when the plain 

meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with 

the policy of the legislation as a whole’ this Court has followed that purpose, rather than the 

literal words. When aid to construction of the meaning of words, as used in the statute, is 

available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words 

may appear on ‘superficial examination.’ ” United States v. American Trucking Ass'n, 310 U.S. 

534, 543-44, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). 

Where plain meaning does not resolve the question, the Chevron principles direct that 

deference be afforded to the Secretary’s reasonable interpretation of the provision in issue.31 

31 As noted earlier, JWR asserts that not even Chevron deference applies here. To reach 

that conclusion, it looks to a 1944 decision, Skidmore v. Swift, 323 U.S. 134, and Christensen v. 

Harris County, 529 U.S. 576 (2000). For a number of reasons both are peculiar sources to cite. 

This is because Skidmore upheld the idea that the administrator’s policies and standards are 

entitled to respect, because its policies are made “in pursuance of official duty, [and] based upon 

more specialized experience . . ..” Id. at *139. The district court was reversed for failing to 

follow that deference. In Christensen, another Fair Labor Standards Act case, the issue was 

whether an employer could force employees who had accrued compensatory time to use up that 

accrued time instead of having to pay them cash for it. Among other reasons, Christensen is 

distinguishable in that it involved regulations and the impact of a Department of Labor opinion 

letter which concluded that an employee must agree to such an arrangement. Although several 

Justices disagreed over the viability of Skidmore after Chevron, a majority concluded that such 

enforcement guidelines vis-a-vis a regulation’s meaning are entitled to respect when supported 

by their power to persuade the correctness of the agency’s interpretation. Christensen at *587. 

More importantly, unlike the arcane subject of compensatory time, at hand here is a central 

concern of coal mining: ignitions. This is a subject which is plainly within the realm of the 

(continued...) 

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Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir 2003). It is also clear that, it is 

the Secretary, not the Commission, that is entitled to deference in interpreting the Mine Act. 

Secretary of Labor v. Federal Mine Safety & Health Review Commission, 111 F.3d 913, 920 

(D.C.Cir. 1997). As the Secretary noted in its Reply Brief, “[a]s long as the Secretary’s 

interpretation is reasonable, it is entitled to deference even if the Court would not choose [that 

particular interpretation].” Sec. Reply at 5, citing Dept. Of Treasury, IRS v. Federal Labor 

Relations Authority, 494 U.S. 922 (1990) and Chemical Mfrs. Ass’n v. Natural Resources 

Defense Council, Inc., 470 U.S. 116 (1985). 

The full text of 103(j) and 103(k) have been previously noted. However, for the purposes of this 

case, the pertinent focus is only upon the following aspects of those provisions. 

In the event of any accident occurring in any coal or other mine, 

the operator shall notify the Secretary thereof and shall take appropriate 

measures to prevent the destruction of any evidence which would assist 

in investigating the cause or causes therof. . . . In the event of any 

accident occurring in a coal or other mine, where rescue and recovery 

work is necessary, the Secretary or an authorized representative of the 

Secretary shall take whatever action he deems appropriate to protect the 

life of any person, and he may, if he deems it appropriate, supervise and 

direct the rescue and recovery activities in such mine. 

Section 103(j) (emphasis added) 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue such 

orders as he deems appropriate to insure the safety of any person in the 

coal or other mine, and the operator of such mine shall obtain the approval 

of such representative, . . . of any plan . . . to recover the coal or other 

mine or return affected areas of such mine to normal. 

Section 103(k) (emphasis added) 

The Court notes that these two provisions, following one another, as they do, deal with a 

singular defining subject: the event of an accident. That is, in both provisions, Congress spoke 

to the subject of the event of an accident. “Accident,” of course, is a defined term under the 

Mine Act and the definition of that term provides that it includes “a mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, or death of, any person.” (emphasis added). 

There is no dispute that the triggering phrase for these two statutory provisions, the event of an 

31(...continued) 

agency’s expertise and as such it necessarily encompasses MSHA’s interpretation of sections 

addressing this grave concern to mining safety. 

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accident, was applicable here, because an ignition occurred. In fact, the event which precipitated 

the issuance of the (j) order in this litigation was the 22nd (twenty second) such ignition at JWR’s 

Mine No. 7 in the previous 15 months. 

Focusing for the moment on section 103(j), under the terms of the provision, it is 

important to take note that the “[i]n the event of any accident” phrase appears twice within that 

single provision. By repeating that phrase, all within (j), Congress spoke to two separate classes 

of accidents: those where there was an accident and those where the accident also necessitates 

rescue and recovery work. 

The first order of business under the non-rescue and recovery accident situation, is for the 

operator to notify the Secretary that there has been an accident event. The same sentence 

continues with the requirement for the operator to “take appropriate measures to prevent the 

destruction of any evidence which would assist in investigating the cause or causes therof.” 

Given that it is the Secretary that is to be notified of any accident, and that steps are to be taken 

to prevent evidence destruction, it necessarily follows that the Secretary is the principal authority 

to be conducting an investigation into the cause(s) of it. 

The Commission has long recognized the role of the Secretary’s principal role in such 

investigations. Twenty-five years ago, the Commission noted that to be the case. As they 

explained in UMWA V. Greenwich Collieries: 

Orders issued pursuant to section 103(j) or section 103(k) 

of the Mine Act, 30 U.S.C. § 813(k), are commonly known 

as ‘control orders’ since they are the means by which the 

Secretary may assume initial control of a mine in the event of 

an accident in order to protect lives, initiate rescue and recovery 

operations, and preserve evidence. 

8 FMSHRC 1302, *1308 at n. 2 (September 1986) (emphasis added), 1986 WL 221618, 

(F.M.S.H.R.C.) 

There are two approaches to interpreting the provisions of 103(j). One, as reflected by 

the Commission’s decision in Greenwich Collieries, is that, in the event of an accident, the plain 

wording of the section gives wide berth to the Secretary to take whatever action he deems 

appropriate to protect the life any person. This only makes sense, remembering that starting 

point for both sections (j) and (k) is the event of an accident. Obviously, the first sentence of 

section 103(j) contemplates Secretarial dominance in the event of an accident; the mine operator 

must notify the Secretary and an investigation of the cause or causes is explicitly required to be 

performed. That this investigation is to be performed by the Secretary is clear. The Secretary is 

to be notified, and appropriate measures are to be taken to prevent evidence destruction. 

Those steps are not mere inferences. It would not be reasonable to conclude that the 

Secretary is directed to be notified simply for the purpose of being informed that an accident 

occurred. Nor is the provision’s directive that a mine operator is to take measures to prevent the 

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destruction of evidence, a requirement that occurs in a vacuum. Clearly, both the notification 

and the preservation of evidence are imposed for the purpose of the Secretary’s investigation 

into the accident’s cause. 

While the first sentence of 103(j) by itself is sufficient, providing the Secretary with full 

authority to take appropriate actions for the purpose of investigating an accident’s cause, the 

third sentence, taken in a common sense fashion, can be read as a further clarification of the 

Secretary’s plenary authority in accident events. This is because, the third sentence again begins 

with the defining event which triggers the section’s applicability: the event of an accident. If the 

103(j) provision were strictly about rescue and recovery work, there would be no need to 

express that defining application a second time. 

Read in the context of the initiating event, an accident, it only makes sense that the 

Secretary, the one who is to be notified, can take “whatever action he deems appropriate to 

protect the life of any person.” That this power is untethered to the particulars of rescue and 

recovery is made clear by the concluding sentence of 103(j) which provides “and he may, if he 

deems it appropriate, supervise and direct the rescue and recovery activities in such mine.” If the 

Secretary’s authority were confined to rescue and recovery particulars, the last sentence would 

be superfluous. 

Equally important, even if one can contend that the literal phraseology of the section does 

not command the conclusion stated above, it is certainly within the deference ambit of Chevron, 

as a reasonable Secretarial interpretation. Viewed from the obverse, no one can seriously 

contend that the words employed by the section prevent or preclude the Secretary’s actions 

here.32 

The Secretary also contends that the plain language of section 103(j) does not limit its 

use to circumstances where the inspector is physically present at the mine. Reply at 4. The 

Secretary notes that, for (j), the absence of the limiting language found in sister section 103(k), 

wherein the requirement for presence at the mine is necessary. Instead, it is JWR that is 

attempting to read into the provision a requirement that an inspector must be present in order to 

issue a 103(j) order and that, somehow, an oral issuance of a section 103(j) order is not 

allowable. Reply at 5. The Court agrees. 

The Court also agrees with the Secretary’s observation that, as “[t]he first sentence of 

Section 103(j) requires operators ‘in the event of any accident occurring in any . . . mine’ to ‘take 

appropriate measures to prevent the destruction of any evidence which would assist in 

investigating the cause or causes thereof’ [it follows that] [s]ince the resumption of mining and 

the presence of people in the affected area could destroy evidence, it is reasonable to interpret 

32 Though issued two days after the 103(j) order issued here, the Secretary’s Program 

Policy Letter, No. P11-V-09, supports the Court’s independent conclusions about the provision, 

under either a plain meaning or reasonable interpretation approach. Thus, it demonstrates the 

reasonableness of the determinations made by the Court. 

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the phrase ‘[a]ppropriate measures to prevent the destruction of evidence’ to include a 

requirement that [,] unless MSHA gives an operator permission to do otherwise, operators must 

withdraw miners from the affected area until MSHA arrives on the scene to investigate.” That 

being the case, the Secretary maintains that prior to its arrival at the mine, it may issue orders 

consistent with this authority to preserve evidence, which of necessity can encompass the 

withdrawal of miners from the affected area. Reply at 6. 

It is also important to recognize, as the Secretary points out, JWR’s position would mean 

that when “MSHA is notified that an accident has occurred at the mine, [ ] MSHA cannot do 

anything until an MSHA inspector is actually at the mine [and during that interval] precious time 

can be wasted.” If JWR’s approach were accepted, it would mean that it could “act without any 

supervision from MSHA during an accident and its immediate aftermath” until MSHA arrived at 

the mine. Reply at 7. 

The sister provision of section 103(j), section 103(k), continues the Act’s attention to the 

“event of any accident” at a mine. As with (j), it directs the Secretary, now present at the mine 

where the accident occurred, to issue such orders as he deems appropriate to insure the safety of 

any person in the mine. In this matter, the Secretary’s subsequent action records that the (j) 

order was modified to reflect that MSHA, with Inspector Turner once present at the mine, was 

proceeding “under the authority of 103 (k). That (k) order reminded JWR that the modification 

“still protects the safety and health of the miners,” but that it allowed actions to be taken by the 

operator with prior approval by an authorized representative of the Secretary. Order No. 

8519555-01. 

With these observations in mind, this Court agrees with the Secretary’s position that once 

there has been an accident at a mine, and here it is again noted that there is no dispute – JWR 

admits there was an accident at the No. 7 Mine – in the form of an ignition – MSHA has the 

authority under sections 103 (j) and (k) to impose whatever reasonable measures it deems to be 

appropriate and necessary. To appreciate the vital need for MSHA’s authority under these 

provisions, it is useful to recall the core facts of March 25, 2011. 

JWR mine supervisor Keith Plylar contacted MSHA’s emergency hotline and the same 

individual also contacted MSHA supervisor Jacky Shubert, reporting that there had been an 

ignition on the number 4 section of the No. 7 mine. Supervisor Shubert, acting with caution, and 

proceeding under section 103(j) of the Mine Act, reminded JWR that it was obligated to 

preserve all the evidence resulting from the accident. Shubert then advised Plylar that he was 

going to send an inspector to the mine in order to confirm whether there was a necessity to 

continue the 103(j) order. Thereafter, MSHA inspector Joseph Turner did arrive at the mine, a 

mere hour and half later and, upon determining that there was no need for rescue and recovery, 

he withdrew the 103(j) order and replaced it with a section 103(k) order. Inspector Turner then 

interviewed witnesses who had information about the ignition and learned among other 

information that a supervisor had failed to properly monitor for methane gas while working in 

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the number 4 of mine No. 7.33 As a result MSHA, acting through Inspector Turner, required all 

JWR employees to be trained in ignition recognition.34 This was prompted, in part, by the 

undisputed fact there had been over 23 reported ignitions in the past 15 months at the mine. Tr. 9 

It is in this context that the Court determined the reasonableness of MSHA’s action at the 

time that the events unfolded. Because each event of an ignition is a serious matter in its own 

right, what happened with prior ignitions cannot be used to confine MSHA’s ability to respond 

to a new ignition event. Restated, the particular circumstances of past ignitions can not tie 

MSHA’s hands in addressing the problem of the chronic repetition of ignitions at the Number 7 

mine. 

JWR is not MSHA. MSHA is MSHA. 

JWR’s fundamental misunderstanding in this case stems from its failure to recognize that 

the Mine Safety and Health Administration, not JWR, is charged with the enforcement of the 

Mine Act. Here, MSHA reasonably imposed the (j) order, and minimally interrupted part of 

JWR’s operations for an hour and a half. Thereafter, upon Inspector Turner completing his 

investigation, and upon consulting with his MSHA supervisor, imposed the training requirement 

associated with the (k) order’s issuance. 

Because JWR has mixed up its role with the Agency’s mandate to protect the safety and 

health of miners, if it had the authority, instead of MSHA, JWR would have limited the training 

to the 2 percent of the work force that was involved in welding, burning or soldering. Tr. 379. 

However, because this is up to MSHA to decide, not JWR, the agency made the reasonable 

33 To be clear, it was the March 25, 2011 ignition, coupled with the frequent string 

of ignitions during the previous 15 months, that prompted MSHA’s ignition training 

requirement. The supervisor’s failure to monitor for methane was not the decisive event. 

34 Regarding the “severe penalty” to “shut down the whole mine to retrain all personnel 

on ignition safety,” JWR expresses its underlying and primary objection. Despite 23 ignitions in 

15 months at this extremely gassy mine, JWR reveals its true objection: the training left the 

Number 7 mine “well behind its production schedule.” JWR Reply at 12. That claim, that JWR 

was put “well behind its production schedule,” it should be noted, being merely an assertion by 

counsel, is not supported by any record evidence. Regardless of that claim, the more important 

point is that, since the days when Congress relieved the Department of Interior from its dual, but 

conflicting, mandates to both develop natural resources and protect the safety and health of 

miners, and transferred the safety and health concerns to the Department of Labor, it was decided 

that production must take a back seat to safety. What JWR describes as “drastic” orders, in truth, 

only inconvenienced the mine for two hours in the case of the (j) order and required much 

needed retraining about igeinnitions in the hope of warding off a mine tragedy. These 

impositions, far from being “drastic,” were prudent under the circumstances, and wisely required 

under MSHA’s mandate under the Mine Act. 

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decision that, in view of the high number of ignitions during the past 15 months in which the 

Number 7 seemed to resemble a pyrotechnics facility, it was appropriate to impose mine-wide 

miner training, to reduce or eliminate the ignition frequency. Although it would seem 

unnecessary to state the obvious, perhaps it must be recalled that mine ignitions remain a grave 

concern for underground coal mining. Ignitions have been associated with nearly every major 

coal mine disaster. Accordingly, MSHA’s decisions, acting under the authority of these 

provisions, is found to have been lawful. In fact, it seems reasonable to conclude that not only 

did MSHA not abuse its discretion, when evaluated in the context of the plethora of ignitions at 

one of gassiest mines in the United states, but had it failed to act in the manner in did, such 

inaction could have been viewed as an abuse of its discretion, and inconsistent with its mandate. 

Although JWR noted that an ignition, by itself,35 is not a violation of law, to the Court, 

rather than diminishing the importance of an ignition, that observation actually serves to 

underscore the importance of the (j) order, as a critical tool for MSHA to be able to employ. 

As Supervisor Shubert expressed it, “[o]ne ignition is too many ignitions. And when you have 

23 in a 14 period which leads the nation in ignitions, that’s when a red flag goes up.”36 Tr. 66 

As the Court also explained to JWR Counsel, “not only did the Government act 

appropriately based on what [the Court] heard so far . . . but they should act that way . . . when 

they get a call and the mine says, you know, we’ve had an accident. The way that [JWR 

Counsel] seem[s] to be suggesting that the Government should behave . . . that . . . MSHA 

should behave . . . would be a recipe for second-guessing. Better to err on the side of caution 

until you get people out there. [MSHA] act[s] promptly, Mr. Turner doesn’t drag his feet. He 

switches it to a (k) order, maybe sooner than he had to, seems to [the Court to be] all very 

reasonable. And importantly from [the Court’s] perspective, this is a remedial act. Its intent is 

to protect the safety and health of miners. [MSHA’s actions in this case were] entirely consistent 

with that approach to err on that side in the name of what that act and its various changes have 

been all about.”37 Tr. 269. 

35 Tr. 61. 

36 The Court expressed that, even if there had been only a single ignition, it would be 

sufficient to sustain the 103(j) issued here. MSHA stated that a purpose of pointing out the 

history of so many ignitions was to rebut the claim that the agency had abused its discretion. Tr. 

27. 

37 Curiously, while making much ado about its assertion that MSHA treats (j)s and (k)s 

“the same,” in response to the Court’s offer to allow all of Inspector Turner’s deposition into the 

record, JWR Counsel was not so keen on having all of it come in. The Court noted “[t]he 

problem with that approach is that that could be too selective. And [the Court] wouldn’t want to 

prohibit counsel for the government from being able to say yes [,] [t]hat sliver says that [b]ut if 

you go back and take the wide-angle view, there’s more to it. So . . . [i]t’s either in [,] in toto or 

it’s not in, but not slices of the cake.” Tr. 272 The Court then asked if JWR Counsel wanted it 

(continued...) 

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Further, JWR misses the larger point: ignitions, by themselves, are sufficient for MSHA 

to take the action it did here. JWR’s micro-managing approach would enfeeble the agency and 

effectively require a showing, either in the instance at hand or through prior ignitions, that there 

had been earlier human or property damage or some sort of commonality to the ignition causes 

before it could issue a (j) order. Congress could not have intended so little agency authority in 

the context of the relation between ignitions and mine accidents. 

Although the foregoing reasons establish MSHA’s authority under section 103(j) and (k) 

to deal with mine accidents, other contentions raised by JWR are now addressed, briefly. 

JWR’s assertion that MSHA can look to other regulatory tools. 

JWR contended at the hearing, and in its post-hearing brief, that 30 CFR Section 50.12,38 

a regulation applying to the preservation of evidence, is available to the agency and therefore it 

need not rely upon the (j) order. Tr. 95, 101. However, Supervisor Shubert observed that the 

regulation did not apply in the circumstances of this case. Shubert explained that the section 

does not apply at the moment an ignition occurs. Instead it comes into play comes into play after 

the fact and there is a civil penalty associated with it. Tr. 96 - 97. The Court agrees with 

Shubert’s point. MSHA could hardly invoke that section over the phone in response to a call 

that there had been an ignition. That section only can be invoked, as Shubert noted, after the fact 

and where it is determined that the regulatory section was violated, thereby triggering a citation 

or order and later a civil penalty. 

The impact of the Agency’s administrative statements regarding (j) and (k) orders. 

JWR turns to JWR Ex 13 and the MSHA handbook, dated November 2000, which 

provides guidance for the issuance of (j) and (k) orders.39 Tr. 311. JWR points to the 

37(...continued) 

in and the response was “[d]o I have to say now?” Tr. 272. One would think that if Turner’s 

deposition so clearly demonstrated the unreasonableness of MSHA’s action, JWR would have 

enthusiastically wanted all of it, not simply selections, admitted. 

38 JWR does not point to any other statutory or regulatory power the agency may employ. 

Further, JWR’s counsel’s suggestion that Supervisor Shubert could have used the pre-existing 

(k) order is not accurate because Shubert had at his disposal only one tool, namely the 103(j) 

order. Tr. 208. Further, as Shubert pointed out, the 103(j) was issued for a burning and welding 

ignition whereas the 103(k) was issued for a frictional ignition in the face area and further noted 

that these were two different areas, one was outby while the other was inby. Tr. 208. 

39 Without actually elliciting Turner’s affirmative agreement with its claim, JWR Counsel 

asserted that Turner was “following the guidance of [the] handbook on (j) and (k) orders [ ]” and 

then tacked on to that remark, with no pause, “This is still the MSHA handbook we were looking 

(continued...) 

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administrative guidance MSHA has issued on the subject, noting that a statement within an 

MSHA Handbook states that the primary purpose of a 103(j) is to prevent additional injuries 

when it becomes obvious that unsafe procedures are being followed. Handbook item B. Tr. 104. 

However, this is a selective reading from the Handbook, as JWR’s interpretation would 

effectively eliminate the phrase “primary purpose” and read it as if it stated that this is the “sole 

purpose” of a (j) order. 

Confusing its personal interpretive view with MSHA’s authority to interpret the statute, 

JWR contends that the MSHA handbook or policy is that a (k) order is to be “restrained to the 

conditions that were peculiar to the site of the flame.40” JWR Counsel assertion at Tr. 313. 

JWR also contends, in its Reply Brief, that the Secretary “cherry-pick[ed] [the] facts” and 

by doing so skirted the evidence showing that she violated the Mine Act and abused her 

discretion. The “facts” JWR contends the Secretary entirely omitted involve the (k) order issued 

on March 23, 2011, two days before the (k) order in issue here. Tr. 163. JWR agreed that “part” 

of its objection here is its contention that one can’t have another (k) order for the same (4 

section) area.41 Tr. 163. JWR’s position is that this earlier (k) was lawful. Tr. 165. JWR Ex 21. 

That earlier (k) order, JWR Ex. 21, was terminated on March 29 at 8:43. Tr. 169. JWR regards 

the previous (k) order as “crucial” to its contention that the Secretary acted “arbitrarily and 

capriciously” on the theory that one (k) order issued on top of another (k) order “over the same 

area” operates to preclude JWR from its statutory right to review such orders for temporary 

relief. JWR Reply at 1-2. While offended that the Secretary did not fully address the earlier (k) 

order, JWR seems to be more offended that the Secretary mentioned “other, less relevant pieces 

of background information.” What would those “less relevant” pieces be? Those would be the 

23 unplanned ignitions of methane, which JWR omits to mention occurred in the previous 15 

months at the No. 7 mine. From there, JWR notes that most of those prior ignitions were not 

generated by welding, and that, in any event, no injuries or property damage resulted from them. 

39(...continued) 

at a minute ago.” Turner’s answer, “[t]o the best of my knowledge, yes sir,” was clearly 

responding only to the second part of the assertion by JWR’s Counsel. Tr. 316. 

40 Apart from describing the “ignition” as a “flame,” JWR refers to 4th paragraph under 

‘A’ of MSHA’s November 2000 Handbook Series, Accident/ Illness Investigations Procedures, 

where it notes that “[i]n some instances it will be obvious that the conditions are peculiar to the 

accident site and therefore the Section 103(k) order would not apply to areas other than the 

accident site.” Tr. 314. Here, the distinction is that MSHA’s concern was broadly with the large 

number of ignitions occurring at the mine over a considerable period of time. It’s concern was 

manifestly not limited to ignitions while welding. 

41 Turner acknowledged that when he went to the mine he did not know there already was 

a 103(k) order on 4 section. Tr. 253. 

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In fact, taking a remarkable view of those 23 ignitions, JWR believes its “ignition history 

actually demonstrates how dedicated JWR’s personnel are to preventing ignitions . . . .” JWR 

Reply at 3. By that logic, the extent of JWR’s dedication to preventing ignitions would be 

strengthened if the number of ignitions were to increase further, a head-scratching argument to 

be sure. 

Responding to JWR’s (k) order argument, MSHA reminds that it can only issue a (k) 

order, when present at the mine. Sec. Reply at 3. The Secretary also notes that, aside from 

103(k), none of the other provisions42 of the Mine Act which authorize inspectors to issue orders, 

include the phrase “when present.” Reply at 3-4. As the Secretary notes in her Reply, JWR’s 

claim that MSHA’s issuance of “a new (k) order instead of modifying the previous (k) order that 

was still in effect on the same area” deprived JWR of its right to seek judicial review of the (k) 

orders, is meritless. This is because MSHA’s actions did not deprive JWR of their right under 

Section 105(b)(2) to seek judicial review of either (k) order. Both (k) orders were modified, and 

therefor both were available for challenge. The Secretary further notes that the two (k) orders 

here were issued for different areas; one was inby, at the face and attributable to a frictional 

ignition, while the other, the one directly in issue here, was outby and traceable to a welding 

ignition. Sec.’s Reply at 7-8. Relying simply upon the fact that the (k) orders addressed 

different areas, the Court rejects JWR’s (k) order argument. 

The contention that the agency is required to employ notice and comment rulemaking 

before it may utilize (j) and (k) orders in the manner used here. 

As JWR reads 103(j), MSHA’s issuance of that order, oral or otherwise, under that 

section is “complete unlawfulness.” JWR Br. at 9. After offering its analysis of the provision 

and its reading of the MSHA Handbook (JWR Ex. 13), it maintains “that (j) orders are only 

authorized when ‘rescue and recovery work is necessary.’” JWR Br. at 10. As this decision 

makes clear the Court is of the view that this is a selective reading of both sources and reaches 

conclusions completely at odds with the Mine Act’s purpose and MSHA’s role. While JWR 

notes that MSHA, since about September 2009, began a new practice of issuing (j) orders orally 

and remotely, upon receiving an accident notification, it complains that this policy did not 

undergo notice and comment rulemaking.43 JWR Br. at 13, JWR Exhibits, 3 & 3 B. However, 

notice and comment rulemaking applies to “improved mandatory health or safety standards for 

the protection of life and prevention of injuries in coal or other mines,” not for the agency’s 

interpretation of its statutory powers under the mine act. See, 30 U.S.C. § 811(a). MSHA’s 

policy regarding Section 103 (j) and (k) do not involve such matters. JWR points to no case law 

to support its rulemaking claim. Given that notice and comment rulemaking is for the purpose 

42 Orders under Sections 103(j), 104(b), 104(d), 104(e), 104(f) and 107 (a) do not have 

the “when present” limitation. 

43 Supervisor Shubert agreed that the Agency’s use of oral (j) orders was a new policy as 

of September 2009. Tr. 116. 

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of promulgating improved safety and health standards, not for the agency’s interpretation of its 

statutory powers under the Mine Act, this claim of JWR is rejected. 

MSHA’s requirement for miner training 

JWR also contends that the training, that is to say the “1 hour” of miner training, was an 

“abuse of discretion, overly broad and unnecessarily punitive.” JWR’s Ex 17, the record JWR 

generated on its own and which was later presented to MSHA showing the training, was offered 

as “evidence” of what was imposed on JWR. Of course, MSHA does not contest that it required 

training for the JWR miners at Mine Number 7. Part of JWR’s complaint is that, while the 

ignition on this occasion pertained to a welding related ignition, MSHA required training of all 

the miners. Tr. 288-289. This represents another instance of JWR’s confusion. It is for the 

Agency, not JWR to determine the scope of those miners in need of ignition training. 

In ordering that all miners be trained, Shubert noted that the training was staggered, in 

the sense that the day shift remained underground but that the evening shift had their training 

before they went underground to mine.44 Tr. 178. The same process applied until all were 

trained. Tr. 179. Thus, the “inconvenience” to coal production, imposed for the purpose of 

reducing the frequency of ignitions, was minimal. 

JWR, again confusing that itself with MSHA, asserts that the modification of the (k) order 

to require mine-wide training was “overly broad” and therefore an abuse of its discretion. 

Here, despite some 23 ignitions at the mine in a 15 month span, JWR’s objection 

involves the agency’s modification of the (k) order “to prohibit all underground activity until all 

of JWR’s underground personnel had been retrained on ignition hazard recognition and 

prevention.” JWR Reply at 3. By its lights, even though an ignition was occurring on average 

about every three weeks, JWR believes that no remedial action was necessary, and as it puts it 

“much less something as sweeping as a production stoppage and mine-wide training.” Reply at 

3. There were, JWR notes, “no injuries, entrapments, property damage, ongoing emergencies, or 

conditions requiring rescue and recovery work” and no violations were found. There was, 

however, the matter of the ignition and regular occurrence of ignitions during the past 15 

months. 

44 Despite a flurry of objections, Shubert was allowed to testify that he later learned about 

the training and how long it took. He informed that the training took between 30 minutes to an 

hour and he reaffirmed that the (j) order he issued did not affect the longwall. Instead it 

impacted the Number 4 section only. This training “covered the recognition of ignitions of 

miner heads, the bits, worn bits and to be more aware of worn bits, be more aware of when 

you’re burning and welding, monitor the area closely, put out more rock dust in the areas so if 

you did have a spark that the rock dust would be covered in the foot wall or the floor. Just a 

basic overall. And then they discussed also that they had numerous ignitions in the past, and this 

is something we’ve got to get a handle on.” Tr. 181-183. 

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JWR’s reading of Section 103(j) would allow the Secretary to issue a (j) order, only 

where rescue and recovery work is necessary. JWR Reply at 7. Given that Congress’ stated 

intention under the Mine Act was to protect miners’ safety and health, and given the central role 

that ignitions have played in most mine disasters, it would seem odd that Congress would 

provide for (j) orders only when that goal effectively has been defeated when the need for rescue 

and recovery has arisen. JWR’s reading would completely emasculate the provision, moving its 

design from prevention to recovery authority in the wake of a tragedy.45 In what must be a first 

for invoking the “remedial” nature of the Mine Act in order to reduce its effectiveness, JWR 

boldly contends that its constrained view of the Secretary’s authority under 103(j) will meet 

Congress’ intent “that the Mine Act remain truly ‘remedial legislation.’”46 JWR Reply at 8. 

ORDER 

For the reasons set forth above, Jim Walter Resources, Inc.’s Notices of Contest, as set 

forth in the caption, are hereby DENIED and this proceeding is DISMISSED. 

SO ORDERED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

45 Regarding JWR’s frequent citation to Sec’y of Labor v. Twentymile Coal Co., 30 

F.M.S.H.R.C. 736 (2008), 2008 WL 4287782, for the proposition that the Secretary’s action here 

lacked a “rational connection” to the facts and choices, JWR Reply at 3-4, 13, the Court 

obviously finds that there was a rational connection. 

46 In what the Court finds to be a confusing assertion, JWR, again invoking that the Mine 

Act is “remedial legislation,” asserts that the letter and spirit of section 103(j) undermines the 

Secretary’s argument that a (j) order is a prophylactic measure. Yet in the same breath that it 

notes the “sheer lack of the term ‘prophylactic’ in jurisprudence reflects the Commission’s strict 

adherence to Congress’ intent,” it then cites five cases in which the term prophylactic is used in 

Mine Act decisions. JWR Reply 8-9. 

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Distribution: 

David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue, North, Suite 2400,
 

Birmingham, AL 35203
 

Uche Egemonye, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW, 

Room 7 T 10, Atlanta, Georgia 30303 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

January 4, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2009-325 

Petitioner, : A.C. No. 11-03054-175456-01 

: 

: Docket No. LAKE 2009-326 

: A.C. No. 11-03054-175456-02 

: 

: Docket No. LAKE 2009-435

 v. : A.C. No. 11-03054-180530-01 

: 

: Docket No. LAKE 2009-436 

: A.C. No. 11-03054-180530-02 

: 

: Docket No. LAKE 2009-705 

BIG RIDGE, INC., : A.C. No. 11-03054-195111-01 

Respondent. : 

: Docket No. LAKE 2009-706 

: A.C. No. 11-03054-195111-02 

: 

: Willow Lake Portal 

DECISION 

Appearances: Tyler P. McLeod, Esq,, and Francesca Cheroutes, Esq., Office of the 

Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; 

R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, PLLC, 

Pittsburgh, Pennsylvania, for Respondent. 

Before: Judge Manning 

These cases are before me on petitions for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Big 

Ridge, Inc. (“Big Ridge”) pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced 

testimony and documentary evidence at a hearing held in Evansville, Indiana, and filed posthearing briefs. 

Big Ridge operates a large underground coal mine in Saline County, Illinois. The cases 

involve six section 104(a) citations and four 104(d)(2) orders of withdrawal. The Secretary 

proposed a total penalty of $116,912 for the citations and orders that were adjudicated. 

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I. BASIC LEGAL PRINCIPLES
 

A. Significant and Substantial 

The Secretary alleges that the violations discussed below were of a significant and 

substantial nature (“S&S”). An S&S violation is a violation “of such nature as could significantly 

and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 

U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular 

facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the 

Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete 

safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable 

likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 

1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin 

Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

 It is the third element of the S&S criteria that is the most difficult to apply. The element is 

established only if the Secretary proves “a reasonable likelihood the hazard contributed to will 

result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 

(Aug. 1985). An S&S determination must be based on the particular facts surrounding the 

violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 

10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 

(July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will 

cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC __, slip op. at 9, No. PENN 2008­

189 (Oct. 5, 2011).

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

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

on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on 

the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 

1996). The Commission has emphasized that, in accordance with the language of section 

104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 

(July 1984). With respect to citations or orders alleging an accumulation of combustible 

materials, the question is whether there was a confluence of factors that made an injury-producing 

fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors 

that have been considered include the extent of the accumulation, possible ignition sources, the 

presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; 

Texasgulf, 10 FMSHRC at 500-503. 

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B.Negligence and Unwarrantable failure 

The Secretary defines conduct that constitutes negligence under the Mine Act as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. 

30 C.F.R. § 100.3(d) (2011). The Commission has defined an unwarrantable failure as 

aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 

FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless 

disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery 

Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 

136 (7th Cir. 1995). Whether conduct is “aggravated” in the context of an unwarrantable failure 

analysis is determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, such as the length of time that the violation has existed, the extent of the 

violative condition, whether the operator has been placed on notice that greater efforts are 

necessary for compliance, the operator’s efforts in abating the violative condition, whether the 

violation is obvious or poses a high degree of danger, and the operator’s knowledge of the 

existence of the violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

Repeated similar violations are relevant to an unwarrantable failure determination to the extent 

that they serve to put an operator on notice that greater efforts are necessary for compliance with 

a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). 

II. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW
 

A. Docket No. LAKE 2009-325 

1. Order Nos. 6675150 and 6675151 

On October 28, 2008, MSHA Inspector Larry Morris issued Order Nos. 6675150 and 

6675151 under section 104(d)(2) of the Mine Act, alleging violations of section 75.400 and 

section 75.360(a)(1) of the Secretary’s safety standards. Order No. 6675150 states: 

An accumulation of combustible materials, in the form of float 

coal dust (black in color), coal fines and loose coal, is present at 

the operating slope tail pulley. The accumulations are in contact 

with the rotating belt and tail pulley for a distance of 

approximately 10 feet. The belt was removed from service by 

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management when notified by MSHA. The accumulations range 

from a layer of float coal dust to 16 inches in depth of coal fines 

and loose coal by approximately 9 feet in width by 20 feet in 

length. This mine has been issued 8 previous violations for this 

standard in the last thirteen days. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

(Ex. GX-1). Order No. 6675151 states: 

An inadequate pre-shift examination was made on the midnight 

shift on October 28, 2008 on the slope tail piece. Accumulations 

of combustible materials are in contact with the conveyor belt and 

tail pulley outby for approximately 10 feet on the East side of the 

belt. The hazardous condition was noticeable to even the most 

casual observer. There is no record of any hazards recorded in the 

examiner’s pre-shift record book for this shift on this date. This 

order is issued in reference to Order #6675150 issued on 

10/28/2008. This violation is an unwarrantable failure to comply 

with a mandatory standard. 

(Ex. GX-2). Inspector Morris determined on both orders that an injury was reasonably likely to 

occur and that such an injury could reasonably be expected to result in lost workdays or 

restricted duty. Further, he determined that both violations were S&S, the operator’s negligence 

was high, and that eight persons would be affected. 

Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and 

electric equipment therein.” 30 C.F.R. § 75.400. Section 75.360(a)(1) requires that a “certified 

person designated by the operator must make a preshift examination within 3 hours preceding 

the beginning of any 8-hour interval during which any person is scheduled to work or travel 

underground.” 30 C.F.R. § 75.360(a)(1).1 The Secretary proposed penalties of $27,959 and 

$10,705, respectively. 

2. Background Summary of Testimony 

Inspector Morris has worked for MSHA since January 2007 and is currently a coal mine 

inspector and accident investigator. (Tr. 1:16).2

 Morris has inspected the Willow Lake Portal on 

more then 100 occasions since October 2008. (Tr. 1:19). Prior to joining MSHA, Morris 

worked in the mining industry since 1974. (Tr. 1:17). 

1 The inspector cited a violation of section 75.360(b). At the hearing, I granted the Secretary’s 

motion to amend the citation to allege a violation of section 75.360(a)(1). (Tr. 1: 6-9).

2

 Citations to “Tr. 1-page number” reference Transcript Volume 1 and citations to “Tr. 2-page 

number” reference Transcript Volume 2. 

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On October 28, 2008, Morris was at the mine to perform a required inspection. (Tr. 1:20). 

During the inspection Morris was accompanied by Bill Shover, who works in the outby areas of 

the mine and is a safety steward. (Tr. 1:95-96). Morris testified that he started his inspection “at 

the top of the slope belt and walked it underground.” At the tail piece, accumulations were 

present underneath the belt and visible from the west side of the belt. (Tr. 1:24). At the time 

Morris arrived the belt was running and the east side of the belt was running in coal for 

approximately ten feet around the tail pulley. (Tr. 1:24). Morris further testified that 

accumulations measured approximately nine feet in width, twelve feet long, and sixteen-inches 

deep. (Tr. 1:24, 1:31). The accumulations consisted of combustible material, coal fines, loose 

coal, and float coal dust. (Tr. 1:30). The floor of the mine at this location was made of concrete. 

Some of the accumulations were wet under the surface due to the slope being washed down and 

water sprays at the belt transfer. (Tr. 1:70-72). Morris testified that the accumulations can dry 

out and burn in the right conditions. (Tr. 1:32). The slope belt tail, referenced in the order, was 

in an area with two transfer points from inby belts carrying coal from the mine’s working 

sections. (Tr. 1:33-34). One belt, the 4-A, is on the east and handles two production sections 

and the other belt, the north, handles the mine’s other three production sections. (Tr. 1:33). 

Morris stated that it took approximately one hour and forty-five minutes for eleven miners to 

abate the condition. (Tr. 1: 43-44). 

Morris determined that the accumulation violation was S&S due to the likelihood of a fire if 

the accumulations were left in the cited condition. (Tr. 1:35). He reasoned that if the bearings 

on each side of the tail pulley failed, metal would be in contact with metal, producing frictional 

heat and igniting the grease and in turn the coal surrounding the bearings. (Tr. 1:35). The slope 

belt is located in the primary entrance to the mine so that a fire and smoke would affect 

numerous workers. (Tr. 1:35-36). The main injuries that could occur from this hazard, Morris 

stated, are respiratory problems from breathing in smoke and getting lost within the mine. (Tr. 

1:39-40). Morris further determined that the violations would affect eight workers and could 

potentially result in lost workdays and restricted duties. (Tr. 1:40). The CO monitors located in 

the violation area, Morris noted, would not limit the exposure to the hazardous condition because 

CO monitors often fail and the response by miners can be slow due to complacency. (Tr. 1:42). 

Morris further determined that the accumulation violation was an unwarrantable failure 

because eight previous violations had been issued for the same standard within thirteen days of 

Order No. 6675150. (Tr. 1:44). These eight preceding violations where all issued by Morris and 

seven of them concerned accumulations along conveyor belts. (Tr. 1:48-49). Six of these seven 

violations were S&S because the belt was running and in contact with the accumulations. (Tr. 

1:49). Fifteen section 75.400 citations were issued in the mine between October 1 and October 

28. (Tr. 1:50). Additionally, Morris stated that the accumulations should have been obvious to 

an examiner and had existed for some time. (Tr. 1:45-47). Monte Applin, a mine examiner, was 

in the area at around 5:35 a.m. for the preshift and initialed the date board without referencing 

any accumulations. (Tr. 1:46). Morris deduced that the accumulations had existed since the belt 

was shut down during the previous midnight shift. (Tr. 1:47). Morris noted that the mine has 

three shifts: morning and afternoon production shifts, and a midnight maintenance shift. (Tr. 

1:37). Morris explained that by the time the morning shift performed all the required checks, no 

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coal would have been produced and transported along the belts from the end of the afternoon 

shift to the time of his inspection the next morning. (Tr. 1:47). 

Morris determined that the violation was a result of the operator’s high degree of 

negligence because the operator had been put on notice that it was not consistently complying 

with section 75.400. (Tr. 1:50). Morris had discussions with the operator after writing his 

previous eight violations. (Tr. 1:50). Additionally, Morris stated that conditions along the belts 

were widely ignored. (Tr. 1:50). 

Inspector Morris also issued an order for an inadequate preshift examination on the 

midnight shift on October 28, 2008, based on the same conditions discussed in the 

accumulations violation above. (Tr. 1:52). Morris testified that the midnight shift examiner 

typically examined the transfer areas while the examiners on the other shifts usually only walked 

the west side of the belt, which is why he cited the midnight shift for the violation. (Tr. 1:53­

54). In the preshift examination book Applin wrote, “The top entry slope, no methane, 20.9 

percent oxygen, no hazardous conditions found” on October 28, 2008 at 5:35 a.m. (Tr. 1:54; Ex. 

GX-5). In the entry for the dayshift Charlie Hayers, the examiner, wrote “Slope tail dirty” 

before Morris issued the order. (Tr. 1:55; Ex. GX-5). Morris reasoned that a violation of the 

examination standard occurred because Applin failed to observe an obvious hazard. (Tr. 1:57). 

Morris designated the examination violation as S&S because the violation matched the other 

order and the hazardous condition was allowed to remain unabated. (Tr. 1:57). Morris 

additionally explained that he designated the examination violation as an unwarrantable failure 

because the examiner is an agent of the operator and the accumulations were obvious. (Tr. 1:58­

59). Morris opined that the examiner should have seen the accumulations, shut the conveyor belt 

off, and notified the operator. (Tr. 1:59). 

On cross-examination, Morris testified that as far as he knew the CO sensors on the belt 

line were working on October 28, 2008. (Tr. 1:67). In addition, MSHA’s standards require that 

false alarms be treated the same as actual alarms. (Tr. 1:66). Finally, Morris agreed that when 

the examination books have comments about certain conditions, corrective action is usually 

undertaken. (Tr. 1:84-85). Morris testified that on October 29, 2008, the day after the orders 

were issued, Applin spoke with him about recording a note in his personal journal about 

accumulations on the belt line. (Tr. 1:86-87). 

Shover, the safety steward, testified that the slope tail was running in the accumulations, 

including dry float coal dust, when he arrived with Morris on October 28, 2008. (Tr. 1:96-97). 

He also recalled the conversation between Morris and Applin in which Applin pulled out his 

notebook and told Morris that the hazard in question was in his notes; he just forgot to log it in 

the exam book. (Tr. 1:98). On cross-examination, Shover stated that he stayed at the slope belt 

while ten to eleven workers spent between an hour and an hour and a half abating the order. (Tr. 

1:98-99). 

Applin, the examiner, has more than 30 years of experience with five years as an 

examiner. (Tr. 1:101). He testified that during preshift inspection, at the end of the midnight 

shift, he walked by the slope tail and looked for any hazards or accumulations. (Tr. 103-104). 

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Applin stated that he saw the accumulations and went over to two “red hat” miners in the area 

and told them to clean the slope tail. (Tr. 1:106). Because he assumed that the miners had 

cleaned the accumulations, Applin did not reference the accumulations in the exam book. (Tr. 

1:108). Applin further testified that the accumulations by the tail were mostly wet and he did not 

see any float coal dust. (Tr. 1:109). He did not consider the accumulations to be a hazard 

because the accumulations were not touching the belt or rollers. (Tr. 1:107). Applin stated that 

he did not record the accumulations because he considered accumulations to present a hazard 

only when the belt is rubbing against them. (Tr. 1:112). 

Terry Butler, the belt manager, testified that he accompanied Morris during inspection of 

the slope tail. (Tr. 1:117). Butler did not walk down the slope with Morris and Shover, but met 

them at the slope tail. (Tr. 1:117). Butler testified that the accumulations were small and that 

one had to get down on hands and knees to see the coal that was touching the belt. (Tr. 1:118). 

Additionally, there was a windrow of coal up the east side of the belt approximately six to eight 

inches deep and ten feet long. (Tr. 1:118). Butler noted that the accumulations were not obvious 

and there was no float coal dust at the slope tail. (Tr. 1:119-20). Furthermore, during the 

termination of the order, Butler testified that eleven workers could not be working at the location 

at the same time. (Tr. 1:122). On cross-examination Butler clarified the written statement he 

made regarding October 28, 2008. (Ex. GX-43). Within the written statement Butler references 

four inches of float dust “on the framing and under the tail.” (Ex. GX-43). Butler testified that 

he was referencing the belt line on the 4A belt and not the slope tail. (Tr. 1:129-130). 

3. Summary of the Parties’ Arguments 

The Secretary argues that Morris established that the operator violated both sections 75.400 

and 75.360(a)(1). Section 75.400 was violated due to the presence of float coal dust, a 

combustible material, within an active working belt area, observed by Morris and further 

confirmed by both Butler and Shover. (Sec’y Br. 4-5). Section 75.360(a)(1) was violated due to 

the volume of accumulations on the belt line present early in the morning shift. (Sec’y Br. 5). 

The Secretary relies on the testimony that the belt in question was started on October 28, 2008, 

around 6:00 a.m. and only residual coal from the prior days’ afternoon shift was on the belt. 

(Sec’y Br. 5). Morris observed the condition at 7:50 a.m.; thus, the belt was running for less 

then two hours. (Sec’y Br. 5). The morning production shift starts at 6:30 a.m., and there is an 

additional time lag for coal to reach the area after the morning shift starts production. (Sec’y Br. 

5). The Secretary reasons that the volume of accumulations was so significant that it took 

around one hour and 45 minutes to clear and this volume could not have been produced solely 

from the morning shift. (Sec’y Br. 5). Therefore, the accumulations were present for at least 

one shift and the examiner failed to recognize and record the condition. (Sec’y Br. 5). 

The Secretary further argues that the S&S designation on both violations should be 

affirmed because the cited condition exposed miners to the potential for serious injuries. The 

accumulations created a fire hazard along a belt line in a common travelway. (Sec’y Br. 6-7). 

The Secretary contends that the fire hazard existed regardless of the CO monitors referenced by 

the operators. (Sec’y Br. 7-8). The Secretary also argues that the violation was properly 

characterized as an unwarrantable failure because the condition was obvious, existed for a 

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significant time, the examiner knew about the condition, and the operator was on notice for an 

ongoing accumulations problem. Applin, the examiner, observed the accumulations and should 

have recorded any maintenance request in the book. (Sec’y Br. 10). Inspector Morris had been 

having ongoing discussions with management about accumulation problems and the operator 

had been issued numerous section 75.400 violations. (Sec’y Br. 11). The Secretary states that 

both past discussions and multiple violations serve to put an operator on notice of a recurring 

safety problem. (Sec’y Br. 12). 

Big Ridge argues that no violation of section 75.360(a)(1) occurred but does not contest the 

occurrence of the violation of section 75.400. Regarding section 75.360(a)(1), Big Ridge 

contends that at the time of Applin’s examination no hazard existed because the belt was not in 

contact with any accumulations. (Big Ridge Br. 8-9). At the time of the inspection the contact 

between the accumulations and the belt was only one square foot. (Big Ridge Br. 9). Thus, the 

hazardous condition was not in existence for a substantial period of time. (Big Ridge Br. 9). 

Big Ridge further argues that the S&S designation was improper for both orders. An 

injury-causing event was not reasonably likely to occur. (Big Ridge Br. 3). The accumulations 

were very wet and less likely to ignite; additionally, the inspector confused the presence of float 

coal dust on the 4A belt with the conditions in the slope tail area. (Big Ridge Br. 3). Methane 

was also not detected in the area. (Big Ridge Br. 4). Big Ridge further relies on its fire detection 

systems: CO sensors coupled with fire suppression equipment on the belt line would provide 

early warning and prevent ignition. (Big Ridge Br. 4). Moreover, Big Ridge relies on Terry 

Bentley, the MSHA Chief of Health and Safety, and his report on belt entry fires, which states 

that between 1980 and 2005 there were only 63 reportable fires and no fatalities or lost time 

(“Bentley Report”). (Big Ridge Br. 5; Ex. R-7). Therefore, the hazardous condition is unlikely 

to result in any serious injury. Specifically for the violation of section 75.360(a)(1), the S&S 

designation must be based on the failure to report, not necessarily on the presence of the 

condition itself. (Big Ridge Br. 9). 

Big Ridge also contests the unwarrantable failure designation for both orders. Big Ridge 

argues that management had no knowledge of a hazard; Applin did not observe accumulations in 

contact with the belt line. (Big Ridge Br. 7.) Furthermore, the accumulations were limited in 

scope and not obvious. (Big Ridge Br. 7). Butler testified that the belts were carrying coal 

during the inspection and the condition was likely created by spillage on the current shift. (Big 

Ridge Br. 7). The point of contact between the accumulations and belt line was small and could 

easily be missed by an examiner. (Big Ridge Br. 8). 

4. Discussion and Analysis 

a. Order No. 6675150 

Big Ridge did not contest the violation of section 75.400, but it contends that the Secretary 

did not establish that the violation was S&S. I agree. The Secretary established the first two 

elements of the Mathies test but did not prove that it was reasonably likely that the hazard 

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contributed to by the violation would result in an injury. The accumulations were mostly wet. 

There were no ignition sources in the area that were likely to ignite the coal or cause it to 

smolder. The belt rubbing in the coal accumulations was not a likely ignition source. There was 

no evidence that the belt was misaligned, that it was rubbing against the metal supports for the 

conveyor system, or that any other ignition sources or methane were present. The inspector 

testified that if the bearings on the tail pulley were to fail, metal would rub against metal and that 

grinding action could create heat and ignite the grease in the bearings which would ignite the 

coal. (Tr. 1:35). Such a chain of events, although possible, is unlikely given the facts in this 

case. There was no showing that the belt was running during the previous maintenance shift. 

Assuming continuing mining operations, the accumulations would have been cleaned up during 

the normal mining cycle before an S&S hazard was created. Finally, although the presence of 

CO detectors and a fire suppression system does not eliminate the hazard, it reduces the 

likelihood of serious injuries. The violation was serious, however, because if a fire were to 

break out, a serious injury could result. 

Big Ridge also contends that the Secretary did not establish that the violation was the result 

of its unwarrantable failure. I find that the violation was the result of Big Ridge’s unwarrantable 

failure to comply with the safety standard. The evidence establishes that the violation had 

existed since the end of the previous production shift. The violation was confined to a small 

area, but it was in a location where the operator should expect accumulations to develop. All of 

the coal produced at the mine exits the mine via the slope belt. Several belts dumped onto the 

slope belt in the area where the order was issued. Consequently, the operator should give special 

attention to this area to make sure that accumulations are promptly cleaned. I find that Big 

Ridge had been placed on notice that greater efforts were necessary to comply with section 

75.400 throughout the mine and especially along coal-carrying conveyor belts at the mine. Mr. 

Applin testified that he told some red-hat miners to clean up the accumulations and that he wrote 

down the conditions he observed in his notepad, but he did not write anything in the preshift 

examination books. Thus, he was aware that accumulations existed in the cited area. He 

believed that he was not required to record coal accumulations if the belt was not rubbing in 

them or, presumably, if there were no other ignition sources present. I do not credit the 

testimony about the red-hat miners and instead find that Big Ridge made no effort to clean up the 

accumulations. The accumulations were not readily obvious, but given their location, it was 

incumbent on the operator to take special care to look for accumulations in the cited area. Big 

Ridge’s conduct amounted to a serious lack of reasonable care. The negligence was high. A 

penalty of $15,000.00 is appropriate for this violation. 

b. Order No. 6675151 

Big Ridge contends that the Secretary did not establish a violation of section 75.360(a)(1). 

I find that a hazardous condition was present at the time of Applin’s preshift examination and 

that he failed to recognize this hazard or record the hazard in the preshift records. As stated 

above, preshift and onshift examiners have a duty to carefully examine the cited area because it 

is subject to spillage and accumulations. The examiner must take a moment to thoroughly 

observe the conditions around the slope tail pulley in order to discharge his obligation to conduct 

a thorough preshift examination. A cursory walk-though is not sufficient given the likelihood 

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that accumulations will develop in that location. As discussed above, I found that the 

accumulations created a serious safety hazard but that they were not S&S. The obligations set 

forth in section 75.360 to examine for and record hazardous conditions are not limited to those 

hazardous conditions that are S&S. Enlow Fork Mining Co., 19 FMSHRC 5, 14-15 (Jan. 1997). 

I also find that this violation was S&S. The preshift examination requirement “is of 

fundamental importance in assuring a safe working environment underground.” Buck Creek, 17 

FMSHRC at 15. The preshift examination is intended to “prevent hazardous conditions from 

developing.” Enlow Fork, 19 FMSHRC at 15 (emphasis added). Thus, even though Applin did 

not consider the accumulation amount to be hazardous at the time of his examination, it was 

clear that it would not take much more added coal to create a very serious hazard. Thus, the 

failure to recognize and record the hazard presented a reasonable likelihood that the hazard 

contributed to by this violation would result in an event in which there was a serious injury. 

Whether this violation was a result of Big Ridge’s unwarrantable failure is a closer 

question. As the preshift examiner, Mr. Applin was an agent of Big Ridge and his failure to 

report the coal accumulation is imputed to Respondent. Rochester and Pittsburgh Coal Co., 13 

FMSHRC 195-96 (Feb. 1991). Applin was an experienced examiner. He did not recklessly or 

intentionally disregard his responsibilities and he was not indifferent to any hazards present. 

Although Applin believed that the conditions did not present a significant hazard because the 

coal was damp and the belt was running in only a small section of the accumulations, the 

operator had been warned a number of times that it was not doing enough to remove 

accumulations. Both these past warnings and multiple violations of section 75.400 during the 

weeks leading up to October 28 put the operator on notice that it needed to conduct more 

thorough preshift examinations in areas where accumulations were likely to develop. The failure 

of Big Ridge to take steps to retrain its examiners to better identify hazardous accumulations 

demonstrates a serious lack of reasonable care. Consequently, I find that the Secretary 

established that this violation was a result of the operator’s unwarrantable failure to comply with 

the safety standard. A penalty of $20,000.00 is appropriate for this violation. 

B.Docket No. LAKE 2009-706 

1. Citation No. 8417452 

On July 20, 2009, Inspector Morris issued Citation No. 8417452 under section 104(a) of the 

Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows: 

An accumulation of combustible materials, in the form of coal 

fines and loose coal, is present on the 4F operating conveyor belt 

at the belt drive. The accumulations are located on both motor 

trays and under the belt drive and range from 1 to 16 inches in 

depth by 2-4 feet in width by 1-5 feet in length and are against the 

motors. 

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(Ex. GX-38). The inspector determined that an injury was reasonably likely and that lost 

workdays or restricted duty would be expected if an injury occurred. He further determined that 

the violation was S&S, the operator’s negligence was high, and two persons would be affected. 

The Secretary proposed a penalty of $16,867. 

2. Background Summary of Testimony 

Inspector Morris testified that during his regular inspection on July 20, 2009, he observed 

accumulations of “combustible materials surrounding the drive motor” on the 4F conveyor belt. 

(Tr. 1:133-34). The 4F belt’s drive motors are located on “trays” under the belt. In front of the 

drive rollers, there are scrapers present to keep accumulations off the motor. (Tr. 1:134). Morris 

found “coal fines and loose coal on both motor trays and under the belt drive.” (Tr. 1:135). 

Morris measured the accumulations located against the motors to be approximately one to 

sixteen inches deep, two to four feet wide, and one to five feet in length. (Tr. 1:135). Morris 

testified that the accumulations were combustible and likely formed because the scrapers were 

not properly aligned against the belt. (Tr. 1:135). 

Morris designated the citation to be S&S because the accumulations were surrounding the 

motors and close to the couplers, which provide a frictional heat source that could produce an 

ignition. (Tr. 1:136-37). The resulting fire hazard, Morris reasoned, could produce injuries that 

produce lost work days or restrict duties because of breathing problems from smoke inhalation 

or injuries from restricted visibility. (Tr. 1:138). Morris testified that CO monitors and a fire 

suppression system were located in the area, but he does not take those into consideration 

because the hazardous condition still exists and safety measures do not always work properly. 

(Tr. 1:138-39). Morris further states that he personally believes that the most likely place to 

have a fire in a coal mine is the conveyer belt; he has worked with belts and has been involved 

with a belt fire before. (Tr. 1:139-40). The violation was also designated as high negligence 

because Morris had previously met with the management about accumulations on the conveyer 

belts. (Tr. 1:140-41). Additionally, Big Ridge’s history of section 75.400 violations factored 

into Morris’s determination. (Tr. 1:142). Big Ridge shut down the belt and cleaned the area; 

Morris terminated the citation two hours later on the same day. (Tr. 1:143). Morris estimated 

that the accumulations had existed for more than three shifts based on his mining experience and 

the volume of accumulations present. (Tr. 1:143). 

On cross-examination Morris testified that he did not take any temperature readings of the 

belt drive components and the CO sensors were working as far as he knew. (Tr. 1:146-47). 

Morris also confirmed that the belt fire he had experience with occurred before CO sensors and 

fire suppression systems were required. (Tr. 1:149). Morris agreed that Big Ridge had fewer 

section 75.400 violations prior to Citation No. 8417452 than in previous time intervals but he did 

not feel that this should be a mitigating circumstance in this case. (Tr. 1:150-51). On redirect 

examination, however, Morris testified that in the first quarter of 2009, twenty-nine section 

75.400 violations were issued and in the second quarter ninety-seven section 75.400 violations 

were issued to the operator. (Tr. 1:153-54; Ex. GX-18). 

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Bob Clarida, the safety supervisor, testified that he accompanied Morris during the 

inspection on July 20, 2009. (Tr. 1:162). Clarida described the accumulations as “corn flakes,” 

which are made up of a mixture of fire clay and coal dust. (Tr. 1:162). The accumulations were 

tested and were determined to be 40% combustible. (Tr. 1:163). Clarida further testified that he 

did not believe that the accumulations would be reasonably likely to catch on fire because the 

running temperature of the motors is typically around 120 degrees and the ignition temperature 

of coal is 881 degrees. (Tr. 1:163-64). On cross-examination, Clarida testified that regarding 

the numbers he referenced above, the testing had been done a “few years back” and that he never 

actually examined any of the results. (Tr. 1:165-66). 

Todd Grounds, the compliance manager of the Mine, testified as to the operator’s programs 

in place to address section 75.400 violations. (Tr. 1:170). In late January or early February of 

2009 a program was put in place to inspect the belt lines above and beyond the regular 

examination. The program required that both the walkway side and the back side of the belt 

would be inspected. (Tr. 1:170-71). Additionally, in February of 2009 the operators assigned 

two additional mechanics to fix hydraulic leaks. (Tr. 1:171). Grounds testified to the positive 

results of the programs, where May and June of 2009 showed a significant decrease in the 

number of section 75.400 violations. (Tr. 1:172-73; Ex. R-29). 

3. Summary of Parties’ Arguments 

The Secretary argues that Big Ridge violated section 75.400 when it allowed accumulations 

of combustible materials around the belt drive motor. (Sec’y Br. 13). The Secretary contends 

that the violation was properly designated S&S because the accumulations were getting close to 

an ignition source, which posed a fire hazard. The rotating coupler produces frictional heat and, 

when material is packed around the motor, a fire hazard results. (Sec’y Br. 13). Smoke from a 

fire would cause smoke inhalation or injuries from reduced visibility. (Sec’y Br. 14). The 

Secretary further argues that the presence of fire protection measures does not control whether a 

safety hazard was present. (Sec’y Br. 14). The Secretary also argues that the violation resulted 

from Big Ridge’s high negligence. Big Ridge was on notice of the accumulations problem 

because of the previous citations and conversations Morris had with management. (Sec’y Br. 

15). Additionally, the Secretary contends that the accumulations had existed for a least three 

shifts. (Sec’y Br. 15). 

Big Ridge does not challenge the violation of section 75.400, but does contest the S&S and 

high negligence designations. Regarding the S&S designation, Big Ridge argues that the third 

element of the Mathies test was not established; there was no likelihood of an injury-causing 

event. (Big Ridge Br. 10). Big Ridge relies on Clarida’s testimony that the accumulations were 

mostly non-combustible and the heat generated from the belt drive was not sufficient to ignite 

coal. (Big Ridge Br. 10). Further, Big Ridge notes that the Bentley report demonstrates that 

there have been few reportable injuries caused by belt fires in the coal mining industry. (Big 

Ridge Br. 11-12). Therefore, a belt fire causing an injury is “highly unlikely,” and lost time or 

reduced work is not likely to occur. (Big Ridge Br. 11-12). 

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4. Discussion and Analysis 

The Secretary established a violation of section 75.400. As with Order No. 6675150, 

above, I find that the Secretary did not establish that the violation was S&S. The third element 

of the Mathies test was not met in this instance. The accumulations were less that 50% 

combustible; the temperature of the motor was not great enough to ignite the accumulations; it 

was unlikely that any heat generated by the belt drive would ignite the accumulations; and the 

CO monitors would have alerted miners if any of the material started smoldering. The risk of an 

injury from this violation was remote. There was no evidence that the belt motor, the belt, or 

any other piece of equipment was functioning improperly such that it might become an ignition 

source. Of course, it was possible that the accumulations could start to smoke, but such an event 

was not likely taking into consideration continued normal mining operations. I credit the 

testimony of Bob Clarida on this issue. The gravity of the violation was serious. 

I find that Big Ridge’s negligence was greater than moderate. I credit the testimony of 

Inspector Morris that the accumulations had been present for a lengthy period of time. I do not 

doubt that the mine had been doing a better job of examining its belt lines for accumulations 

starting in early 2009 or that it reduced the number of citations it has been issued for violations 

of section 75.400. Nevertheless, the fact that this accumulation had been present for some time 

demonstrates that Big Ridge’s preshift examinations still needed improvement. The negligence 

was high. A penalty of $10,000.00 is appropriate. 

C. Docket No. LAKE 2009-326 

1. Citation Nos. 6678829 and 6678835 

On September 4, 2008 and September 9, 2008, MSHA Inspector Danny Ramsey issued 

Citation Nos. 6678829 and 6678835. Both citations were issued under section 104(a) of the 

Mine Act, alleging a violation of 30 C.F.R. § 75.1722(b). Citation No. 6678829 states as 

follows: 

The tail roller guard, located on the Unit-5 (5C) conveyer tail 

piece, was not extended a distance sufficient to prevent a person 

from reaching behind the guard and becoming caught between the 

belt and the pulley. An opening in the guard measuring 

approximately 5 to 8 inches in width and 24 inches in length was 

observed exposing the moving tail pulley. 

(Ex. GX-9). Citation No. 6678835 states as follows: 

The tail pulley guard, located on the Unit-2 2 (B) conveyor tail 

piece, was not extended a distance sufficient to prevent a person 

from reaching behind the guard and becoming caught between the 

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belt and the pulley. An opening measuring approximately 3 to 4 

inches in width and 24 inches in length was observed exposing the 

moving pulley. 

(Ex. GX-11). On both citations, the inspector determined that an injury was reasonably likely to 

occur and that the injury would be permanently disabling. He further determined that the 

violations are both S&S, with Citation No. 6678829 being high negligence and Citation No. 

6678835 being moderately negligent. Section 75.1722(b), entitled “Mechanical equipment 

guards” provides that “[g]uards at conveyor-drive, conveyor-head, and conveyor-tail pulleys 

shall extend a distance sufficient to prevent a person from reaching behind the guard and 

becoming caught between the belt and the pulley.” 30 C.F.R. § 75.1722(b). The Secretary 

proposes a penalty of $1,795 and $5,961 respectively. 

2. Background Summary of Testimony 

a. Citation No. 6678829

 Inspector Ramsey testified that on September 4, 2008, he was at the mine and traveled 

with Bob Clarida, the company representative, and Zach Gibbons, the miner’s representative. 

(Tr. 1:192). During the inspection, Ramsey observed an opening on the guarding for the Unit 5 

conveyor tail piece. (Tr. 1:179). The opening exposed the moving tail pulley, and was measured 

to be five to eight inches in width and 24 inches in length, about two-thirds the height of the 

entire machine. (Tr. 1:179, 184). The guard was made of “belting” and was located “at the end 

of the conveyor belt where the section feeder . . . unloads onto it.” (Tr. 1:179). Ramsey testified 

that the guarding standard helps prevent miners from reaching behind the guard and exposing 

themselves to moving mechanical parts, specifically from becoming caught between the belt and 

the pulley. (Tr. 1:180-81, 182). Miners typically have to reach behind the guards to clean, 

service, grease, and maintain the tail rollers. (Tr. 1:181-82). The distance between the guard 

and the moving tail roller was about ten inches. (Tr. 1:182). Ramsey observed debris and wire 

around the shaft of the tail pulley that was “easily” seen from the opening. (Tr. 1:185). The 

feeder car on the machine did not provide any protection because the opening was still 

accessible. (Tr. 1:186). 

Ramsey testified that the violation was reasonably likely to cause an injury because the 

machine was going to have to be cleaned out and people sometimes do not make “smart” choices 

when working around moving parts. (Tr. 1:187). The violation was likely to result in a 

permanently disabling injury. (Tr. 1:187). Ramsey determined this from both MSHA guidelines 

and personal experience; he knew two people who had been injured from reaching into moving 

machinery. (Tr. 1:188-89). One individual reached into a drive and his arm was pulled off 

resulting in a fatality, and the other individual had an injury that exposed bone in his arm. (Tr. 

1:188-89). Ramsey reasoned that in this particular case a worker would lose function of a limb 

if caught in a pinch point of the machinery. (Tr. 1:189). Only one worker would be affected 

because only one can reach within the guard at a time. (Tr. 1:189). 

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Ramsey further determined that the violation was S&S due to the seriousness of the 

potential injury, the frequency of people within the area, and the likelihood of occurrence. (Tr. 

1:190). Ramsey also determined the violation was due to moderate negligence on behalf of the 

operator. (Tr. 1:190). The condition was obvious, but Ramsey could not determine how long 

the condition existed or who knew of the condition. (Tr. 1:190-91). The onshift paperwork did 

not reference the cited condition at the Unit 5 conveyor tail piece. (Tr. 1:191). Repairing the 

guard, closing the opening, and securing it with tie wire abated the citation. (Tr. 1:193). 

On cross-examination, Ramsey testified that section 75.1722(b) specifically references 

guarding the point where the belt and roller meet, the pinch point. (Tr. 1:201). The feeder will 

overlap with the tail piece and bolt onto the machine’s frame. (Tr. 1:202). With the feeder on 

the belt, one would have to crouch and reach in about 20 inches to get to the pinch point. (Tr. 

1:207-08). Further, Ramsey testified that most workers would have no reason to reach under the 

guard; greasers have a hose that extends out of the guard and they have no reason to reach 

underneath the belt; shovelers use long handled shovels affording them protection; and 

examiners do not stick their hands under the belt. (Tr. 1:209-10). 

Clarida, the safety supervisor, testified that a feeder would make it harder to access the 

pinch point. (Tr. 1:222). The feeder overhangs the guard by around 24 to 30 inches. Thus, to 

get a hand in the pinch point, one would have to lie down against the machine; one would not 

come into contact with the pinch point by merely walking by or working around the area. (Tr. 

1:223-24). 

b. Citation No. 6678835 

Inspector Ramsey testified that on September 9, 2008, he issued another citation for a 

violation of section 75.1722(b). (Tr. 1:194; Ex. GX-11). The violation was on the Unit 2, 2B 

conveyor tail piece, and Ramsey measured its opening to be three to four inches in width, 24 

inches in length, and exposing the moving tail pulley. (Tr. 1:194). The machine was similar to 

the machine in the citation above but without the feeder car. (Tr. 1:194). The guarding was 

made out of belt material, and the gap in the guards was 16 inches away from moving parts. (Tr. 

1:194-95). Ramsey reasoned that the belt material used for the guards could easily have been 

made wider for access. (Tr. 1:196). Miners are around the 2-B tail piece at least once a shift 

because the mine examiner checks the area, and cleaning as well as maintenance has to be 

performed. (Tr. 1:195). 

Ramsey determined that the violation was reasonably likely to occur because the moving 

pulley was exposed. (Tr. 1:196-97). Ramsey had issued another citation for accumulations 

around the tail piece and within the opening; therefore, someone had to be in the area to clean. 

(Tr. 1:197). The violation was also determined to likely result in a permanent or disabling injury 

and would affect one person for the same reasons as Citation No. 6678829, above. (Tr. 1:198). 

Ramsey further determined that the violation was S&S because, if left unabated, a serious 

injury would result. (Tr. 1:198). Ramsey determined that the operator displayed a high level of 

negligence because the operator knew or should have known about the violation and there were 

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no mitigating circumstances. (Tr. 1:198). After Ramsey issued Citation No. 6678829, above, on 

September 4, 2008, he stated that he gave Clarida a verbal notification that he would raise the 

level of negligence in the next citation he issued for a violation of the guarding standard. (Tr. 

1:198). 

Clarida testified that the setup of the tail piece is similar to the citation above, but no feeder 

was located on the belt line. (Tr. 1:226). He believes that any potential injury would not result 

in a permanent and disabling injury, and that one would have to deliberately stick a hand in the 

opening for an injury. (Tr. 1:227). Clarida states that he believed Ramsey did speak with him 

about the guarding violations but could not remember for sure. (Tr. 1:228). 

3. Summary of Parties’ Arguments 

The Secretary argues that Big Ridge violated section 75.1722(b) as set forth in both 

citations because a gap was allowed in the unsecured guarding on the Unit 5C and 2B tail pieces, 

respectively. The regulation requires that a guard be present to prevent reaching behind and 

becoming caught. (Sec’y Br. 17). A sufficient distance for moving parts would be 

approximately 30 inches or the length of a man’s arm. (Sec’y Br. 17). The Secretary contends 

that Citation No. 6678829 was properly designated S&S and moderately negligent. The S&S 

designation was proper because an injury was reasonably likely to occur because miners 

frequently traveled in the area, and clean up would have to be done in the near future in the area 

as well. (Sec’y Br. 17). A moderate negligent designation is also appropriate because the 

condition was obvious and the area is examined once a shift. (Sec’y Br. 18). The Secretary 

rejects Big Ridge’s argument that section 75.1722(b) only requires guards against the pinch 

point between the belt and tail pulley and guards only need to protect miners from accidental 

contact. (Sec’y Br. 18-19). The language and intent of the regulation focuses on a miner 

deliberately reaching through an inadequate guard and is not limited to just one particular pinch 

point. (Sec’y Br. 18-19). The Secretary also contends that Citation No. 6678835 was properly 

designated S&S and moderately negligent. The S&S designation was proper because it was 

reasonably likely that an injury world occur because accumulations had to be cleaned up around 

the tail piece. (Sec’y Br. 19-20). The designation of high negligence by the operator is also 

appropriate because Ramsey had previously given notice to Big Ridge about guard violations. 

(Sec’y Br. 20). 

Big Ridge first argues that no violations of section 75.1722(b) occurred. The guards in 

place were sufficient to prevent contact where the belt and pulley meet. (Big Ridge Br. 15). The 

guard in Citation No. 6678829 did not permit access to the pinch point located 20 inches from 

the guard, and the pinch point was further protected by the feeder. (Big Ridge Br. 16). Citation 

No. 6678835 was similar in that the guard did not permit access to the pinch point and one 

would have to lie on the ground to access the area. (Big Ridge Br. 16). A miner could not slip 

or trip and be placed in a position to contact the pinch point. (Big Ridge Br. 17). If both 

guarding violations did occur, Big Ridge argues that both should not be designated S&S. The 

S&S designation is improper because there was no likelihood of an injury-causing event, the 

third element of the Mathies test. (Big Ridge Br. 17). An injury is unlikely because of the 

location of the pinch point and the presence of the guard. (Big Ridge Br. 17). Anyone 

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performing work on the belt line was required to lock out and tag out the line, and travel by the 

belt would not cause contact with the pinch point. (Big Ridge Br. 18). Furthermore, Big Ridge 

contests the high negligence designation on Citation No. 6678829, because no conversation 

between Ramsey and Clarida ever took place regarding guarding violations on September 4, 

2008. (Big Ridge Br. 18). If the conversation did occur, mitigating circumstances were still 

present because the guards present prevented all but deliberate conduct. (Big Ridge Br. 19). 

4. Discussion and Analysis 

Section 75.1722 is a very important safety standard. It requires that moving machine parts 

be guarded to prevent miners from becoming entangled in these moving parts and sustaining 

severe injuries. Unguarded or inadequately guarded moving machine parts present a significant 

hazard to miners. This safety standard is essential because miners, in conducting their day-today activities, should not be exposed to the hazards presented by moving machine parts. As the 

Commission stated in Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), guarding 

standards should be interpreted to take into consideration a “reasonable possibility of contact and 

injury, including contact stemming from inadvertent stumbling or falling, momentary 

inattention, or ordinary human carelessness.” “Even a skilled employee may suffer a lapse of 

attentiveness, either from fatigue or environmental distractions. . . .” Great Western Electric 

Co., 5 FMSHRC 840, 842 (May 1983). 

Nevertheless, I am bound by the terms of the safety standard that is cited. In this case, the 

inspector cited section 75.1722(b) which provides that “[g]uards at conveyor . . . pulleys shall 

extend a distance sufficient to prevent a person from reaching behind the guard and becoming 

caught between the belt and the pulley.” (emphasis added). This standard was drafted narrowly 

to protect a miner from reaching behind a guard and getting caught between a belt and a pulley. 

It does not cover the hazards related to other moving machine parts, such as gears, sprockets, 

chains, flywheels, or similar moving machine parts. Consequently, the issue is whether the two 

conditions cited by Inspector Ramsey presented a hazard of getting caught between the belt and 

the pulley. 

With respect to the first citation, Inspector Ramsey testified that it was possible to reach 

underneath the belt guarding and come in contact with the pulley. (Tr. 1:186). The point where 

the belt rolls onto the pulley was about four to six inches above the ground. (Tr. 1:202). 

Someone would have to reach in to contact the pulley and that person would have to be 

crouching. (Tr. 1:206). The inspector estimated that it was about 20 inches from the bottom of 

the guard to the subject pinch point. (Tr. 1:207). There was also a gap between the pieces of 

belting that were being used as a guard. (Tr. 1:208). 

With respect to the second citation, Inspector Ramsey testified that it was about 16 inches 

between the guard and the pulley. (Tr. 1:195). As with the previous citation, because the guard 

was made of hanging pieces of belting, a miner could push them aside. (Tr. 1:196). There were 

accumulations behind the guarding. (Tr. 1:197). 

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I find that the Secretary established a violation in both instances. The belting used as 

guarding was not secured in such a way to prevent a miner from coming into contact with the 

pinch point between the pulley and the belt. Miners were in the area once a day to perform 

examinations and to perform routine maintenance. Based on the testimony of Inspector Ramsey, 

I find that there was a “reasonable possibility of contact and injury” with the pinch point 

between the belt and the pulley. The guarding material was somewhat flexible and there were 

gaps in the guarding with the result that a miner’s hand or clothing could get caught in the 

subject pinch point. 

I find that the violations were not S&S, however. The two pinch points were very low to 

the ground and were a considerable distance behind the existing guards. Although an injury was 

possible as a result of the cited conditions, it was not reasonably likely that anyone would be in a 

position to become entangled in the cited pinch points. As a consequence, it was not reasonably 

likely that the hazards contributed to by the violations would result in an event in which there 

was an injury. A person would have to be very low to the ground and reach up under the 

existing guards. Even then, it would not be very likely they would be injured at the pinch points 

because they were 20 inches or so beyond the guard. The gravity of the citations was low. 

I find that the negligence for Citation No. 6678829 was low. Given the position of the 

pulley and presence of the feeder, it was not readily obvious that additional guarding was 

required under the safety standard. The negligence for Citation No. 6678835 is moderate. I 

credit the testimony that Inspector Ramsey discussed the need to provide more substantial guards 

at tail pulleys. A penalty of $1,000.00 is appropriate for Citation No. 6678829 and a penalty of 

$4,000.00 is appropriate for Citation No. 6678835. 

D. Docket No. LAKE 2009-435 and LAKE 2009-436 

1. Order No. 6683115 and Citation Nos. 6683116 and 6683117 

On February 23, 2009, Inspector Scott Lee issued one order and two citations. The citations 

and order were issued at the same location along the slope belt. Order No. 6683115 was issued 

under section 104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.362(b) as 

follows: 

An inadequate exam was performed on the slope belt on the 2nd 

shift on 2/23/2009. A frozen bottom roller acting like a scraper 

approximately 30 ft. outby the slopes tail piece was observed with 

accumulations of combustible material in the form of coal fines 

underneath it. The fines were approximately 6ft. in width, 5ft. in 

length and 25 inches in height, (touching the bottom belt) and were 

packed around the roller on its inby side. The onshift examiner 

had just walked this belt approximately 45 mins. prior to this 

inspector observing this condition. Based upon this inspector’s 

experience this condition had been present for at least one shift. 

After the cited roller was removed a flat spot 47 inches in length 

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and 2 inches wide was measured on the roller, another indication 

that the condition had existed for some time prior to the 

examination. To abate the order all examiners will have to be 

retrained on how to examine a belt line properly. 

(Ex. GX-13). The inspector determined that an injury was reasonably likely to occur and that the 

injury could be expected to result in lost workdays or restricted duty. He further determined that 

the violation was S&S, the company’s negligence was high, and three persons were affected. 

Section 75.362(b), entitled “On-shift examination,” provides in part that “[d]uring each shift that 

coal is produced, a certified person shall examine for hazardous conditions along each belt 

conveyor haulageway where a belt conveyor is operated.” 30 C.F.R. § 75.362(b). The Secretary 

proposes a penalty of $6,624. 

Citation No. 6683116 was issued under section 104(a) of the Mine Act, alleging a 

violation of 30 C.F.R. 75.1725(a) as follows: 

A frozen bottom roller was observed approximately 30 ft. outby 

the slope belt’s tail piece. Accumulations of coal fines were 

packed around it on its inby side. This condition should have been 

observed by the on shift examiner during his examination 

approximately 45 minutes prior. 

(Ex. GX-14). The inspector determined that an injury was reasonably likely to occur and that the 

injury could be expected to result in lost workdays or restricted duty. He further determined that 

the violation was S&S, the company’s negligence was high, and three persons were affected. 

Section 75.1725(a), entitled “Machinery and equipment; operation and maintenance” provides 

that “[m]obile and stationary machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition shall be removed from service 

immediately.” 30 C.F.R. § 75.1725(a). The Secretary proposes a penalty of $9,634. 

Citation No. 6683117 was issued under section 104(a) of the Mine Act, alleging a violation 

of 30 C.F.R. 75.400 as follows: 

Accumulations of combustible material in the form of coal fines 

was allowed to accumulate and make contact with a bottom frozen 

roller. The accumulations measured approximately 6ft. in width, 

5ft. in length and 25 inches in height. This condition was observed 

approximately 30 ft. outby the slope belt tail piece. 

(Ex. GX-15). The inspector determined that an injury was reasonably likely to occur and that the 

injury could be expected to result in lost workdays or restricted duty. He further determined that 

the violation was S&S, the company’s negligence was high, and three persons were affected. 

The Secretary proposes a penalty of $18,271. 

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a. Background Summary of Testimony 

Inspector Lee testified that on February 23, 2009, he was inspecting the slope belt of the 

mine. (Tr. 1:238, 240) Lee has worked as an MSHA inspector for eleven years and has over 35 

years of experience in the mining industry. (Tr. 1:235). The location of the violation on the 

slope belt was approximately 30 to 40 feet outby the location Inspector Morris cited in Order No. 

6675150. (Tr. 1:240). Lee had decided to spot check this area because he had issued an order in 

the area a few weeks prior and to double-check the examiners who preshifted the slope belt 

thirty minutes earlier. (Tr. 1:240-41). Walking the belt line Lee saw accumulations under a 

roller from 30 to 40 feet away. (Tr. 1:241). The accumulations were touching the bottom of the 

belt and measured 25 inches in depth. (Tr. 1:241-42). Accumulations were observed on both 

sides of the roller with more on the outby side because the frozen roller was acting as a scraper 

on the return side of the belt. (Tr. 2:4-5). Lee testified that he observed the belt running and the 

roller not turning with the accumulations packed around the roller. (Tr. 1:242-43). Lee 

measured the accumulations to be approximately five feet in length and five feet in width, 

confined in the area around the roller. (Tr. :244-45, 247). The accumulations consisted of moist 

coal fines that had the potential to dry out. (Tr. :247). Inspector Lee issued one order and two 

citations based on the conditions he observed. (Tr. 1:246-47). Lee further testified that, based 

on his experience, the accumulations had been present for at least one shift because of the 

volume present. (Tr. 1:248). Lee reasoned that an examination on the belt line was performed 

around 45 minutes before his inspection at 3:45 p.m., and the next examination would not have 

been performed until six o’clock the next morning. (Tr. 1:249-50, 2:9). 

Regarding Order No. 6683115, the inadequate exam violation, Lee testified that he 

designated it as S&S because there was an ignition source present. (Tr. 1:251). Lee reasoned 

that the “frozen” roller created a heat source that could ignite the coal fines and start a fire. (Tr. 

1:251, 1:255). The roller was warm to the touch, but the exact temperature was not measured. 

(Tr. 1:251). Lee described the roller as flat on one side where the belt had been rubbing and was 

measured to be two inches wide and 47 inches long. (Tr. 1:251-52; Ex GX-16). The slope belt 

is along a main travel road, where smoke from a fire would affect anyone on the travel road. 

(Tr. 1:257). According to Lee, the hazard would be reasonably likely to occur because no one 

would be in the area to observe a fire. (Tr. 1:257-58). Lee further stated that the above 

characterization also applied to his designation of Citation No. 6683116, the machinery 

violation, and Citation No. 6683117, the accumulations violation, as S&S. (Tr. 2:10). 

Lee further testified that he designated the violation in Order No. 6683115 as an 

unwarrantable failure because the condition was obvious. (Tr. 2:10). Lee did not have to kneel 

down to see the accumulations and the slope belt is the primary hazard area within the travel 

way. (Tr. 2:11). A few weeks beforehand, Lee issued an order for a similar issue: 

accumulations had built up around bottom rollers on the same slope belt and an exam was 

performed 40 minutes prior. (Tr. 2:12). The operator had been made aware of problems with 

examinations by MSHA; three or four inadequate exam violations had previously been issued. 

(Tr. 2:12-13). Lee determined, based on his experience, that the accumulations had existed for a 

period of time because of the amount compacted around the roller. (Tr. 2:13). In Lee’s opinion, 

the accumulations existed when the examiner examined the slope belt 45 minutes prior to Lee’s 

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inspection. (Tr. 2:14). Lee further designated the order as high negligence because there were 

no mitigating circumstances; the examiner did not deal with the accumulations properly. (Tr. 

2:16). The order was abated after the examiners were given additional training concerning 

reporting hazardous conditions. (Tr. 2:21). 

Lee testified that he issued Citation No. 663116, the machinery violation, because the roller 

was not turning, which was evident by the flat spot on the roller. (Tr. 2:14). When the roller 

was taken out, the bearings were still working. (Tr. 2:14). Lee testified that when the 

accumulations became packed around the roller, the roller could no longer turn. (Tr. 2:14). Lee 

also designated this violation as high negligence for the same reasons as the inadequate exam 

violation above. (Tr. 2:17). Lee prepared the closeout report for the mine in March 2009, and 

section 75.400 violations had increased from the previous quarter. (Tr. 2:20). The belt was shut 

down and the roller was removed to abate this citation. (Tr. 2:22). 

Inspector Lee issued Citation No. 6683117 because combustible material had accumulated 

around the slope belt. (Tr. 2:17). The violation was determined to be high negligence because 

approximately 60 section 75.400 violations had been issued since the first of the year. (Tr. 2:18­

19; GX-17). The accumulations were shoveled and removed from the mine to abate this 

violation. (Tr. 2:22). 

On cross-examination, Lee admitted that some of the citations issued in January 2009 had 

been vacated by a judge. (Tr. 2:23-24). Additionally, the closeout report only references 

categories of violations and not specific section violations. (Tr. 2:24). CO sensors were also 

located on the slope belt. (Tr. 2:33). Lee testified that he was traveling with Mike Cummins, the 

union representative, and Cliff Kanady, the safety manager, while performing his inspection. 

(Tr. 2:37). 

Kanady testified that he has 40 years of mining experience and traveled with Inspector Lee 

in February 2009. (Tr. 2:43-44). Kanady did not notice any violations on the belt line until Lee 

showed him the frozen roller. (Tr. 2:45). The accumulations were not noticeable until Kanady 

“stooped over a certain amount;” the accumulations were on the outby side but not against the 

belt. (Tr. 2:46). Kanady testified that he considered the belt line to be clean and the walkway to 

be clear. (Tr. 2:47; Ex. R-5). On cross-examination, Kanady testified that he thought the roller 

looked new because it was still painted. (Tr. 2:51, 53). 

Ronnie Hughes, mine manager, testified that he went to the cited area shortly after the order 

and citations were issued. (Tr. 2:57). The belt mechanic and Cummins were changing out the 

roller, with accumulations on the inby side. (Tr. 2:58). Hughes took photographs of the area 

during this time. (Tr. 2:59; E. R-6). Photograph 6A shows the flat spot on the roller, with paint 

still on the roller. (Tr. 2:59-60; Ex. R-6A). Hughes reasoned that the roller had never turned and 

did not know when the roller was installed, but during the midnight shift the belts are not 

running and the maintenance crew changes out rollers. (Tr. 2:60). Photograph 6B shows the 

roller still in the hangers from the outby side, with the belt on the right side. (Tr. 2:61). 

Photograph 6C is from the same perspective as 6B, with Hughes testifying that he was on his 

knees, bent over at the waist taking the photograph. (Tr. 2:62). Photograph 6D shows the roller 

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from the inby side with accumulations shown. (Tr. 2:63). Photograph 6E is taken from the same 

perspective as 6D. (Tr. 2:63). According to Hughes, the accumulations were wet and damp. 

(Tr. 2:63). Photograph 6F shows Cummins helping the belt mechanic change the roller, with the 

top belt in view. (Tr. 2:64). Hughes states that the bearings were free on the roller after 

removal, but the accumulations were not packed around the bearings. (Tr. 2:65-66). At the time 

Hughes arrived at the violations to take photographs, he did not observe anybody shoveling in 

the area. (Tr. 2:68). 

On cross-examination, Hughes testified that the bottom belt was around 24 inches from the 

ground. (Tr. 2:69). Hughes agreed that it was easier to see under the belt from a distance due to 

the slope of the floor. (Tr. 2:70). Hughes stated that the accumulations were “shaped like a 

pyramid with the bottom approximately four [feet] across and the point touching the roller and 

the belt.” (Tr. 2:70). He could not tell if any accumulations had already been removed by the 

time he arrived. (Tr. 2:71). 

Scott Lawrence, the section foreman in February 2009, testified that he accompanied 

Hughes underground to the cited area. (Tr. 2:78). Lawrence stated that he could not see any 

accumulations until he got down on his knees to look underneath the belt. (Tr. 2:79). When he 

and Hughes arrived, miners were in the area working to raise the belt off the roller in order to 

change out the frozen roller. (Tr. 2:79-80). Lawrence testified that he believed the roller froze 

within a shift or half a shift because a flat spot does not take long to develop. (Tr. 2:81). The 

roller still had paint on it, suggesting that the roller never turned because paint would be gone in 

about an hour of use. (Tr. 2:82). The accumulations consisted of coal fines that were wet and 

damp. (Tr. 2:82). On cross-examination, Lawrence agreed that it was possible that 

accumulations could have caused the roller to freeze, but in this case the accumulations were not 

compacted even though accumulations were attached to the roller. (Tr. 2:85-86). 

Dennis Morris, the mine examiner in February 2009, testified that he onshifted the slope 

belt on February 23, 2009, around 3:00 p.m. (Tr. 2:90, 92, 96). Morris stated that he would 

walk the west side of the belt and every 60 to 80 feet he would get down on his knees and look 

under the belt. (Tr. 2:91). During the examination Lawrence noted, “carbon flakes and fines 

under belt, top to bottom” in the record book. (Tr. 2:93; R-2). Lawrence stated that he did not 

observe the condition that Inspector Lee wrote up. (Tr. 2:93). 

Charlie Hyers, mine examiner, testified that around 7:00 a.m. on February 23, 2009, he was 

on the day shift and examined the slope belt. (Tr. 2:103). Hyers remembers the roller in 

question because it was brand new and bright red, and it was turning at the time of his 

examination. (Tr. 2:104). Hayes also stated that it is not uncommon for a roller to stop turning 

on a belt and a flat spot would not take long to form because of the thickness of the slope belt. 

(Tr. 2:105). 

Chad Barras, the Midwest regional safety director for Peabody Energy, testified that he is 

familiar with the above violation types from the training he received while he was a ventilation 

inspector for MSHA. (Tr. 2:115). As part of Barras’s current job with Peabody, he reviews 

MSHA and industry reports as well as reports from the mines in his region. (Tr. 2:114-15). 

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Barras stated that he is familiar with the Bentley Report regarding the MSHA study on belt fire 

injuries. (Tr. 2:116; Ex. R-7). In the Bentley Report, from 1980 to 2005 there were no fatalities 

and no lost time from belt fires. (Tr. 2:117-18). The mine had fire protection systems located 

along the belt line consisting of CO systems, fire suppression systems, and belt slip detection 

systems that cannot be turned back on remotely. (Tr. 2:118-19). Barras also testified that the 

ignition temperature of processed coal at the mine is 880 degrees Fahrenheit and unprocessed 

coal or wet coal would raise the ignition temperature. (Tr. 2:119-20). Peabody has tested 

samples of “corn flakes” along the belt line in mines that it operates. When this material was 

tested at the Willow Lake Mine, it was 40% combustible. (Tr. 2:121). Additionally, Barras has 

used heat guns to determine operating temperatures of mining equipment. (Tr. 2:121). Belt 

rollers were measured to typically operate around 80 degrees Fahrenheit, with data showing a 

maximum temperature around 180 degrees Fahrenheit. (Tr. 2: 122). Barras testified that he 

believes Inspector Lee’s determination that each violation was reasonably likely to result in an 

injury is not correct. (Tr. 2:122). The accumulations were wet, the machine temperatures could 

not have been around 800 degrees Fahrenheit and fire protection systems were in place along the 

belt line. (Tr. 2:123-24). On cross-examination, Barras testified that on one occasion the mine 

had been cited for a fire suppression violation when the water within had been turned off. (Tr. 

2:129-30). After the Bentley Report was issued in 2005, a belt fire occurred where two miners 

got lost in a belt fire and died. (Tr. 131). 

b. Summary of Parties’ Arguments 

The Secretary argues that the evidence established that sections 75.362(b), 75.1725(a), and 

75.400 were violated. Coal accumulations were clearly visible to Inspector Lee and these 

accumulations had existed for more then a shift because the coal was packed around the belt 

roller. (Sec’y Br. 21-22). The belt roller was not in a safe condition because the roller was 

“frozen,” causing more accumulations and frictional heat. (Sec’y Br. 22). An examiner had also 

walked the belt line with the conditions present but did not take any action. (Sec’y Br. 22). All 

three violations are S&S because two ignition sources were present: (1) frictional heat between 

the belt and the frozen roller, and (2) frictional heat between the accumulations against the belt. 

(Sec’y Br. 23). The frozen roller had been “flattened” on one side from the belt line and was 

warm to the touch. Additionally, the accumulations were pressing against the running belt. 

These conditions would have continued to exist for a significant period of time because no one 

was working in the area and the next examiner would not have walked by until the next day. 

(Sec’y Br. 24). A fire was reasonably likely to occur due to these conditions. (Sec’y Br. 24). 

The examiner’s failure to record the hazardous condition exposed miners to injuries from a belt 

fire. (Sec’y Br. 24). 

The inadequate examination violation was properly designated as an unwarrantable failure 

and the accumulations and equipment violations designated as high negligence because the 

condition was “extensive, obvious, posed a high degree of danger, existed long enough for 

miners to be exposed to the danger, and the mine had been placed on notice.” (Sec’y Br. 25). 

Lee walked the belt line no more than 45 minutes after the examiner and the conditions likely 

existed when the examiner had been there because of the volume of accumulations. The belt 

roller also had a flat spot on it, indicating that the roller had been frozen for some time. The 

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condition was obvious because Lee observed the accumulations from 30 to 40 feet away. The 

operator had been on notice to more quickly remove accumulations on the slope tail belt due to 

previous citations and verbal communications by MSHA inspectors. 

Big Ridge contends first that no violation for section 75.362(b) occurred because no 

hazardous condition existed for an examiner to report. (Big Ridge Br. 21). Morris, the 

operator’s examiner, did not observe any contact between accumulations and the belt or observe 

any frozen rollers. Coal flakes were noted for further action in the record, but generally the 

operator’s examiners performed an adequate exam by walking the entire belt line, stopping every 

60 to 80 feet to look under the belt line with a cap light. Next, Big Ridge contends that the 

finding of an unwarrantable failure was inappropriate. (Big Ridge Br. 23). The condition was 

not obvious or extensive. The accumulations did not reach into the walkway and were only five 

feet wide and two feet high. Also, during the examination, the frozen roller, painted red, was not 

observed. The condition did not present a high degree of danger because the accumulations were 

wet, the roller was not hot, and the belt line had a working fire suppression system. Therefore, 

no aggravated conduct was present by the operator. 

The designation of all three violations as S&S is also contested by Big Ridge because an 

injury-causing event was unlikely to occur. (Big Ridge Br. 25). The accumulations were neither 

extensive nor dry, making ignition difficult. The accumulations were mostly comprised of noncombustible material and no methane was present. If a fire were to occur, the presence of fire 

detection and suppression systems would reduce the spread of a fire and the likelihood of an 

injury. Big Ridge finally contests the high negligence designations of the accumulation violation 

and the equipment violation. (Big Ridge Br. 26). The section 75.400 violation was small in size, 

not obvious, and underneath the belt. The walkway within the area of the violation was narrow, 

four feet wide, and was not well lit. Finally, it was unclear when the conditions developed. 

c. Discussion and Analysis 

For the following reasons, I affirm Order No. 6683115 in all respects. Big Ridge violated 

section 75.362(b) because the on-shift examination was clearly inadequate. I credit the 

testimony of Inspector Lee as to the conditions he found. Based on the evidence presented at the 

hearing, I find that these conditions were a “hazardous condition,” as that term is used in the 

safety standard. This standard specifically directs mine operators to examine each belt conveyor 

haulageway and this particular belt haulageway is used to transport all of the coal out of the 

mine. I further find that these conditions were obvious and should have been discovered by the 

on-shift examiner. Inspector Lee saw the accumulations from a distance of about 40 feet. This 

examiner passed through the area about 45 minutes prior to the time Inspector Lee observed the 

condition. I find that the credible evidence demonstrates that the conditions had not changed 

significantly in those 45 minutes. 

Conducting adequate pre-shift and on-shift examinations is crucial to maintain a safe 

environment in underground coal mines. On that basis I find that the violation was serious and 

S&S. Failure to perform adequate workplace examinations creates a measure of danger to safety 

that is reasonably likely to contribute to a hazard that will result in an injury of a reasonably 

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serious nature. In this instance, coal fines were present that were 25 inches high in some places 

and were packed around the frozen roller. This condition created a significant safety hazard that 

should have been noted by the examiner and addressed by the operator. As stated above, I credit 

the testimony of the inspector as to the conditions he observed. 

I also find that Big Ridge was highly negligent and that the violation was the result of its 

unwarrantable failure to comply with the safety standard. Inspector Lee had issued an order for 

a similar condition in the same general area along the slope belt a few weeks earlier. In addition, 

as discussed above, Inspector Morris issued an order for a violation of section 75.360(a)(1) along 

the slope belt on October 28, 2008. The operator had been placed on notice that its examiners 

need to perform examinations that are more thorough and comprehensive. The violation was 

obvious and it had existed for at least a shift. Big Ridge exhibited a serious lack of reasonable 

care with respect to this violation. A penalty of $20,000.00 is appropriate. 

With respect to Citation No. 6683116 alleging a violation of section 75.1725(a), I find that 

the Secretary established a serious violation. It is clear that a roller was frozen about 30 feet 

outby the tail piece for the slope belt. Because it was frozen, it acted as a scraper and coal fines 

accumulated around the roller and also fell to the floor under the roller. It was this frozen roller 

that created the accumulation. I find that the condition had existed for some time because the 

belt had worn down the metal on the roller to the extent that there was a two-inch wide flat spot 

on the roller that extended almost the width of the belt. The remainder of the roller was still 

covered with paint. In all likelihood the roller had never turned or, if it turned at all, it did so for 

a very short period of time. I conclude that this equipment had not been maintained in a safe 

operating condition and it was not removed from service. 

I find that the operator’s negligence was moderate. The evidence establishes that the cited 

condition was due to unusual circumstances. Given that the roller was still covered in paint, it is 

more than likely that it failed long before one would expect and the roller may not have ever 

functioned properly. When tested after it was removed from service, the bearings worked and 

the roller turned. Although examiners are expected to look for defective rollers, I hold that the 

failure of the operator to replace or repair this roller did not amount to high negligence. 

With respect to Citation No. 6683117 alleging a violation of section 75.400, I find that the 

Secretary established the violation and that Big Ridge’s negligence was high. As stated above, a 

competent on-shift examination should have discovered this violation and the accumulations 

should have been removed. The conditions were rather obvious. 

Whether Citation Nos. 6683116 and 6683117 were S&S is a closer question. The 

temperature at which the coal at this mine will ignite is rather high. I credit the testimony of Mr. 

Barras on this issue. Although the frozen roller was warm, it was unlikely that it would have 

gotten hot enough to ignite the coal fines, assuming continued mining operations. In addition, a 

high percentage of the accumulations were incombustible. Mr. Barras credibly testified that the 

combustible content of material that sticks to rollers at the mine is about 40%. (Tr. 120-21). 

The CO monitoring system and fire suppression system would activate in the event the 

accumulations started to smolder. I find that these two violations were not S&S. It was not 

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reasonably likely that the hazard contributed to by the violations would result in an injury. It 

was unlikely that anyone would suffer a serious injury as a result of the violations, assuming 

continued mining operations. The violations were serious, however, because, in the event a fire 

started and all of the fire suppression systems failed, one or more miners could suffer from 

smoke inhalation. 

A penalty of $8,000 is appropriate for Citation No. 6683116 and a penalty of $12,000.00 is 

appropriate for Citation No. 6683117. 

2. Order No. 6683119 

On February 26, 2009, Inspector Lee issued Order No. 6683119 under section 104(d)(2) of 

the Mine Act, alleging a violation of 30 C.F.R. § 75.360(a)(1)3

 as follows: 

An inadequate exam was made of the main north intake/primary 

escape way for the south side of the mine. One roof bolt had fell 

out of the roof exposing an area 8 ft. in width by 91⁄2 ft. in length. 

This area was immediately adjacent to the lifeline. It was evident 

by at least one set tire tracks from the examiner’s ride on top of the 

fallen rock, (which resulted from the missing roof bolt) that this 

condition had existed for at least one shift. Other tire tracks in the 

cited area indicated that the examiners had been driving around 

this exposed area of unsafe roof for some length of time. There 

was no record of this hazardous condition in the mine record 

books. 

(Ex. GX-21). The inspector determined that an injury was highly likely to occur and that the 

injury would be permanently disabling. He further determined that the violation was S&S, the 

company’s negligence was high, and one person was affected. The Secretary proposes a penalty 

of $17,301. 

a. Background Summary of Testimony 

Inspector Lee testified that on February 26, 2009, at 8:15 in the morning he issued Order 

No. 6683119 because he observed a roof bolt on the ground with fallen rock around in a travel 

area of the mine. (Tr. 2:136-37). He observed tire tracks on the ground change from the original 

pathway to avoid the debris on the ground. (Tr. 2:137). Additionally, there were tire tracks on 

top of the debris showing someone had driven over the top of the rocks. (Tr. 2:137). Some of 

the tracks went around these rocks. From this evidence Lee determined that the condition had 

existed for some time and an examiner would have been through the area with the condition 

3

 A few days before the hearing, the Secretary moved to amend Order No. 6683119 to change 

the safety standard alleged to have been violated from section 75.362(b), as written by Inspector 

Lee, to section 75.360(a)(1). (see Tr. 1:6-9). The Secretary’s motion to amend is hereby 

GRANTED. 

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present. (Tr. 2:138). The area in question is in the main north intake primary escapeway, 74 

crosscut. (Tr. 2:139, 141). Lee described the condition as a 36 to 48 inch long roof bolt lying on 

the ground with about an eight to nine foot diameter area of rock, six to eight inches deep that 

fell from the roof. (Tr. 2:139-40). The roof bolt was a grouted type bolt. (Tr. 2:140). Lee 

testified that he did not see any flagging in the area and no tire tracks from heavy machinery 

were around. (Tr. 2:142, 145). Lee stated that an examiner would typically need to flag the 

condition and record it. (Tr. 2:144). This particular area did not see a lot of traffic, Lee noted. 

(Tr. 2:144). Also, the area was preshifted by examiners every shift because it was part of the 

route to get to the seals. (Tr. 2:146-47). Lee testified that he issued the order under the wrong 

standard, and the standard should have been under section 360(a)(1). (Tr. 2:151). Section 

360(a)(1) requires that examinations occur in any location where miners are going to travel or 

work. (Tr. 2:152). The roof bolt was required as part of the Mine’s roof control plan. (Tr. 

2:154). 

Lee further testified that he determined that the condition was highly likely to result in an 

injury because the hazard was not properly dealt with, though the area has no known history of 

roof falls. (Tr. 2:155). The injury was designated as potentially permanently disabling because 

of the potential for large pieces of falling rock. (Tr. 2:156). The violation was designated as 

S&S because the roof system was weakened by the removal of a roof bolt and a lifeline is 

adjacent to the condition. (Tr. 2:156). The operator’s negligence was determined to be high 

because of previous inadequate exam violations in the quarter. (Tr. 2:157). Lee himself had 

written three to four inadequate exam violations within the quarter. (Tr. 2:160). Lee testified 

that every time that he had issued an inadequate exam violation he spoke with the operators. (Tr. 

2:157). To abate the order mine management retrained the examiners on recognizing hazards. 

(Tr. 2:158). The violation was characterized as an unwarrantable failure because the condition 

was obvious and the operator knew it was having troubles with examinations. (Tr. 2:162). 

When Lee looked at the preshift paperwork, there were no notes regarding the fallen roof bolt. 

(Tr. 2:162). Lee spoke with Bart Schiff about the order and discussed the problems of 

inadequate exams. (Tr. 2:168). On cross-examination, Lee testified that the violation area was 

not a travelway but an intake and workers would typically not be in the area. (Tr. 2:171). 

Additionally, the area is not an active working section of the mine. (Tr. 2:178). The violations 

Lee relied on had not become final, and some subsequently had been vacated. (Tr. 2:179:80). 

Schiff, the mine safety manager, testified that he had accompanied Inspector Lee on 

February 26, 2009. (Tr. 2:191). He was not with Lee when the condition was first encountered, 

but observed a roof bolt “sheared off” and lying on the ground with the plate and some rock. 

(Tr. 2:192-93). The roof bolt on the ground was not the entire roof bolt. (Tr. 2:193). The 

escapeway area at the time was not part of the two officially designated escapeways out of the 

working section. (Tr. 2:194). Schiff testified that he could not determine when the condition 

occurred. (Tr. 2:197). On cross-examination, Schiff stated that heavy machinery had not been 

in the area for a year or two, but did not think that any equipment sheared the bolt. (Tr. 2:198­

99). He thought that the roof bolt might have been damaged during installation. (Tr. 2:200). 

Kevin Rice, the mine examiner, testified that he had been an examiner for four to five 

years. (Tr. 2:206). On February 25 and 26, he was performing the preshift examinations in the 

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area in question. (Tr. 2:209-10). Rice stated that on February 25, no roof bolt had fallen within 

the area, and then on the next day two timbers supported the roof and a roof bolt was on the 

ground. (Tr. 2:210). Rice wrote up a statement for Lee after he found out that an order was 

issued, because he had not personally spoken with Lee. (Tr. 2:213; Ex. R-10). On crossexamination, Rice testified that he had been driving around fallen rock in the intake because it is 

customary to leave rock on the ground when scaling down loose rock in between pins. (Tr. 

2:215-16). 

b. Summary of Parties’ Arguments 

The Secretary argues that the examiner failed to record the unsupported roof in the north 

intake and thus violated section 75.360(a)(1). (Sec’y Br. 29). A roof bolt was lying on the 

ground with rocks around it, and tire tracks where located around and over the debris. This 

indicates that examiners had traveled through the area and knew about the hazardous condition. 

The violation was properly designated as S&S and highly likely because the missing roof 

support exposed miners to falling rocks. The violation was also the result of an unwarrantable 

failure because the condition was obvious, had existed for more than two examinations, and the 

operator was on notice for the quality of examinations. 

Big Ridge contends that no violation existed because the roof bolt fell between the time 

Inspector Lee arrived and Rice’s prior examination and thus the condition had not been present 

during Rice’s exam. (Big Ridge Br. 29). It argues that the presence of tire tracks does not help 

establish the violation. Rice credibly testified that some material had previously fallen from the 

roof between roof bolts so these tracks are unrelated to the alleged violative condition. 

c. Discussion and Analysis 

There is no dispute that a roof bolt had fallen out at the location cited by Inspector Lee. 

What is not clear is when the bolt fell and what caused it to fall. The cited area, although 

required to be examined, was not a travelway or a designated escapeway. Mr. Schiff’s testimony 

that the bolt had not been properly installed is the most logical explanation. Only part of the bolt 

fell out. Heavy equipment had not been in the area for several years so it had not been recently 

damaged. 

I find that the Secretary did not establish a violation because it is not at all clear when the 

roof bolt fell. Although Inspector Lee testified that there were tire tracks over fallen rock, Rice 

credibly testified that loose rock had been scaled down between pins in this area. (Tr. 2:215). 

Examiners may have driven over or around such loose rock. Rice testified that he only records 

roof conditions under these circumstances if he finds loose roof bolts, bolts that have fallen, or if 

so much material has fallen that it creates a hazard. He said that the cited roof bolt had not fallen 

at the time of his examination on February 25. (Tr. 2:210; Ex. R-10). 

The Secretary bears the burden of establishing a violation of her safety standard. In this 

instance, I find that it is not clear when the roof bolt fell. There is conflicting evidence on this 

point. Rice was an experienced examiner and his testimony was credible. Given that the roof 

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had been crumbling in that area, the presence of rock on the floor of the mine with tire tracks 

over and around the rocks does not establish when the bolt had fallen. The inspector’s analysis 

of the conditions was based almost entirely on his interpretation of the tire tracks. He assumed 

that the rock had fallen at the same time as the roof bolt. (Tr. 137). Based on the record, I find 

that his conclusions were speculative. Order No. 6683119 is hereby VACATED. 

3. Citation No. 6683100 

On February 9, 2009, Inspector Lee issued Citation No. 6683100 under section 104(a) of 

the Mine Act, alleging a violation of 30 C.F.R. § 75.1103 as follows: 

When the fire suppression system was tested at the belt drive and 

take-up area it would not give a warning to the belt monitor 

located on the surface. This condition was observed on the 4C 

belt. It was immediately taken out of service. 

Ex. GX-26. The inspector determined that an injury was reasonably likely to occur and that the 

injury would be expected to include lost workdays or restricted duty. He further determined that 

the violation was S&S, the company’s negligence was moderate, and three persons were 

affected. Section 75.1103, entitled “Automatic fire warning devices” provides that “[d]evices 

shall be installed on all such belts which will give a warning automatically when a fire occurs on 

or near such belt.” 30 C.F.R. § 75.1103. The Secretary proposes a penalty of $1,795. 

a. Background Summary of Testimony 

Inspector Lee testified that he issued Citation No. 6683100 on February 9, 2009, at 6:20 

p.m. because the fire suppression system did not produce a warning on the surface when tested. 

(Tr. 2:221-22). The fire suppression system was located on the 4C belt line and the warning 

indicates that there could be a fire at a specific location. (Tr. 2:222-23). The main purpose of 

the fire suppression system is to give early warnings to the operator in order to better control 

fires and reduce injuries. (Tr. 2:223-24). Lee testified that he was with Kanady and Greg Fort 

during his inspection of the fire suppression system. (Tr. 2:225). To check the fire suppression 

system, a test valve turns on water simulating what the system would do in the case of an actual 

fire. (Tr. 2:227, 233). Lee stated that Fort was the one who performed this task. (Tr. 2:233). 

When the test valve is on, the system will notify the belt monitor, located on the surface, that the 

belt line fire suppression system is working. (Tr. 2:229). The system has a five-second delay 

between when the valve is turned on to when the warning is received. (Tr. 2:228). According to 

Lee, the belt monitor, after noticing the warning, should alert the mine manager of the situation. 

(Tr. 2:230). Lee checks to see if the belt line stops and also waits for a call on the mine phone 

for the belt monitor on the surface to inform him of the warning. (Tr. 2:230-31). During the 

test, the belt line shut down as designed, but Lee never received a call from the monitor about 

there being a warning relayed above. (Tr. 2:233). Lee had another worker call up to the monitor 

to ask if a warning had been received on the 4C line, but no warnings had been received. (Tr. 

2:235-36). Before Lee issued the violation, he tested the fire suppression system one more time, 

with the same result. (Tr. 2:237). 

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Lee further testified that he designated the violation as reasonably likely to result in injury 

because the warning is a significant part of the fire suppression system. (Tr. 2:239-40). 

Stopping the belt line and spraying water are not always sufficient to stop a fire within the mine. 

(Tr. 2:240). When the warning system is not working properly the early detection of a fire is 

lost, thereby increasing the possibility of injuries. (Tr. 2:241). Lee testified that lost work days 

or restricted duties could occur because of smoke inhalation from the fire. (Tr. 2:241). The 

violation was determined to be S&S because the smoke from a fire could cause a serious injury. 

(Tr. 2:244). The negligence was moderate because the operator might not have known that the 

system was not functioning properly. (Tr. 2:245). Three days prior, the system check showed 

that it was working properly. (Tr. 2:245). Lee determined that the additional presence of a CO 

monitoring system in the area had no effect on the violation because it is not very reliable. (Tr. 

2:247). Lee abated the citation three days later when the test of the system showed a warning 

alarm was being received by the monitor above. (Tr. 2:250). 

On cross-examination Lee testified that he did not write down in his notes that he tested the 

fire suppression system twice on February 9, 2009. (Tr. 2:251-52). Lee agreed that, under 

section 75.1103(4)(a), the belt must be equipped with automatic fire sensors and warning devices 

and that, under section 75.1101(10), carbon monoxide monitors or point heat sensors are 

required. (Tr. 2:256). Lee also stated that he did not have any data showing that CO systems 

were not reliable. (Tr. 2:259). 

Fort, the Union representative, accompanied Inspector Lee during the testing of the 4C belt 

line fire suppression system. (Tr. 2:261). Fort testified that the system was tested twice and 

each time the monitor received no warnings. (Tr. 2:262-63). Furthermore, Fort stated that 

during this time frame at the mine, the CO system was having “a lot of trouble” and had many 

false readings, but none around the belt drive. (Tr. 2:265-66). On cross-examination, Fort 

testified that Inspector Lee turned the water valve on to test the fire suppression system. (Tr. 

2:268). During the test, the belt shut down and the underground alarms went off. (Tr. 2:269). 

Kanady testified that he did not recall testing the fire suppression system more than once or 

who actually opened the valves for the test. (Tr. 2:270-71). An underground alarm did go off by 

the belt line, however. (Tr. 2:271). 

Butler, the belt foreman, testified that after the citation was issued the fire suppression 

system was tested again and the entire system worked fine. (Tr. 2:273-74). He opined that Lee 

did not let the water run long enough for the system to work. (Tr. 2:274). On cross-examination 

Butler stated that he did not personally re-test the fire suppression system and noted that all the 

belts in the mine were on the five-second delay. (Tr. 2:277, 279). 

Jeff Klope, the electrical foreman, testified that there is a three-second delay in the local 

system and then a seven-to ten-second further delay on the network to scan the system. (Tr. 

2:283). The delay could be up to thirteen seconds, but also could be less. (Tr. 2:284). MSHA 

requires that CO sensors be calibrated and checked. (Tr. 2:286). In February of 2009, Klope 

testified that the CO system in the mine was not experiencing any problems. (Tr. 2:287). 

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b. Summary of Parties’ Arguments 

The Secretary argues that the operator violated section 75.1103 because the fire suppression 

system failed to send a warning to the belt monitor on the surface. (Sec’y Br. 32). Lee had 

tested several belt lines that day, all with the five-second delay, and the 4C line was the only one 

that did not send a signal to the surface. Lee let the water run for a sufficient time in order to 

bypass the delay. The violation was properly designated as S&S because the warning alarm 

failure will reduce the response time in a fire. (Sec’y Br. 33). The Secretary contends that in 

this instance the S&S designation should be evaluated while assuming the existence of an 

emergency because warning systems are designed to protect in the case of an emergency. 

Big Ridge first argues that no violation existed because the wrong standard was cited and 

no violation existed. (Big Ridge Br. 30). Section 75.1103 only applies to point heat sensors or 

CO monitoring devices. Along the belt line, the fire warning device was the CO system. 

Section 75.1103(10) addresses the fire suppression system and does not require a warning alarm 

be sent to the surface. Big Ridge contests the performance of the test arguing that Lee or Fort 

did not let the system run for longer than five seconds. If a violation did exist Big Ridge also 

contests the designation of S&S. (Big Ridge Br. 33). The CO system on the belt line would 

produce a warning of a fire, and was functioning at the time of the test. A belt shut down would 

draw a response because it would halt production inby. Therefore, there would be no delay in 

response time if a fire had occurred. 

c. Discussion and Analysis 

The cited safety standard requires that devices be installed at belts that will give a 

warning automatically when a fire occurs. This section does not require fire suppression 

systems. As a consequence, whether the water-based fire suppression system was working is not 

covered by the safety standard. Assuming that the water-based fire suppression system was the 

only warning device installed at the cited location, it did provide a visual and audible warning 

when tested by the inspector. More importantly, Big Ridge had installed a CO monitoring 

system that would give a warning if a fire were detected. Although Fort testified that it would 

sometimes give false readings, there was no evidence that the CO monitoring system was not 

functioning properly at the time of the inspection. 

Section 75.1103-1 provides that fire sensing systems installed on belt conveyors must 

“provide both audible and visual signals that permit rapid location of the fire.” 30 C.F.R. § 

75.1103-1. The system cited in this instance did give audible and visual signals and miners 

underground would normally be able to determine where the system had been activated. Of 

course, if a signal had been received by the belt monitor on the surface, the precise location of a 

potential fire would have been immediately known. Nevertheless, I credit the evidence 

presented that Big Ridge uses the CO monitoring system as its fire detection system, which also 

notifies personnel on the surface when a fire has been detected. 

Section 75.1101-10 is the safety standard that more closely fits the fire suppression 

system in use at the Willow Lake Portal. It provides that each water sprinkler system shall be 

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equipped with a device designed to stop the belt drive in the event of a rise in temperature and 

requires that “each such warning device shall be capable of giving both an audible and visual 

warning when a fire occurs.” 30 C.F.R. § 75.1101-10. This standard clearly applies to the fire 

suppression system cited by the inspector and there is no indication that this standard was 

violated. 

I find that a violation of section 75.1103 was not established. Citation No. 6683100 is 

VACATED. 

III. SETTLED CITATIONS 

The parties presented a settlement offer at the hearing for those citations that were not 

adjudicated at the hearing. The proposed settlement is as follows: 

Citation/Order Modification to 

Citation 

Proposed 

Penalty 

Amended 

Penalty 

Lake 2009-326 

6679522 Modify to 1 Affected $9,634 $6,458 

6674555 Modify to Non S&S $1,944 $392 

6674640 $1,304 $1,044 

6683615 Modify to 3 Affected $2,473 $807 

9942532 $1,944 $1,944 

6678792 $1,944 $1,944 

6678795 $1,944 $1,944 

6678796 Modify to Permanently 

Disabling; Partial 

Penalty Reduction 

$3,996 $2,400 

6679920 $3,405 $3,405 

6679921 $1,657 $1,657 

9942536 Modify to Moderate 

Negligence 

$8,893 $2,678 

LAKE 2009-436 

6683974 $1,026 $923 

7572890 Modify to Non S&S $3,405 $688 

6683095 Modify to 8 Affected $9,634 $6,996 

6682840 $12,248 $9,799 

6683975 $2,748 $2,102 

6683977 $2,473 $2,102 

6683979 $2,473 $2,102 

6683980 $2,473 $2,102 

6683983 $2,678 $2,276 

6683985 $2,473 $2,102 

6683098 Modify to 3 Affected $1,111 $363 

6683987 Modify to Moderate 

Negligence 

$2,901 $874 

6683099 Modify to 3 Affected $1,304 $426 

6683101 Modify to Non S&S $5,080 $1,026 

6683991 Modify to Moderate 

Negligence 

$2,901 $874 

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6683992 Modify to Reasonably 

Likely 

$12,248 $5,503 

6683993 $5,503 $5,503 

6683994 $3,689 $3,136 

6683104 Modify to Non S&S $1,530 $309 

6683995 $3,143 $2,892 

6683105 Modify to Moderate 

Negligence 

$3,143 $947 

7572894 Modify to Non S&S $3,996 $807 

6683108 $3,143 $2,892 

6683110 Modify to Non S&S $5,080 $1,026 

6683114 $4,689 $3,752 

8414006 $3,143 $2,829 

6680506 $1,795 $1,795 

6683120 $11,306 $10,175 

8414008 $3,143 $2,829 

8414010 $5,080 $4,064 

8414011 $6,458 $5,167 

8414012 Modify to Non S&S $8,893 $1,796 

6680675 Modify to Moderate 

Negligence 

$1,530 $461 

LAKE 2009-705 

6682989 $17,301 $17,301 

8417664 $5,645 $4,516 

LAKE 2009-706 

6682990 Modify to 8 Affected $48,472 $37,416 

8417432 $2,901 $2,611 

8417434 Modify to Non S&S $1,657 $335 

8417436 Modify to 4 Affected $27,259 $19,793 

8417437 Modify to 4 Affected $2,473 $1,795 

6682993 Modify to Permanently 

Disabling; Partial 

Penalty Reduction 

$3,996 $2,400 

8417438 Modify to Non S&S $1,657 $335 

8417439 Modify to Non S&S $2,106 $426 

8417440 Modify to Moderate 

Negligence 

$14,373 $4,329 

6682996 Modify to Permanently 

Disabling; Partial 

Penalty Reduction 

$3,996 $2,400 

8417441 Modify to Non S&S $2,473 $500 

8417442 $5,961 $5,961 

8417443 Modify to Non S&S, 

Moderate Negligence 

$6,458 $392 

8417444 $2,106 $2,106 

8417445 $3,996 $3,597 

6682999 Modify to Moderate 

Negligence 

$10,437 $3,144 

8417446 Modify to Moderate $5,080 $1,530 

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Negligence 

8417447 $3,405 $3,065 

8417451 $1,412 $1,271 

8417455 $15,570 $12,456 

8417456 Modify to Non S&S, 

Moderate Negligence 

$4,689 $285 

8417458 Modify to Non S&S $1,795 $362 

8418003 Modify to Non S&S, 

Moderate Negligence 

$6,458 $392 

8418004 $2,282 $2,054 

8417680 Modify to Non S&S $5,503 $1,111 

Total Settlement Amount: $247,194 

I have considered the representations and documentation submitted and I conclude that the 

proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act. 

III. APPROPRIATE CIVIL PENALTIES 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are 

not disputed. (Ex. GX-41). At all pertinent times, Big Ridge, Inc., was a large mine operator. 

The violations were abated in good faith. The penalties assessed in this decision will not have an 

adverse effect on Big Ridge’s ability to continue in business. The gravity and negligence 

findings are set forth above. 

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IV. ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation/Order No. 

LAKE 2009-325

 6675150 

6675151 

LAKE 2009-326

 6678829 

6678835 

LAKE 2009-435 

6683115 

6683119 

LAKE 2009-436

 6683100 

6683116 

6683117 

LAKE 2009-706 

8417452 

SUBTOTAL 

SETTLED CITATIONS 

TOTAL PENALTY 

30 C.F.R. § 

75.400 

75.360(a)(1) 

75.1722(b) 

75.1722(b) 

75.362(b) 

75.360(a)(1)

75.1103

75.1725(a) 

75.400 

75.400 

Penalty 

$15,000.00

$20,000.00 

$1,000.00

$4,000.00 

$20,000.00 

 VACATED 

VACATED

$8,000.00

$12,000.00 

$10,000.00 

$90,000.00 

$247,194.00 

$337,194.00 

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For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or 

VACATED as set forth above. Big Ridge, Inc., is ORDERED TO PAY the Secretary of Labor 

the sum of $337,194.00 within 40 days of the date of this decision.4 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Tyler P. McLeod, Esq. and Francesca Cheroutes , Esq., Office of the Solicitor, U.S. Department 

of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail) 

R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 

Liberty Ave., Pittsburgh, PA 15222 (Certified Mail) 

RWM 

4

 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. 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 5, 2012 

EXCEL MINING, LLC., : CONTEST PROCEEDING 

Contestant, :

 : Docket No. KENT 2008-1481-R 

v. : Order No. 8216265; 7/21/2008 

:

SECRETARY OF LABOR : Mine ID: 15-08079 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Mine: Mine No. 3 

Respondent. :

 :

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. KENT 2009-33 

Petitioner, : A.C. No. 15-08079-162018-01 

:

v. :

 :

EXCEL MINING, LLC., :

 Respondent. : Mine No. 3

 DECISION 

Appearances: Matt S. Shepherd, Esq., of the Office of the Solicitor, U.S. Department of Labor, 

Denver, CO, on behalf of the Secretary of Labor; 

Noelle Holladay True, Esq., of Rajkovich, Williams, Kilpatrick, Lexington, KY, 

and Gary D. McCollom, Esq., Corporate Counsel for Excel Mining, LLC, on 

behalf of Respondent, Excel Mining, LLC. 

Before: Judge L. Zane Gill 

Procedural History 

This case involves a Petition for Assessment of Civil Penalty filed by the Secretary of 

Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). It alleges that Excel Mining, LLC (“Excel”) is liable for a single 104(d)(1) violation1 

of the Secretary's Mandatory Safety Standards (30 C.F.R. § 75.220) for Underground Coal 

1

 The Secretary’s original Petition for Assessment of Civil Penalty charged Excel with 20 

violations of the Act and proposed a total penalty of $95,293.00. The parties were able to reach 

settlement on 19 of those charges. Only citation No. 8216265 remains to be decided here. 

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Mines, and seeks a total civil penalty of $23,229.00. A hearing was held on April 6, 2011, in 

Pikeville, KY. The parties filed briefs after receipt of the transcript. 

For the reasons set forth below, I find that Excel committed a violation of 30 C.F.R. § 

75.220, but I reduce the negligence to “moderate.” I conclude that the violation was significant 

and substantial (“S&S”) and constituted an unwarrantable failure to comply with the alleged 

mandatory standard. Thus, I impose a civil penalty in the amount of $6,997.00. 

Stipulations 

1.	 At all times relevant to this proceeding, Excel Mining, LLC was the operator of the No. 3 

mine, Mine ID Number 15-08079. 

2.	 The No. 3 mine is a “mine”, as that term is defined in Section 3(h) of the Mine Act, 30 

U.S.C. Sec. 802(h). 

3.	 At all times relevant to this proceeding, products of the No. 3 mine entered commerce or 

the operations or products thereof affected commerce within the meaning and scope of 

Sec. 4 of the Mine Act, 30 U.S.C. Sec. 803. 

4.	 Employees at the No. 3 mine produced more than 1.7 million tons of coal in 2008. Excel 

Mining, LLC is a “large operator.” 

5.	 A copy of the citation at issue in this proceeding was served on Excel Mining, LLC by an 

authorized representative of the Secretary. 

6.	 Excel Mining, LLC timely contested the citation. 

7.	 Excel Mining, LLC is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission, and the presiding Administrative Law Judge has the authority to 

hear this case and issue a decision regarding this case. 

8.	 The proposed penalties will not affect Excel Mining, LLC’s ability to remain in business. 

9.	 On January 25th, 2011, counsel for the Secretary requested that the Respondent produce 

copies of the pre-shift reports that were completed from July15th, 2008 to July 22nd 2008 

for the 004 section. The Respondent has indicated that these reports are no longer 

available. 

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Allegations 

Citation No. 8216265 (Exhibit G-1) alleges that Excel violated the mandatory standard 

found at 30 C.F.R. § 75.220, relating to roof control plans (“RCP”). Specifically, it alleges that 

Excel failed to maintain the minimum pillar block size required by its approved RCP during 

retreat mining at its Mine No. 3. It alleges that the RCP prohibits cutting outby pillar blocks to 

less than eight feet along each stump face, and that Excel cut the blocks in entries 4, 5, and 6 in 

the 004 section of the mine to less than those minimums. In addition, it alleges that Excel had a 

practice of cutting pillar blocks too small, of which this incident was the latest manifestation, and 

which persisted despite a previous warning. It also alleges that this practice resulted in 

hazardous roof loading, evidenced by various signs of excess roof weight, including an 

unaddressed roof fall at entry 3. The citation alleges “high” negligence and characterizes the 

gravity as S&S and “highly likely” to result in a fatality for one person. 

Fact Summary 

MSHA Inspector Silas Adkins (“Inspector Adkins”)2

 traveled to Excel Mining’s No. 3 

mine on July 21, 2008, to continue a quarterly E01 inspection. When he arrived, he reviewed the 

pre-shift/on-shift examination book (Tr. 31:21-32:16), then began his inspection of Mine No. 3, 

section 004. Billy Stiltner (“Stiltner”), another MSHA inspector, helped Inspector Adkins 

conduct the inspection. They split up, each taking half the mine area. (Tr. 189:20-190:6) Brady 

Fouch (“Fouch”)3

, the mine’s day shift foreman, accompanied Inspector Adkins to inspect 

entries 4, 5, 6, 7, and 8 on the right side of the 004 section. (Tr. 34:13-35:14; 40:22-42:9; 151:2-

153:25; 185:8-15; 189:1-190:21; 249:9-14) Derick Adkins, section foreman on section 004, 

went to the other side with Stiltner. (Tr. 190:16-191:4; 247:16-248:1; 249:9-14) At the time, 

miners were retreat mining4

 in section 004. (Tr. 18:16-19:12) Section 004 comprised eight 

entries, creating seven coal blocks that were being removed. (Tr. 36:1-19; Exhibit G-2A) The 

citation at issue in this case alleges RCP violations in four of the eight entries - entries 3, 4, 5, 

and 6. (Exhibit G-1) 

2

 There are two men with the last name Adkins important to this case - MSHA Inspector 

Silas Adkins, and Derick Adkins, a section foreman for the Excel mine. 

3

 The section foremen reported to Fouch. (Tr. 222:24-224:1) Section foremen and all 

miners are expected to be familiar with the RCP and know what size stumps to leave in a 

pillaring section. (Tr. 224:14-25) 

4

 Retreat mining involves a process called “pillaring” in which the coal pillars that are left 

for roof support as mining advances are cut out as the miners and machinery “retreat” back out 

of the mine. In the process, the roof is allowed - and expected - to fall in as the retreat 

progresses, to reduce pressure on the roof in areas yet to be pillared. (Tr. 18:25-31:10; 201:25-

202:7) 

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Preparations for retreat mining are made during the advance mining phase in a process 

called “rooming off.” As retreat mining progresses, coal is cut from the pillars5 created during 

advance mining according to a very specific sequence and to dimensions set out in the RCP. The 

RCP also specifies how many and where breaker timbers are to be set after each cut. (Tr. 18:16-

23:23) 

Coal was being extracted by two continuous miner machines, one on each side of the 

section. (Tr. 18:25-22:21; Exhibit G-2A) The swath of coal extracted by a continuous mining 

machine is called a “lift” or “cut.” (Tr. 18:25-22:21) According to the RCP, after each lift 

during retreat mining, miners are required to set eight breaker timbers for roof support at the 

intersection of the entry and the cross cut.6 (Tr. 18:25-22:21;165:16-166:9) They are also 

required to leave blocks at the corners of the pillars, measuring at least eight feet on a side,7 to 

provide adequate roof support as retreat mining proceeds. (Tr. 25:1-6) The remaining blocks 

are the primary means of supporting the roof during pillaring. The breaker timbers provide some 

additional roof support. (Tr. 202:11-22) Ultimately, it is intended that the roof collapse along a 

line created by the breaker timbers and the remaining blocks.8 (Tr. 28:10-29:5) 

One of the purposes of Inspector Adkins’ inspection was to confirm that breaker timbers 

had been properly set and to determine whether the required amount of coal had been left in the 

pillar “stumps” to support the roof as retreat mining continued. (Tr. 42:6-10; 27:6-17) 

Entry 4 

When Inspector Adkins arrived at entry 4, breaker timbers had been set, preventing him 

from moving in any closer to inspect the remaining blocks. He checked from a safe distance to 

see if the required timbers had been set and to check the integrity of the roof in the area where 

5

 The terms “pillar,” “pillar block”, and “block” are interchangeable. The term “stump” 

is used sparingly in this decision for the reasons discussed below. 

6

 See Figure 1 below. The eight timbers are shown (partially) at the bottom of the figure 

as heavy dots, arranged in two rows of four. Timbers are usually made from soft wood which 

audibly cracks when they take weight, giving a warning - hence the term “breaker” timbers. 

(Tr.30:18-31:10) 

7

 There are times and conditions that call for more than eight foot pillar block dimensions 

at the mine’s discretion. For example, a bad bottom could make it hard to maneuver a 

continuous mining machine; more coal is left in the blocks and wider guidelines are drawn. (Tr. 

203:10-205:17) 

8

 Once the coal has been removed, the roof is supposed to fall in. When the roof falls, the 

timbers are supposed to break. (Tr. 201:7-20; 202:23-203:9; 268:21-269:9) It is better if the 

roof falls right away; it reduces pressure on the remaining roof. (Tr. 201:25-202:7) 

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they would be retreating into next. (Tr. 42:22-43:16) From his vantage point, he concluded that 

the blocks left at entry 4 were less than eight feet on a side. (Tr. 43:25-44:16) 

The RCP (Exhibit G-5, page 39) required that all blocks measure at least eight feet along 

each side. (Tr. 23:6-24:18; 225:6-22) The outby block corners appeared to Inspector Adkins to 

be significantly less that eight feet on a side. He could not confirm this to any greater degree of 

accuracy because he could not go inby the breaker line for safety reasons. (Tr. 42:13-14; 43:25-

44:16)9

 Stiltner made notes about what he observed at entry 4. (Exhibit G-7) They confirm 

that the block corners at entry 4 were less than eight feet. They also note that he could not see 

the outby corners of the pillars, and that the last timber was broken in the breaker row. Stiltner 

noted this because he considered it a serious situation, and he wanted to document that he was in 

personal danger as he inspected because of this situation. (Tr. 157:8 -158:6) 

Excel argued10 that there had been a roof fall at entries 4 and 5, and that it had destroyed 

the outby blocks at entries 4 and 5. Inspector Adkins did not recall with certainty if there was 

any evidence of such a roof fall, however even if there had been, the outby block corners were 

still sufficiently visible to assess their size and integrity. (Tr. 94:10-95:15) Inspector Adkins 

testified that he saw no evidence of sloughage on the blocks, as claimed by Excel’s witnesses. 

He observed clean cuts. (Tr. 62:25-64:15) In describing Exhibit G-2A, Inspector Adkins 

testified that the outby blocks on both sides of entry 4 were too small. He estimated that they 

were between one and four feet. (Tr. 43:23-44:16) 

Entry 5 

Inspector Adkins concluded that the outby blocks in entry 5 were undersized as well. 

(Tr. 44:20-25) He was approximately 25 feet away from the corner blocks in entry 5 when he 

observed them with the light from his cap lamp. (Tr. 44:20-45:19; 92:16-94:9; 274:14-18) It 

was obvious to him, even with these limitations, that they were less than eight feet on a side. 

(Tr. 53:10-54:1; 91:19-92:11) Inspector Adkins wrote the citation because he concluded that 

there was less than eight feet of supporting wall left on at least one side of the blocks in entries 4, 

5, and, 6. It did not matter to him whether it was one foot or four feet or more as long as it was 

less than the minimum of eight feet. (Tr. 107:20-109:2) 

As discussed below in greater detail, Excel argued, and its witnesses testified, that if a 

coal block is not cut on all four sides, it should not be considered a stump. (Tr. 234:15-237:15) 

In contrast, Fouch testified that there was also roof fall material in entry 5. From a 

distance of 20 - 30 feet (Tr. 219:11-14), he could see the side of the blocks closest to him, but the 

rest was obliterated. (Tr. 209:23-211:6) He recalled that the remaining blocks appeared to be at 

9

 No one is allowed to be inby the breaker line (Tr. 42:13-14). 

10 Respondent’s Post-Hearing Brief, page 4. 

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least eight feet on a side. (Tr. 211:11-23) He disagreed that the stumps in entries 4 and 5 were 

between one foot and four feet. (Tr. 220:4-16) Fouch testified that he had no way to even know 

about the over cutting in entries 4 and 5, since they had been cut the night before and the area 

had since fallen in. (Tr. 220:25-221:6; 255:7-18) He denied seeing any stress fractures, nor did 

he remember Inspector Adkins pointing them out. (Tr. 218:6-13) 

Fouch denied admitting to Inspector Adkins that he knew that the blocks in entries 4 and 

5 were being cut to less than eight feet. (Tr. 220:17-24) He denied that he apologized for the 

blocks being over cut. He did not believe that the blocks had been over cut, except for entry No. 

6. (Tr. 222:1-15) He did not recall another citation for undersized blocks issued in July 2008. 

(Tr. 222:16-20) 

Fouch agreed hypothetically that if the blocks at entries 4 and 5 were cut to less than 8 

feet, Derick Adkins, the section foreman, should have noted the fact on his imminent danger run 

and “dangered off” the section and moved away from the area. However, he disagreed with the 

assumptions underlying the hypothetical. (Tr. 238:8-241:14) Derick Adkins admitted that he 

might have told Silas Adkins that too much had been cut out, but he claimed that it was in 

reference to the entry with the bad bottom. (Tr. 283:5-13)

Figure 1 

Entry 6 

Inspector Adkins also found the stumps in the entry 6 inadequate. However, the “push 

out” cut had not yet been taken from the front face flanking the number 6 entry when he made his 

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observation and wrote the citation.11 The third cut in the number 6 entry12 could not leave the 

eight by eight foot stump required by the RCP. Inspector Adkins concluded that the third cut left 

only one foot along left side13 of the block from which the push out cut would have been taken. 

This would have left one side of the block, if it had been finished by taking the push out, 

measuring significantly less than eight feet. (Tr. 47:8-48:13; 87:11-16).14 

Stiltner also observed the conditions at entry 6. His notes confirm that the stumps in entry 

6 were less than eight feet. (Tr. 158:7-14; 161:2-14; 182:1-20) Stiltner chose not to put himself 

in jeopardy just so he could be more precise in his estimates. If a pillar looked less than eight feet 

from where he was, he did not go into danger to confirm it. He made his estimate based on the 

known spacing of roof bolts. (Tr. 160:1-161:2; 175:12-177:18) 

Fouch did not believe that Inspector Adkins could see any of the stump at entry 4, and 

only part of the stump at entry 5. The stump at entry 6 was the only one he could see. (Tr. 231:2-

10) After being shown his own notes however, Fouch conceded that some of the stump at entry 5 

was visible. (Tr. 231:11-21) 

According to Fouch, the bottom (floor) was bad at entry 6. No push out cut had been 

taken from entry 5 (Tr. 213:2-4), and the miner operator had already moved the continuous miner 

to entry No. 7. (Tr. 213:5-6) Inspector Adkins wanted to talk to miner operator, Mike Estep, 

(“Estep”) about what happened. Estep explained that he had not taken the last cut, and had 

moved the miner out of entry 6. The entry 6 area was breakered off and the miner moved to entry 

7. Once this was done, there was no way to come back in for the final cut. (Tr. 213:7-214:16) 

The continuous miner tore up the bottom at entry 6, which affected its ability to maneuver. 

Estep told Derick Adkins that he did not think he was going to be able to leave eight feet in the 

stump, so Derick Adkins told him to skip the push out cut to the left of entry 6. Estep backed the 

miner out, timbers were set, and the continuous miner was moved to entry 7. (Tr. 264:15-266:20) 

Derick Adkins testified that he did not feel any pressure about having to sacrifice coal production. 

(Tr. 263:7-20); 266:21-267:5) 

From what Fouch saw, it was clear that the miner operator had finished with entry 5 and 

11 The “push out” cut is the final cut made in the outby surface of a coal pillar before 

setting the breaker timbers for that entry and moving the mining machine to the next pillaring 

area. (Tr. 45:23-46:18) 

12 The sequence of cuts during the pillaring process is set out in the RCP in Exhibit G-5, 

page 39 (Tr. 23:6-24:18), (Figure 1). The third cut is shown with an arrow; the “push out” that 

was not taken is shown by a rectangle. 

13 When the terms “left” or “right” are used, it is assumed that the observer is facing inby. 

14 This would, of course, also be at least a technical violation of the relevant standard. 

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had moved to entry 7. There was no intent to take any more cuts out of this area because it had 

been breakered off, and the miner had already started cutting coal in entry 7. (Tr. 214:15-24) 

This is consistent with Fouch’s opinion that if a miner takes too much off a stump, the foreman 

should make the decision to back out and move to the next block, abandoning the last cuts. To do 

otherwise would not be safe. (Tr. 206:14-207:7) It that case, where a cut was abandoned, there 

could still be a sizeable block of coal - not just a pillar - left to support the roof. (Tr. 207:8-18) 

Nonetheless, Fouch conceded that the miner operator had cut outside the paint lines at 

entry 615 (Tr. 232:17-233:6) and that there was only one foot of the block wall left on the outby 

left corner. (Tr. 233:7-234:1) He contended that because they did not take the last cut at entry 6, 

there was, in reality, no stump at all. What resulted, in his view, was an unmined pillar wall with 

one side only one foot wide. (Tr. 233:21-234:7) This is consistent with Fouch’s view that a 

stump is an area where there cuts have been taken on all four sides. If that is the case, he agreed 

that each side must be eight feet or more. If that is not the case, what remains is a block of coal 

that has not been completely cut - not a stump. Therefore, the eight foot requirement does not 

apply. 

Fouch finally agreed that there was at least a technical violation of the RCP because of the 

one foot section of the wall or stump, regardless of what it is called. (Tr. 234:15-237:15) He also 

agreed that if the miners were intentionally cutting the stumps to less than eight feet, it would be a 

serious violation of the RCP. (Tr. 237:16-238:7) 

Entry 3 

When Stiltner returned from inspecting his portion of section 004, he conferred with 

Inspector Adkins and told him that the blocks in entry 3 had been over cut just like those in 

entries 4, 5, and 6. However, in entry 3, the roof had fallen in, knocked down the breaker timbers 

(Tr. 50:6-11;170:9-172:24 ), and pushed material past the breaker line out to where men were 

hauling coal. (Tr. 48:20-49:17; 51:11-25; 154:20-156:4;163:8-164:11)16 

Inspector Adkins went to entry 3 to confirm what Stiltner had told him. He found that 

there had been a roof fall and that no timbers had been set after the fall. According to the RCP, 

the mine was required to set timbers in such a situation to protect the miners from a bad roof. (Tr. 

50:19-51:8) Inspector Adkins considered the roof collapse at entry 3 to be a separate violation of 

mandatory standard 30 CFR §75.220 (Tr. 119:6-10), and incorporated it into Citation No. 

8216265. (Tr. 66:2-67:10) He also testified that, in his mind, there was a connection between the 

over cutting of the blocks he observed during this inspection (and on a previous occasion) and a 

roof fall such as that in entry 3. He testified that when a mine removes more coal than allowed in 

15 Paint marks were not required by the RCP at that time. Company policy required them, 

however. (Tr. 260:19-261:8) 

16 Fouch testified that it was entry 4 that had fallen in and not entry 3. Entry 3 was the 

travel way. (Tr. 208:10-209:21) 

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the approved RCP, roof falls - although anticipated and necessary during retreat mining - will 

involve more material than planned for and will ride out farther than anticipated. (Tr. 51:13-

52:23)17 

Inspector Adkins, Fouch, Stiltner, and Derick Adkins met back up at entry 3. Inspector 

Adkins asked Derick Adkins how entry 3 looked. He mentioned only that they had some “top” in 

entry 3. 

According to Fouch, the roof had fallen in at entry 3 and “rode out” some breaker timbers, 

making it impossible to go back in the area to remove any more pillars. (Tr. 216:9-21; 228:25-

230:7) Because of the roof fall at entry 3, Derick Adkins decided to set up timbers to “breaker” it 

off. They gave up the remaining cuts and moved the continuous mining machine on to entry 2. 

(Tr. 215:11-217:4; 249:19-250:4; 254:2-22) 

Derick Adkins contradicted the MSHA inspectors’ version of how bad the roof fall was at 

entry 3. According to his version, the breaker timbers were rode out but not to the extent recalled 

by Inspectors Adkins and Stiltner. His recollection was that the breaker timbers had been set 

flush with the block corners by the third shift the day before, and the corners were still intact. 

(Tr. 269:15-270:17) However, Derick Adkins also testified that the roof fall at entry 3 had 

obliterated the timbers so that hardly any of them could be seen. (Tr. 250:13-251:5) He recalled 

that the breaker timbers inby the breaker line at entry 3 were rode out, and that the roof had 

shifted. (Tr. 278:8-19) He was also “pretty sure” the breaker timbers in the other line (outby) at 

entry 3 had not been rode out. (Tr. 278:20-279:2) Finally, Derick Adkins denied that the roof fall 

at entry 3 was as extensive as reported by Inspector Adkins because he would have heard about it 

and did not. (Tr. 257:15-258:2) He testified that he would have remembered seeing the roof fall 

at entry 3 if it had pushed out the timbers to the extent testified to by Inspector Adkins because 

his crew had just set them that morning. (Tr. 270:18-25) 

Fouch also challenged Inspectors Adkins’ recollection of the extent of the roof fall at 

entry 3. He did not accept that the roof fall at entry 3 could have taken out a second line of 

breaker timbers, as claimed by Inspector Adkins. (Figure 2) If it had, it would have been “pretty 

significant,” and he would have a clearer recollection of it. (Tr. 217:10-25) Fouch made notes 

about the inspection and his recollection of what he saw. (Exhibit G-6) Curiously, the notes 

document a roof fall at entry 3 and 5, but not at entry 4. (Tr. 231:22-232:5) 

Fouch and Derick Adkins testified that the roof fall at entry 3 had only gone to the line 

represented by the cross cut shown near the center of Figure 2, but according to Inspector Adkins, 

they were off by a line of timbers. Inspector Adkins testified that the roof fall material at entry 3 

had come out to the ”X” on Figure 2. (Tr. 292:12-293:6 and Exhibit R-1) He recalled that the 

roof falls at entry 4 and 5 did not come out as far as the one at entry 3. The blocks in that area 

17 Information about what Inspector Adkins was thinking during his inspection is not 

included as a finding of fact, but merely to illustrate his thought process and to inform the 

assessment of his overall credibility as a witness. 

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were also very visible to Inspector Adkins (Tr. 293:7-20), leaving no doubt about the size of the 

blocks he observed. (Tr. 293:21-24) 

Roof Weight 

Figure 2 

Inspector Adkins observed evidence that indicated to him that the roof was “taking 

weight.” Wooden cap wedges used to secure and drive timbers into place were crushed, and the 

timbers themselves were pushed into the floor. Some timbers were split from the roof load. He 

also noted stress fractures in the rock ribs and ceiling running perpendicular to the breaker 

timbers in entries 4, 5, and 6. (Tr. 56:7-57:18) Inspector Adkins testified that these are 

indications of extreme weight loads. (Tr. 54:3-24; 56:13-25)18 Derick Adkins agreed that these 

weight indicators were present. (Tr. 278:18-288:1) He also testified that his men had detected a 

crack in a test hole in the ceiling at entry 3 when they ran their test tape up in it. To him, this is an 

indication that the roof had shifted and was potentially unsafe. (Tr. 250:25-253:24) 

Mining Machine Was Too Big 

Inspector Adkins testified (and his inspection notes confirm) that Fouch told him that he 

expected the citation because he saw that the blocks did not meet the eight foot minimums. (Tr. 

58:16-59:3 and Exhibit G-2, pages 4 and 5) Fouch denied that he told Inspector Adkins that he 

knew that the blocks in entries No. 4 and 5 were being cut to less than 8 feet. (Tr. 220:17-24) 

18 It is significant that some of the timbers were broken because it is an indication of 

extreme weight. Timbers not only support the roof, but they also serve as a warning indicator. 

The sound of “breaker” timbers cracking is an audible warning signal and seeing the cracks is a 

visual warning to miners that the roof is taking too much weight. (Tr. 55:18-56:3: 129:13-130:4; 

200:18-201:6). 

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According to Inspector Adkins’ inspection notes and his testimony, Fouch talked with the right 

side continuous miner operator, Mike Estep, about the over cut blocks. (Tr. 213:7-214:16) Estep 

admitted that the blocks were not the right size and justified the over cutting because the 

continuous miner was too big to make a sharp enough turn to leave the eight foot minimums and 

still swing in to make cuts. (Tr. 59:5-60:19) 

According to Inspector Adkins, Derick Adkins also admitted that the blocks had been cut 

to less than the minimums because the continuous miner was too big. Derick Adkins’ statements 

are documented in the inspector’s notes. (Tr. 60:23-61:16 and Exhibit G-2, page 5) However, in 

his testimony, Derick Adkins denied telling Inspector Adkins that he knew the blocks had been 

cut too small. He allowed that if he did, he was probably referring to entry 6 where the bottom 

was broken up, and the miner operator admitted making a mistake. (Tr. 273:3-11) Derick Adkins 

also denied - albeit not categorically - that he ever told Inspector Adkins that the blocks had been 

cut too small in entries 4 and 5. (Tr. 273:15-20) 

Excel painted guide marks on the ribs and roof to give the men a reference for the eight 

foot block requirement. (Tr. 63:6-22; 64:23-65:13; 203:10-25) Inspector Adkins noted that the 

cut marks made by the continuous miner’s carbide bits were “significant[ly]” outby the paint 

marks remaining on the roof . In addition, the four-by-four foot roof bolt pattern gave him an 

indication of where the continuous miner started cutting the stumps. (Tr. 63:23-64:21; 87:2-10) 

S & S and Unwarrantable Failure 

Inspector Adkins considered Citation No. 8216265 to be S&S and an unwarrantable 

failure because, if a proper pre-shift or on-shift examination had been conducted, the violations 

would have been spotted and abated. (Tr. 96:24-98:19) In addition, Inspector Adkins had issued 

a citation for the same sort of violation just 11 days earlier. (Tr. 131:2-132:6 and Exhibit G-3)19 

After he issued the earlier citation, he conducted a safety meeting with mine personnel and put 

them on notice that he would take enhanced enforcement action if he found similar conditions in 

the future. (Tr. 67:15-69:12; 117:24-118:18; 119:14-120:2)20 

Inspector Adkins considers over cutting blocks a very serious hazard. (Tr. 84:19-85:4) 

Over cutting can expose miners to roof falls because it can shift roof weight onto the section 

where the miners are working. (Tr. 72:14-24; 121:18-122:6) Inspector Adkins testified that the 

over cutting (and any steps the operator took to remedy the situation) should have been recorded 

19 Citation No. 6658217 was issued on July 10, 2008. It alleges that the operator was 

removing too much coal by leaving less than eight foot minimums in four entries at section 001. 

The operator was allegedly cutting the blocks down to four to five feet. (Tr. 68:12-70:7) 

20 Exhibit G-4 contains field notes relating to Citation No. 6658217, issued on July 10, 

2008. There is a notation that documents that Inspector Adkins put mine officials on notice that 

another incident of cutting the blocks to less than eight feet would result in enhanced 

enforcement action. (Tr. 70:21-71:18) 

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in the examination book. (Tr. 76:16-17; 128:5-22) Details of the roof fall in entry 3 should have 

been recorded in the examination book as well. (Tr. 76:20-24) 21 Lastly, the conditions were 

“very” obvious in Inspector Adkins’ opinion. (Tr. 73:1-17) 

With so many blocks being cut beyond the minimums, with the stress fractures, the broken 

timbers, and the roof fall in entry number 3, it seemed to Inspector Adkins that a fall was a 

certainty - it was just a matter of time. The miners whose job it was to place timbers after the 

continuous miner pulled out were being exposed to unnecessary danger because of the over 

cutting and the resulting hazards. Shuttle car operators were also exposed to unnecessary danger 

because they traveled by these entries while hauling coal. For these reasons, Inspector Adkins 

characterized the violation as “highly likely” that an accident would occur. (Tr. 78:1-79:17; 

99:13-101:4; 122:7-123:5) However, he did not deem this to constitute an imminent danger. (Tr. 

102:13-15) 

Mitigating and Aggravating Circumstances 

Inspector Adkins considered the possibility that moving the continuous miner back a row 

could be considered a mitigating circumstance, despite the fact that the continuous miner operator 

(Estep) said nothing about moving the miner because of over cutting. The discussion dealt only 

with the condition of the bottom and the fact that he could not maneuver the miner. (Tr. 110:25-

111:13) Nonetheless, even though the continuous miner was moved because the bottom was bad 

and not because of compromised roof support, Inspector Adkins treated it as a mitigating 

circumstance (Tr. 109:19-110:14; 145:6-23) 

Inspector Adkins considered the following to be aggravating circumstances (Tr. 134:13-

135:9): He conducted a safety meeting with mine management both after the earlier citation and 

after this one. This was the second such meeting for the same type violation in 11 days. In the 

more recent meeting, he covered the same topics as before and reminded mine personnel that this 

was a repeat violation. He also talked to Derick Adkins and Fouch to confirm that they had 

conducted safety meetings in the interim. Not only had there been a repeat violation in 11 days, it 

happened despite similar safety issues being discussed in mine safety meetings. Inspector Adkins 

testified that despite considering this an aggravating circumstance, he nonetheless considered the 

interim safety meetings a mitigating factor. (Tr. 131:2-132:6) 

Inspector Adkins was convinced that mine management was aware that blocks were being 

over cut. The fact that Derick Adkins told the miners to move from entry 6 to entry 7 indicated to 

Inspector Adkins that Derick Adkins was on site and should have witnessed the violation. Derek 

21 Inspector Adkins reviewed the examination books on the day of the citation. He 

reviewed the books before he went into the mine. He chose not to cite the Respondent for 

inadequate examination. He testified that it was an error not to cite the Respondent for 

inadequate examination. (Tr. 130:12-131:1; 140:10-17) 

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Adkins’ shift started in entry 6, but entries 4 and 5 were cut prior to his shift. To Inspector 

Adkins, this means the cited conditions in entries 4 and 5 were present when Derick Adkins 

conducted his on-shift examination. (Tr. 74:20-75:4; 138:15-139:6) 

Analysis 

There is no dispute that the approved RCP requires eight feet of unmined coal on “the 

outby and inby corners” of each block. (Exhibit G-5, page 39, Note 12.) What is disputed is: 

whether Inspector Adkins’ assessment of the size of the stumps at entries 4, 5, and 6 was 

accurate; whether the roof fall at entry 3 was properly pled and extensive enough to be a distinct 

violation of the standard; whether the alleged violations involve “high” negligence; whether the 

inspector’s assessment of gravity is justified; whether there was an unwarrantable failure to 

comply with 30 C.F.R. § 75.220; and what penalty, if any, is appropriate. 

Assessment of Block Size 

Entry 6 

Terminology is very important to the resolution of this dispute. Throughout the 

testimony, the parties used the vernacular term “stump,” a term which is not defined, nor to the 

Court’s knowledge, even used in the RCP. The plan uses the word “block” instead. This is 

particularly significant with respect to the allegations regarding entry 6. 

Use of the term “stump” conjures an image of a free-standing, rectangular column of coal. 

The RCP wisely uses the term “block” instead to describe the unmined coal left for roof support, 

regardless of its shape or size, and regardless of what stage of the process it pertains to. 

Otherwise, as is apparent in this case, the result can be unnecessary confusion and possible danger 

to miners resulting from disputes over terminology. 

Excel argues that it did not violate 30 C.F.R. § 75.220 at entry 6 because it did not take the 

push out cut, and as a result, no stump was created. (See Figure 2, supra.) Therefore, it argues, 

the dimensions of the corner surfaces is irrelevant. This argument fails when assessed in light of 

the actual wording of the RCP. During the advance mining phase, headings and crosscuts created 

the blocks that this citation relates to. When Excel attempted to retreat mine the block at entry 6, 

it reduced its size to the point where one of the surfaces at the outby corner of entry 6 was less 

than eight feet. The RCP requires that any block of coal left during the mining process measure 

at least eight feet on a side, regardless of whether it is during advance or retreat mining, and 

regardless of whether all four sides of the block are reduced during retreat mining. 

In this instance, there is convincing evidence that the inby block surface on the left side at 

entry 6 was less than eight feet. The evidence also makes it clear that the violation occurred when 

Excel’s miners attempted to take the third lift in entry 6. In an apparent attempt to mitigate the 

situation, Excel did not take the push out cut, they set breaker timbers to barricade off entry 6, and 

they moved the miner to entry 7. As a result, the RCP was violated despite the fact that no 

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“stump” was created in the process. It avails nothing that, due to the fact that the push out cut 

was not taken, the other block surface was considerably more than eight feet. The standard does 

not allow for the excess size of one block wall to somehow compensate for the deficiency of 

another block wall. I find that the block wall forming the inby surface of the corner at entry 6 

was less than eight feet, and I conclude that this violates the RCP and 30 C.F.R. § 75.220. 

Entry 4 and 5 

Although Excel’s witnesses denied that they made any admission to Inspector Adkins that 

the pillar blocks in entries 4 and 5 had been over cut, the weight of evidence supports a finding 

that the blocks in those entries had been cut to less than the required minimums. Inspector 

Adkins documented in his inspection notes (Exhibit G-2, page 4) that Fouch had admitted that the 

pillar blocks at entries 4, 5, and 6 had been over cut. Fouch denied making such an admission. 

However, both MSHA inspectors documented the existence of over cut blocks at entries 4, 5, and 

6 in their inspection notes, Exhibits G-2 and G-7, respectively. Their written records are very 

similar and tend to undercut the less-than-consistent testimony of Excel’s witnesses. Excel’s 

witnesses offered differing and less convincing explanations, e.g., sloughage due to the roof fall 

in entries 4 and 5; inevitable over cutting due to bad bottom conditions; and unavoidable over 

cutting due to the size of the continuous miner. 

I find that the pillar blocks in entries 4 and 5 were cut to less than eight feet on a side and 

conclude that this makes out an independent violation of 30 C.F.R. § 75.220. 

Roof Fall at Entry 3 

There is conflicting evidence in the record whether there was a significant roof fall in 

entry 3 that forced material through the array of breaker timbers that had been set on the outby 

side of the intersection of entry 3 with the crosscut creating all the entries relevant to this case.22 

Excel’s witnesses questioned whether a roof fall had occurred at entry 3 at all, suggesting instead 

that Inspector Adkins had conflated it with the admitted roof falls in entries 4 and 5. The 

evidence from inspectors Adkins and Stiltner is more convincing, however. (Tr. 49:10-50:8; 

66:19-24; and Exhibits G-1 and G-2) Inspector Adkins noted, and I find, that the roof fall in entry 

3 pushed over the timbers that had been placed in entry 3 before the fall, and that after the fall, no 

replacement timbers had been placed to reestablish the breaker line. 

Inspector Adkins considered this an independent violation of the RCP and 30 C.F.R. § 

75.220. (Tr. 50:19-51:8) However, when questioned about which provision in the RCP was 

violated by this roof fall, he gave no specifics. Further, there is nothing in the Secretary’s 

pleadings to indicate which provision of the RCP was violated by the roof fall in entry 3. The 

Respondent also failed to challenge the sufficiency of the allegation of a roof fall in entry 3 as a 

separate violation. As a result, although the Secretary and Respondent treated the alleged roof 

fall as a distinct violation of the RCP, and although there is convincing evidence that the roof fall 

22 See Exhibit G-2A. Explanatory testimony is found at Tr. 48:14-50:8. 

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occurred, pushed over a group of breaker timbers, and that no replacement timbers were put in 

place, I conclude that the entry 3 roof fall is not a distinct violation of the RCP. I decline to infer 

corrections in the pleadings that could have made it facially clear that MSHA considered the roof 

fall to be a separate violation of the RCP. I also decline to conclude that by failing to challenge 

the sufficiency of the Secretary’s pleadings, the Respondent waived its right to contest whether 

the entry 3 roof fall was a violation of the RCP. This has no bearing on the violation arising from 

over cutting the blocks at the other entries.23 

I do, however, rely on the evidence of the roof fall in entry 3 in the following assessment 

of the elements of negligence, gravity, S&S, and unwarrantable failure relating to the violation of 

the RCP arising from over cutting the blocks at entries 4, 5, and 6. 

Negligence 

Section 110(i) of the Mine Act requires that in assessing penalties the Commission must 

consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(I). Each 

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

standard. An operator's failure to satisfy the appropriate duty can lead to a finding of negligence, 

if a violation of a standard occurs. In this type of case, we look to such considerations as the 

foreseeability of the miner's conduct, the risks involved, and the operator's supervising, training, 

and disciplining of its employees to prevent violations of the standard in issue. Southern Ohio 

Coal Co., 4 FMSHRC at 1463-64. See also Nacco Mining Co., 3 FMSHRC at 848, 850-51 (April 

1981) (construing the analogous penalty provision in 1969 Coal Act where a foreman committed 

a violation), cited in A. H. Smith Stone Company, 5 FMSHRC 13, (January1983). 

Negligence “is conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 

100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

23 I am aware that, under appropriate circumstances, FRCP 15(b)(2) (by way of 29 C.F.R. 

§ 2700.1) allows amendment of a citation post-hearing to conform to the evidence presented 

during the hearing. Cumberland Coal Resources, LP, 32 FMSHRC 442, 447 (May 2010); 

Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990). I am also aware that the judge may do 

so sua sponte, as the interests of justice require. Compare Consolidation Coal Co., 20 FMSHRC 

227, 235-37 (Mar. 1998) (the Secretary could not amend a citation post-hearing to state a new 

theory of violation because it was not clear from the record that the operator understood, or 

should have understood, that a new theory was being litigated) with Faith Coal Co., 19 

FMSHRC 1357, 1362 (Aug. 1997) (a citation could 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 the 

absence of a motion by either party, or a compelling, substantive reason to craft an ex post facto 

amendment of the citation in this case, I decline to do so. 

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conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct 

which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he 

operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have 

known of the violative condition or practice, but there are mitigating circumstances.” Id. Low 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he 

operator exercised diligence and could not have known of the violative condition or practice.” Id. 

Citation 8216265 (Exhibit G-1) alleges “high” negligence. Table X of 30 C.F.R. §100.3 

links an allegation of high negligence with the absence of mitigating circumstances. From the 

evidence summarized above, I conclude that Excel should have known that the pillar blocks in 

entries 4, 5, and 6 were cut beyond limits set by the RCP. There is no credible question that the 

blocks in those entries were less than eight feet on at least one side. Although Excel’s witnesses 

attempted to cast doubt on Inspector Adkins perception and accuracy, I am convinced that he was 

able to make a reasonably accurate assessment of the block dimensions. 

As stated above, Inspector Adkins considered the moving of the continuous miner out of 

the compromised area and foregoing the remaining lifts a mitigating circumstance. He also 

testified that he viewed the safety meetings in the interim between the two citations for over 

cutting pillar blocks as evidence of mitigation as well. I am not bound by his perhaps overly 

generous view of these factors. Nonetheless, I find and conclude that leaving the affected area 

and giving up the remaining cuts mitigates the negligence element down from “high” to 

“moderate,” in keeping with the guidance in Table X. I do not consider holding safety meetings 

in response to the first violation anything more than a minimum response to the violation. The 

fact that the violative conduct was repeated in less than two weeks time speaks loudly against any 

consideration of this as an act of mitigation. 

Gravity 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is 

most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 

FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 673, 681 (April 1987). The seriousness of a violation can be examined by 

looking at the importance of the standard which was violated and the operator's conduct with 

respect to that standard, in the context of the Mine Act's purpose of limiting violations and 

protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 

140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be made 

assuming continued normal mining operations without abatement of the violation. Consolidation 

Coal Co., 8 FMSHRC 890, 899 (June 1986). 

However, the gravity of a violation and its S&S nature are not the same. The Commission 

has pointed out that the “focus of the seriousness of the violation is not necessarily on the 

reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the 

effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 

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34 FMSHRC Page 115

1996). The gravity analysis can include the likelihood of an injury, but should focus more on the 

potential severity of an injury, and the number of miners potentially injured. The analysis should 

not equate gravity, which is an element that must be assessed in every citation or order, with 

“significant and substantial,” which is only relevant in the context of enhanced enforcement under 

Section 104(d). See Quinland Coals Inc., 9 FMSHRC, 1614, 1622, n.1 (September 1987). 

Citation 8216265 (Exhibit G-1) alleges a high likelihood of a fatal injury to at least one 

miner as a result of this violation. I concur. Over cutting the pillar blocks was not an isolated, 

one-off incident. Excel was cited twice for the same violation in less than two weeks. Multiple 

entries were compromised. Although there is evidence that the condition of the bottom might 

have played a role in at least one of the entries, the evidence of widespread and repeated over 

cutting is much more compelling. For these reasons, I conclude that there was a reasonable 

likelihood of a fatal injury to at least one miner, as alleged. 

Significant and Substantial and Unwarrantable Failure 

It is clear in the Mine Act that since negligence and gravity, which are clearly delineated 

in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced 

enforcement provisions set out in Section 104(d) contemplate something distinct and “more,” 

when talking about significant and substantial and unwarrantable failure. The Secretary must 

prove negligence and gravity for all citations and orders and, in order to invoke the enhanced 

enforcement plan in Section 104(d), must also prove that the circumstances of the violation 

satisfy both the S&S and unwarrantable failure standards. If the Secretary fails to prove both, 

there can be no enhanced enforcement. Thus, the Secretary has to prove four distinct elements24 

when the enhancement scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) 

“significant and substantial;” and (4) “unwarrantable failure.” 

Significant and Substantial 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health 

Review Commission (“Commission”) 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. 

Id. at 3-4. 

24 The Secretary must also prove the existence of the underlying strict liability violation 

of a health or safety standard. 

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In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held: 

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.” [ . . .] We have emphasized 

that, in accordance with the language of section 104(d)(1), it is the contribution of 

a violation to the cause and effect of a hazard that must be significant and 

substantial.” 

Id. at 1129 (internal citations omitted) (emphasis in original). 

The question of whether a particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 

1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced 

enforcement is applicable only to violations of mandatory standards. Cyprus Emerald Res. Corp. 

v. FMSHRC. 195F.3d42 (D.C. Cir. 1999) 

The evidence of potentially catastrophic roof loading and multiple roof falls beyond the 

limits set by the breaker lines is important here. It has convincing weight on the issue of potential 

severity of an injury and supports a finding that a serious injury is at least a reasonable likelihood. 

In this case there is evidence to support a finding of more than a reasonable likelihood of a 

significant injury. 

I cannot conclude that Excel’s practice of over cutting pillar blocks caused the signs of 

increased roof loading summarized above, however I am convinced that, as a minimum, Excel 

over cut the blocks in an environment of heightened hazard evidenced by stress fractures, crushed 

top wedges, and visibly cracked breaker timbers. This is evidence of increased likelihood of 

injury, which is consistent with the authority cited above. I also conclude that practices that 

compromise the integrity of the mine roof or are permitted to exist in an area of compromised 

roof integrity are per se of a “reasonably serious nature.” The Secretary has proved the S&S 

nature of this violation. 

Unwarrantable Failure 

The term “unwarrantable failure” comes from section 104(d) of the Act and, taken 

together with “significant and substantial,” creates a standard for enhanced enforcement 

procedures, including withdrawal orders and potential enhanced liability, if a pattern of violations 

is eventually proved. 

In Emery Mining Corp., 8 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal Inc. v. 

FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). 

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The Commission has examined various factors in determining whether a violation is 

unwarrantable, including the extent of a violative condition, the length of time that it has existed, 

whether the violation is obvious, or 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 efforts in 

abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 

705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); BethEnergy 

Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC 

1125, 1129 (July 1992). The Commission has also examined the operator's knowledge of the 

existence of the dangerous condition. e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 

1608 (Aug.1994) (affirming unwarrantable failure determination where operator aware of brake 

malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of 

hazard and failure to take adequate precautionary measures support unwarrantable 

determination); see also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 

One factor not addressed by the authority cited above is how easy it would be for an 

operator to avoid the violating practice. There is evidence that the continuous miner used in this 

situation was too big for the conditions or perhaps not operated with the requisite skill level to 

avoid over cutting the pillar blocks. Either possibility is fully within the knowledge and control 

of the operator and is of little value as evidence of mitigation, as suggested by Excel. The fact 

that the final lifts were not taken and the equipment was moved to the next mining area does tend 

to weigh against a finding of unwarrantable failure. However, the evidence of aggravating 

circumstances preponderates. 

Pillar blocks were over cut in three entries; the practice was extensive. The over cutting 

occurred twice in a short time period, resulting in two citations for the same violation. Inspector 

Adkins conducted a safety meeting with miners after the first violation to point out the 

importance of complying with the RCP and to put mine management on notice that further such 

violations would lead to enhanced enforcement. In addition, mine management conducted 

additional safety meetings in the interim between the violations during which it is presumed that 

some emphasis was put on the importance of complying with the RCP and the dangers of over 

cutting. Despite this, the second violation happened. The violation was obvious enough for 

anyone within 30 feet to see with a cap lamp. The violation was significant enough to be 

specifically included in the RCP. I conclude that Excel’s actions constitute a serious lack of 

reasonable care and were properly characterized as an unwarrantable failure to comply with a 

mandatory safety regulation. 

Penalty 

Applying the penalty regulations found at 30 C.F.R. § 100.3 and related tables, I conclude 

that an appropriate penalty for this violation is $6,997.00. 

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ORDER 

It is ORDERED that Citation No. No. 8216265 be MODIFIED to reduce the negligence 

assessment from “high” to “moderate.” 

It is further ORDERED that Excel pay a penalty of $6,997.00 within 30 days of this 

order. Upon receipt of payment, this case will be DISMISSED. 

/s/ L. Zane Gill 

L. Zane Gill 

Administrative Law Judge 

Distribution: (CERTIFIED) 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

Matt Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

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FEDERAL MINE SAFETY AND HEALTH 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 

January 5, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2010-160 

Petitioner : A.C. No. 11-03054-201612-1 

: 

v. : 

: 

BIG RIDGE, INC., : Mine Name: Willow Lake Portal 

Respondent : 

DECISION 

Appearances: Tyler McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, on behalf of the Secretary of Labor; 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Big 

Ridge Incorporated. 

Before: Judge Zielinski 

This case is before me on a Petition for Assessment of Penalty filed by the Secretary of 

Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). The petition alleges that Big Ridge Incorporated is liable for five violations of the 

Secretary’s Mandatory Safety Standards for Underground Coal Mines,1

 and proposes the 

imposition of civil penalties in the total amount of $28,506.00. A hearing was held in 

Evansville, Indiana, and the parties filed briefs after receipt of the transcript. The parties settled 

one of the violations prior to the hearing. Remaining at issue are four violations for which the 

Secretary has proposed penalties in the amount of $24,506.00. For the reasons that follow, I find 

that Big Ridge committed the violations and impose civil penalties in the total amount of 

$14,000.00, for the contested violations. 

Findings of Fact - Conclusions of Law 

At all times relevant to these proceedings, Big Ridge operated the Willow Lake Portal 

Mine (“WLPM”), a large underground coal mine located in Saline County, Illinois. The mine 

operated five super units using the room and pillar mining process. It had miles of belts, and 

travel to the furthest units could take 45 to 60 minutes. WLPM was a “gassy” mine, liberating 

over one million cubic feet of methane in a 24-hour period, and was subject to five-day spot 

inspections under the Act. WLPM operated three shifts, a day shift starting around 6:30 a.m., an 

1 30 C.F.R. Part 75. 

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afternoon shift starting at approximately 3:30 p.m., and a midnight, maintenance, shift starting at 

approximately 11:00 p.m. 

In September 2009, Daniel Ramsey, an MSHA ventilation specialist at the time, 

conducted a six-month review of WLPM’s ventilation plan. The review entailed inspecting the 

mine, checking air readings, determining whether the approved ventilation plan was appropriate 

for the mining conditions, and ensuring that it was being complied with. Ramsey had over 30 

years of mining experience before joining MSHA in 2003, and had inspected the WLPM 

numerous times. Ramsey found that Big Ridge was not complying with its approved ventilation 

plan and issued one of the orders at issue in this case. 

Another MSHA inspector, Larry Morris, was involved in completing a regular quarterly 

inspection of the mine, and issued the three remaining violations. Morris is also a highly 

experienced inspector, having worked in the coal industry for some 30 years, before joining 

MSHA in 2006. He also had inspected the WLPM numerous times. 

The respective violations are discussed below. 

Order No. 8418235 

Order No. 8418235 was issued by Ramsey at 9:00 a.m., on September 11, 2009, pursuant 

to section 104(d)(2) of the Act.2 It alleges a violation of 30 C.F.R. § 75.370(a)(1), which 

requires that mine operators develop and follow a ventilation plan approved by the MSHA 

District Manager. The violation was described in the “Condition and Practice” section of the 

Order as follows: 

The approved ventilation plan was not being followed on Unit-3, 

MMU 013. A check curtain has been installed in the last open 

crosscut between #7 and #8 entries at the 106+98 footage mark, 

short-circuiting the ventilation through the first crosscut outby at 

the 106+20 footage mark between #7 and #8 entries. Only 7,371 

cfm could be measured in the last open crosscut. The curtain was 

intentionally installed in this location and the section foremen were 

measuring the return air in the outby crosscut, 106+20. 

A check curtain installed in the last open crosscut is not in the 

approved ventilation plan, also the approved ventilation plan 

2 The parties stipulated that the underlying section 104(d)(1) order was issued on 

November 29, 2007, is still in contest, and that, between November 29, 2007 and September 17, 

2009, an additional 34 orders were issued pursuant to section 104(d) of the Act, 24 of which 

remain in contest. Jt. Ex. 1, para. 12. 

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requires the return air reading to be measured in the last open 

crosscut in line with the stopping line. 

Ex. G-1. 

Ramsey determined that it was unlikely that the violation would result in an injury, that 

any injury would result in lost work days or restricted duty, that the violation was not significant 

and substantial (“S&S”), that eight persons were affected, that the operator’s negligence was 

high, and that the violation was the result of the operator’s unwarrantable failure to comply with 

the mandatory standard. A civil penalty in the amount of $4,099.00 was assessed for this 

violation. 

Big Ridge contends that there was no violation, and challenges the negligence and 

unwarrantable failure findings, as well as the amount of the proposed penalty. 

The Violation 

Unit 3 of Big Ridge’s WLPM consisted of a “super-section,” i.e., two mechanized mining 

units (“MMUs”) operating on separate splits of air. MMU 013 was on the left side and MMU 

003 was on the right. Eight entries were being mined, numbered from right-to-left facing inby. 

Ventilation air in the 013 MMU was coursed inby in the intake entries, entries #4 and #5, 

traveled across the faces and out the #8 return entry. Big Ridge’s approved ventilation plan 

specified that a “minimum of 20,000 cfm [cubic feet per minute] will be maintained in the last 

open cross-cut with two or three open cross-cuts.”3 Tr. 80-81; Ex. G-3 at 2. Diagrams of 

“typical face ventilation” schemes were included in the plan. An asterisk on the diagrams 

showed the location where the required air reading was to be taken, which was in the most inby 

cross-cut in the line of stoppings separating the return air course from the intake and neutral air 

courses. For the 013 MMU, the location was in the most inby crosscut between entries #7 and 

#8. Tr. 80-82; Ex. G-3 at 5, 6. The diagrams were consistent with the definition of “last open 

crosscut” in the Secretary’s regulations, which state: “The last open crosscut is the crosscut in 

the line of pillars containing the permanent stoppings that separate the intake air courses and the 

return air courses.” 30 C.F.R. § 75.360(c)(1). 

The layout of MMU 013 as of September 11, 2009, is depicted on a map of the section. 

Ex. G-4. At that time, mining was advancing only on entries #1 through #6. On September 9, 

2009, the 013 MMU had holed into old works that had been mined in January of 2009, and the 

extensions of entries #7 and #8 had been mined months earlier to a point six crosscuts inby.4 

At the time of the inspection on September 11, entries #4 through #6 had been advanced an 

3

 The reference to “two or three open crosscuts” expresses a requirement that permanent 

stoppings had to be constructed in all but the three most inby crosscuts separating the intake and 

return air courses. See 30 C.F.R. § 75.333(b)(1). 

4

 A color-coded map of that area of the mine, depicting areas developed at different 

times was introduced into evidence by Big Ridge. Ex. R-10. 

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additional four crosscuts, and the continuous miner was in the #6 entry. Entry #7 was separated 

from entry #8 by permanent stoppings, with the exception of two open crosscuts. The most inby 

crosscut, the last open crosscut, was designated 106+98. The next crosscut outby was designated 

crosscut 106+20. Crosscut 106+98 was a normal-sized crosscut. However, crosscut 106+20 had 

been mined to a height of 12-14 feet, to accommodate a belt. Consequently, it could not be 

easily closed-off with a check curtain. Ventilation air flowed across the working faces, and 

through a crosscut to entry #7. It then flowed inby in entry #7 and over to the #8 return entry 

through the two open crosscuts, restricted only by any check curtains hung in the crosscuts. No 

mining had been conducted in the #7 and #8 entries since the old works had been holed into on 

September 9. While it is not unusual to develop return entries in advance of other entries, it was 

unusual to hole into old “stubbed off” works. Chad Barras, safety director for the Midwest 

Division of Peabody Energy, Big Ridge’s parent company, testified that old mains or works were 

mined into only about once a year. 

Daniel Dixon was the Unit 3 midnight shift foreman who conducted the preshift 

examination for the oncoming day shift on September 11, 2009. He measured return air flow on 

the 013 MMU at 18,900 cfm, less than required under the ventilation plan.5 His “low air” 

reading was called out and recorded on the preshift examination book. Ex. G-5. He also called 

Thomas Myers, Jr., an assistant mine manager on the midnight shift, and reported the low air 

reading to him. 

Myers went to the section to investigate and correct the low air problem, so that the 

oncoming day shift - a production shift - could mine coal. He took an air reading and measured 

the flow at 20,674 cfm, sufficient to proceed with mining. Tr. 140, 148. Myers did not adjust 

curtains or take any other steps to increase air flow. He explained that he used a “Davis 

Anemometer,” which he has found gives him a “better” reading, and often produces an 

acceptable result where measurements made by other means showed problems. Tr. 149-50. 

Myers did not take his measurement in the last open crosscut. Rather he took it in the#7 entry 

just outby crosscut 106+20, the next-to-last open crosscut, and indicated the location by placing 

a green dot on a map of the section. Tr. 137-38; Ex. G-4. He believed that it was reasonable to 

take the reading at that location because the #7 and #8 entries were part of the old works and all 

of the return air that had ventilated the working faces, through entry #6, had to flow through the 

#7 entry at that location before it flowed through crosscuts 106+20 and 106+98 into entry #8. 

Tr. 138. 

Roy Shavez, the oncoming Unit 3 day-shift foreman, saw the low air notation on the 

preshift examination book when he reviewed it prior to the start of the shift. Tr. 164. He met 

Myers as he arrived on the section. Myers told him that the low air had been corrected, and 

5 Dixon testified that he took his air reading in the last open crosscut, 106+98, and that 

there may have been a curtain at least partially closing off crosscut 106+20. Tr. 130-31. He 

agreed that if crosscut 106+20 would have been completely open, that the flow in crosscut 

106+98 would have been substantially reduced, well below the 18, 900 cfm he measured. 

Tr. 132. 

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discussed with him the location where air readings should be taken. Tr. 166. Shavez instructed 

his crew to tighten ventilation curtains and double them if necessary; he then worked on curtains 

himself. He took an air reading in the #7 entry, where Myers had taken his, and measured more 

than 20,000 cfm before he started mining.6 Tr. 169-70. 

When Ramsey arrived at the mine for the inspection, he reviewed the books in which 

results of preshift and onshift examinations were recorded. He noted that “low air” had been 

reported on Unit 3 during the preshift examination immediately prior to the beginning of the day 

shift, i.e., the measured air flow was less than the required 20,000 cfm. Tr. 96-99, 110; Ex. G-5. 

He traveled to the section and inspected the area of the crosscuts between entries #7 and #8, and 

found a check curtain hung in the last open crosscut, 106+98. The next outby crosscut, 106+20, 

which should have been closed off with a check curtain or a permanent stopping, was completely 

open. The combination of the open crosscut at 106+20 and the check curtain in 106+98 resulted 

in a substantially reduced flow of air in the latter. Ramsey measured the flow in crosscut 106+98 

at 7,371 cfm, well below the 20,000 cfm required under the ventilation plan for active mining, 

which was ongoing during his inspection. Tr. 85. He concluded that there was insufficient air 

flowing to the faces in entries #7 and #8, and that WLPM was operating in non-compliance with 

its ventilation plan. 

Ramsey testified that he spoke with the day-shift foreman, Shavez, who informed him 

that he had taken air readings in the next-to-last open crosscut, 106+20 and, while he denied 

hanging the curtain in crosscut 106+98, stated that it had been hung because the roof in crosscut 

106+20 was too high to hang a check curtain. Tr. 90-91. Shavez denied knowledge of the 

curtain in crosscut 106+98, and explained that he told Ramsey, in response to a question, that the 

curtain may have been hung there because crosscut 106+20 was too high. Tr. 171-75. He 

speculated that one of his men may have hung the curtain in crosscut 106+98 when they were 

trying to improve ventilation at the start of the shift and that, if he had seen it, he would have 

taken it down because it would reduce overall air flow. Tr. 171-73, 182-83, 189. Rodney 

Shires, a union representative who accompanied Ramsey, confirmed the presence of a check 

curtain in crosscut 106+98, and corroborated Shavez’s description of his conversation with 

Ramsey, i.e., he was speculating as to the reason the curtain had been hung there. Tr. 117-20; 

Ex. G-21. 

In order to abate the violation, a scoop was parked in crosscut 106+20 and de-energized. 

The crew then stood on the scoop, hung check curtains from the roof and draped curtains over 

the scoop. That closed off the crosscut, forcing sufficient air through crosscut 106+98. The 

abatement process took about 15 minutes. Tr. 103. 

Respondent argues that crosscut 106+98 was not the last open crosscut because it did not 

separate intake from return air. Respondent also argues that the ventilation plan diagrams, on 

6 Shavez also took an air reading in crosscut 106+20. Exactly when he took that 

reading, as well as the results, are not clear. He relied on the reading taken in entry #7 to 

establish that there was sufficient air flow. Tr. 169-71. 

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which the location for the air reading is specified, depict “typical” mining schemes, and that 

mining on the 013 MMU was not typical because the unit had mined into old works. Neither 

argument is persuasive. 

Respondent’s first argument ignores major components of the regulatory definition. As 

noted below, ventilation air became return air once it passed entry #6, the last working place on 

the section. Respondent argues that crosscut 106+98 was not the last open crosscut because it 

did not separate intake from return air. However, as previously noted, section 75.360(c)(1) 

specifies that: “The last open crosscut is the crosscut in the line of pillars containing the 

permanent stoppings that separate the intake air courses and the return air courses.” (emphasis 

supplied). Entry # 8 was the return air course, and entries #4 through #7 were either intake or 

neutral air courses. The line of stoppings separating entry #8 from the other entries ran up the 

line of pillars between entry # 7 and entry #8, and the last open crosscut had to be in that pillar 

line. The fact that the air entering entry #7 was return air does not alter that conclusion. 

As to the second argument, Barras opined that the ventilation plan did not address a 

situation where old works were holed into because Big Ridge was not then mining in a typical 

situation. He further explained that at the time there was no requirement to submit new 

ventilation plans when old works were encountered. It was not until August 2010 that MSHA 

issued a Program Information Bulletin clarifying the term “air changes” and requiring the 

submission of plans addressing ventilation issues when holing into old works.7 Tr. 200. 

However, Barras agreed that return air measurements are typically taken in a crosscut in the line 

of stoppings separating the return air course from other air courses. Tr. 202-03. Myers and 

Shavez testified that taking the air measurement in the #7 entry just outby crosscut 106+20 was 

reasonable because all of the return air that had ventilated the working faces had to pass through 

that location. Tr. 138-39, 167. Return air is defined in the Secretary’s regulations, in part, as 

“air that has ventilated the last working place on any split of any working section.” 30 C.F.R. 

§ 75.301. Since the face in entry #6 was the last working face, ventilation air became return air 

once it passed the continuous miner in entry #6. Tr. 106-07, 147, 180, 206. However, Myers 

and Shavez conceded that nothing in the ventilation plan sanctioned taking the air reading in the 

#7 entry. Tr. 146, 178-79. 

The approved ventilation plan specified that the required air reading was to be taken in 

the last open crosscut, in the line of stoppings separating the return entry from the other entries, 

i.e., in crosscut 106+98. Big Ridge did not take readings in that location; rather a check curtain 

had been hung there. The actual air flow in the last open crosscut, as measured by Ramsey, was 

7,371, well below the required 20,000 cfm. While the ramifications of taking the measurements 

in the #7 entry were minimal, or non-existent, Big Ridge’s actions were not in compliance with 

the ventilation plan. I find that Big Ridge failed to comply with its approved ventilation plan, in 

violation of the standard. 

7

 See MSHA Program Information Bulletin No. P10-13, August 16, 2010. 

http://www.msha.gov/regs/complian/PIB/2010/pib10-13.asp. 

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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 constituting more than ordinary negligence. Id. at 2001. 

Unwarrantable failure is characterized by such conduct as 

"reckless disregard," "intentional misconduct," "indifference," or a 

"serious lack of reasonable care." Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“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 of the 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

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

813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 

1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); 

Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); 

Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of 

the relevant facts and circumstances of each case must be 

examined to determine if an actor’s conduct is aggravated, or 

whether mitigating circumstances exist. Consol, 22 FMSHRC 

at 353. Because supervisors are held to a high standard of care, 

another important factor supporting an unwarrantable failure 

determination is the involvement of a supervisor in the violation. 

REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

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On the face of it, this is almost a classic case of unwarrantable failure. An assistant mine 

manager and a section foreman, both agents of Big Ridge, took critical air readings at a location 

that was not in conformance with the ventilation plan. Had readings been taken at the specified 

location they would, at least technically, not have been sufficient to allow mining, which 

Respondent was doing at the time. It had to have been obvious that the readings were not taken 

in the last open crosscut. The “speculative” response by Shavez, to the effect that the curtain in 

crosscut 106+98 may have been hung because the roof in crosscut 106+20 was too high to close 

off with a curtain, was undoubtedly accurate. Big Ridge’s foremen were almost certainly taking 

the return air reading in crosscut 106+20, or in entry #7, for that reason. In fact, it is highly 

likely that Dixon took his reading there, rather than in crosscut 106+98, because there was no 

means of closing crosscut 106+20 sufficiently to allow him to get anywhere close to the 18,900 

cfm he measured when he conducted the preshift examination. Tr. 132. 

However, it is apparent that the mining situation became atypical when the old works 

were holed into on September 9. It is likely that there were initially five open crosscuts between 

entries #7 and #8 in the old works. Stoppings were built up to crosscut 106+20, and one should 

have been built in that crosscut if it could not have been effectively closed with curtains. 

However, it posed problems because of its height, and Big Ridge did not plan to be mining in 

that area much longer. In fact, mining in the area ceased on September 15, four days after the 

inspection. Tr. 198. Meyers and Shavez were correct in concluding that taking the measurement 

in entry #7 just outby crosscut 106+20 would provide an accurate measurement of the return air 

that had ventilated the reduced number of working faces. If crosscut 106+98 had been 

effectively closed with a check curtain, an accurate reading could also have been obtained in 

crosscut 106+20, although that too would not have been a permissible location under the 

ventilation plan. 

I find that when the 013 MMU holed into the old works, Big Ridge was confronted with 

an unusual situation, there would have been at least five open crosscuts between entries #7 and 

#8, and the next-to-last crosscut, 106+20, had a much greater height than the others. Rather than 

erect ventilation controls that would have forced the air flow through the last open crosscut, it 

decided to measure the return air in the #7 entry, or in the 106+20 crosscut, for the few days it 

would be mining in that area. While the location in the #7 entry provided an accurate 

measurement of the return air flow, it clearly was not in the last open crosscut, as required by the 

plan. 

Big Ridge argues that it acted in good faith, on an objectively reasonable belief that it 

was actually in compliance with the applicable law, and that its conduct cannot be considered to 

be the result of unwarrantable failure if it is later determined that its belief was in error. See IO 

Coal Co., 31 FMSHRC 1346, 1357-58 (Dec. 2009). The argument is rejected. Any belief that 

air readings were being taken in the last open crosscut, which was required under the plan, could 

not have been reasonable, and it is questionable whether those taking the readings could have 

believed, in good faith, that they were complying with the plan. However, I find that Big 

Ridge’s agents had a good faith and objectively reasonable belief that the readings accurately 

measured the flow of return air that had ventilated the working faces. I find Big Ridge’s 

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negligence with respect to the violation to have been high, at least as to the technical violation of 

failing to take the measurements in the last open crosscut. 

An important factor in the unwarrantable failure analysis is the degree of danger posed by 

the violation. IO Coal, 31 FMSHRC at 1355; Spartan Mining Co. 30 FMSHRC 699, 714-15, 

722 (Aug. 2008) (damaged cable presented a condition of high danger to miners, failure to 

withdraw miners after mine fan went out exposed miners to obvious danger and serious hazards). 

Here, there was no degree of danger to miners posed by the violation because the location where 

the measurements were taken provided accurate readings of the volume of air ventilating the 

working faces, which was the intent of the ventilation plan’s requirement. 

Ramsey was concerned that most of the air was short circuiting through the 106+20 

crosscut, and there was insufficient air ventilating the #7 and #8 faces. Tr. 84. The purpose of 

requiring 20,000 cfm of return air is to assure the dilution and removal of methane, dust and 

other noxious gases generated in the mining process. Most of the methane and dust is produced 

during active mining. Tr. 139. After the hole-through, there was no active mining in the #7 and 

#8 entries. They had been mined months before. The measurements taken by the foremen and 

Meyers assured that there was a minimum of 20,000 cfm of air flowing across the working faces, 

such that dust, methane and other gases were effectively disbursed. Ramsey concluded that the 

violation was unlikely to result in an injury because, despite the fact that the mine liberated over 

one million cubic feet of methane in a 24-hour period, he detected no methane in the area. No 

mention was made of dust or other accumulations, and there is no evidence that mining was 

conducted at any time when the return air flow was less than the 20,000 cfm specified in the 

ventilation plan. I find that the violation posed no probability of injury, and that no persons were 

affected. 

The violation was not extensive, Big Ridge had not been put on notice that additional 

compliance efforts were necessary, and pre-order effort to abate the condition is not a relevant 

factor here. 

On the facts of this case, I find that, while Big Ridge’s negligence in failing to comply 

with its ventilation plan was high, it did not rise to the level of unwarrantable failure.8 The 

absence of danger to miners is a very important consideration. While Big Ridge’s actions did 

not conform to the plan, they were correctly calculated to assure that the plan’s objective of 

20,000 cfm of air flow across the working faces was fulfilled. Its actions cannot properly be 

characterized as indifference, serious lack of reasonable care, or reckless disregard for the safety 

of miners.9 

8

 The Commission has recognized that a finding of high negligence suggests an 

unwarrantable failure. San Juan Coal Co., 29 FMSHRC 125, 136 (March 2007) (citing Eagle 

Energy Inc., 23 FMSHRC 829, 839 (Aug. 2001)). 

9

 Had there been active mining in the #7 and # 8 faces, the violation would have posed 

(continued...) 

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Order No. 8417559 

Order No. 8417559 was issued by inspector Morris at 11:00 a.m., on September 14, 

2009, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.400, 

which requires that “Coal dust, including float coal dust deposits 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. The violation was described in 

the “Condition and Practice” section of the Order as follows: 

 Combustible materials, in the form of hydraulic oil, has been 

allowed to accumulate in the cross cut at the surveyor’s station 

#97+33 where the temporary diesel fuel station for the Main West 

is located. Oil up to 3 inches in depth for a distance of 

approximately 40 feet and a width of from 1 to 3 feet is present in 

this cross cut. This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Ex. G-7. 

Morris determined that it was unlikely that the violation would result in an injury, that 

any injury would result in lost work days or restricted duty, that the violation was not S&S, that 

six persons were affected, that the operator’s negligence was high, and that the violation was the 

result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil 

penalty in the amount of $4,810.00 was assessed for this violation. 

The Violation 

Morris was conducting the latter stages of the quarterly inspection of the WLPM in midSeptember 2009. On the day in question he was accompanied by miners’ and company 

representatives when he inspected a temporary fuel station adjacent to the Main West travelway. 

The station consisted of a portable car or trailer with two tanks mounted on it, one containing 

diesel fuel and the other containing hydraulic oil. The car/trailer was positioned in a crosscut 

just off the travelway. Miners using the station would pump oil or fuel from the temporary 

station’s tanks into cans and take it to equipment parked in the travelway. 

The crosscut extended from the south rib of the travelway approximately 50 feet to a 

stopping. The trailer was about nine feet wide and 20 feet long and was adjacent to the east rib 

of the crosscut. Morris observed a pool of hydraulic oil along the west rib of the crosscut. It 

ranged up to three inches deep, one-to-three feet wide and approximately 40 feet long, and 

9

(...continued) 

a degree of danger to miners and Big Ridge’s conduct would have easily qualified as an 

unwarrantable failure. 

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extended to within five feet of the travelway rib. The pool of oil was depicted in a sketch in 

Morris’ notes. Tr. 16-18, 21-23; Ex. G-20. 

Morris determined that the oil was combustible material that had been allowed to 

accumulate in violation of the standard. He also determined that the accumulation would 

propagate a fire or explosion, but that it was not likely to result in an injury because there was no 

ignition source present. Any injury to affected persons, the six-person mining crew, would have 

entailed lost work days or restricted duty. 

Big Ridge challenges the unwarrantable failure designation as well as the amount of the 

assessed penalty.10 

Unwarrantable Failure 

The Secretary argues that the unwarrantable failure designation should be sustained 

because the condition was extensive, obvious to management and mine personnel, existed prior 

to the start of the shift, and the mine had a significant history of accumulations violations that 

should have put it on notice that greater compliance efforts were necessary. Big Ridge disputes 

each of the Secretary’s arguments. 

The extent of the condition 

The pool of oil was approximately 40 feet long, one to three feet wide and up to three 

inches deep. It ran along the west rib of the crosscut, and extended to within about five feet of 

the travelway’s south rib. The floor of the mine in the crosscut declined in two planes, toward 

the west rib and toward the stopping. Tr. 33. Consequently, the deeper and wider portions of the 

pool would most likely have been at the stopping end of the crosscut, some 45 feet away from 

the edge of the travelway. The condition was abated by applying rock dust to the pool of oil, 

because there was no other means to remove it. Tr. 33. Miners had to “go out and get the rock 

dust” and it took five men a total of 40 minutes to abate the condition. Tr. 33. It is likely that 

most of that time was devoted to obtaining the rock dust. Considering the size and location of 

the pool, and that the higher end, nearer the travelway, was most likely of minimal depth, I find 

that the violation was not extensive, at least to the point of being an aggravating factor in the 

unwarrantable failure analysis. 

Obviousness – duration – knowledge of mine management 

Morris believed that Big Ridge knew or should have known of the violation because 

several members of management had inspected and/or passed the fuel station while the pool was 

there. While he agreed that he did not know how long the pool had been there, he believed that 

it would have taken a considerable amount of time to accumulate that volume of oil. Tr. 23. The 

10 While it identified gravity as an issue in its brief, its argument was directed to the 

unwarrantable failure and negligence designations. 

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Secretary contends, and I agree, that the pool would have existed substantially as Morris saw it, 

when the preshift examination for the day shift was conducted, i.e., at least one shift. Daniel 

Dixon, the midnight shift foreman, conducted the preshift examination, but did not see the oil 

pool. Tr. 54. He did see three pallets of oil cans stored in the crosscut that would have been 

close to the area where the pool was depicted on Morris’ sketch. Tr. 52-53, 58-59. He was 

aware that Big Ridge was “transitioning” from use of cans to tanks, because citations had been 

issued for conditions related to the presence of cans. He directed that the pallets be removed, 

and they apparently had been removed prior to issuance of the order. Tr. 52-54. 

As to the presence of managers other than Dixon, shift foremen typically drove man trips 

into and out of the section at the shift change, and Morris had passed two mine managers exiting 

the mine, who would have driven past the fuel station on their way into and out of the mine. 

Tr. 20-24. However, it is highly unlikely that the pool of oil would have been seen by an 

individual passing by in the travelway. The travelway and crosscut were not lit. Consequently, 

lights on mobile equipment and miners’ cap lamps provided the only illumination, and there was 

no light source at the stopping end of the crosscut that could have reflected off the surface of the 

pool. Tr. 43. Morris conceded that operators of mobile equipment using the travelway would 

have to focus on roadway and roof conditions, and that Big Ridge had trouble maintaining some 

travelways such that there was no “right-hand side going in; left-hand side coming out” travel 

pattern because equipment typically had to maneuver side-to-side. Tr. 47. Morris agreed that 

equipment operators who would have entered the crosscut to use the fuel station were “almost 

all” hourly employees. Tr. 33. While Morris believed that there were some salaried personnel 

who operated such equipment, there is no evidence that such individuals would have been at the 

fuel station while the pool of oil existed. 

Morris testified that he saw the pool of oil as soon as he “walked over” to the fuel station, 

i.e., it would have been illuminated with his cap light. Tr. 34. Notes taken by Big Ridge’s 

representative, who no longer worked for Big Ridge, indicated that it took Morris “20 minutes to 

find” the oil pool. Tr. 66; Ex. R-13. I place virtually no weight on that evidence. I find that the 

pool should have been seen when illuminated by the cap lamp of a miner walking into the 

crosscut, but not by personnel driving by the crosscut in the travelway. Dixon should have seen 

the pool when he conducted the preshift examination. However, his attention was apparently 

focused on the pallets of cans, which may have obstructed his view of the pool to some extent. 

He did take steps to address conditions in the crosscut, which evidences effort on the part of Big 

Ridge to attend to the presence of combustible materials stored in that location. I find the length 

of time the violation existed, obviousness, and management knowledge factors to be only 

slightly aggravating in the unwarrantability analysis. 

Notice of need for greater compliance efforts 

Morris had printed out a history of violations for the WLPM that showed the issuance of 

over 150 violations of section 75.400 from January through September 2009. Tr. 25-28; 

Ex. G-10. Morris had given Big Ridge verbal warnings about accumulations violations, and had 

increased the negligence designations on such violations to “high” because such violations had 

been issued on more than three or four occasions. Tr. 28-29. However, many of the violations 

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on Morris’ listing remained in contest. Tr. 40-42. The listing addressed all section 75.400 

violations, a very broad standard that included coal accumulations along belts and on mobile 

equipment, as well as possible accumulations of trash. Tr. 40-41. Morris did not recall, and the 

listing did not indicate, whether any of the previous accumulations violations involved 

temporary fuel stations or pools of oil. Tr. 40-42, 44-45. 

The Secretary need not prove the issuance of “violations involving the same regulation 

and occurring in the same area within a continuing time frame” in order to establish prior notice. 

IO Coal Co. Inc., 31 FMSHRC at 1354; San Juan Coal Co., 29 FMSHRC at 131. Nevertheless, 

the Secretary’s position would be strengthened considerably where some nexus between prior 

violations and the subject violation can be shown, e.g., a relevant consideration might be whether 

increased compliance efforts in response to the previous violations would have addressed the 

subject condition. I have previously held that, in order to establish that an operator had been put 

on notice that additional compliance efforts were needed to address a certain type of 

accumulation, the Secretary was required to show more than a history of prior citations for 

violations of that broad standard. Cumberland Coal Resources, LP, 31 FMSHRC 137, 156 

(Jan. 2009) (ALJ) (unrelated finding reversed, 32 FMSHRC 442 (May 2010)). Here, as 

discussed infra, the accumulations violations appear to have generally involved coal fines and 

similar materials, a substantial number having occurred on mobile equipment. The accumulation 

in question, a pool of oil at a temporary fuel station, was somewhat unique and likely would not 

have been addressed by compliance efforts directed toward the previously cited conditions. 

I find the prior notice factor here to be neutral. 

Danger to miners 

As noted previously, whether the violative condition posed a high degree of danger to 

miners is an important element in the unwarrantability analysis. Morris determined that the 

violation was unlikely to result in a lost work days or restricted duty injury, and that it was not 

S&S. The accumulations did not pose a high, or even a significant, degree of danger to miners. 

Conclusion 

As noted above, the length of time the violation existed, obviousness, and management 

knowledge factors weigh slightly in favor of a finding of unwarrantability. Pre-order abatement 

effort is not a relevant factor, and the extensiveness and notice of a need for greater compliance 

effort factors are neutral. Weighing heavily against an unwarrantability finding is the fact that 

the violation did not pose a high degree of danger to miners. On consideration of all relevant 

factors, I find that the violation was not the result of Big Ridge’s unwarrantable failure, but that 

its negligence was moderate. 

Order No. 8417566 

Order No. 8417566 was issued by Morris at 7:35 a.m., on September 16, 2009, pursuant 

to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which was described 

in the “Condition and Practice” section of the Order as follows: 

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The company #DT-07 diesel truck, located on the surface, has an 

accumulation of combustible materials, in the form of oil, oil 

saturated coal fines and loose coal, diesel fuel and diesel fuel 

saturated material on it. The accumulations range from a film of 

oil and diesel fuel to approximately 1 inch of oil and diesel fuel 

saturated coal fines, loose coal, and materials and are present in the 

engine and transmission compartments, the hydraulic tank and the 

fuel tank. This is an unwarrantable failure to comply with a 

mandatory standard. 

Ex. G-11. 

Morris determined that it was unlikely that the violation would result in an injury, that 

any injury would result in lost work days or restricted duty, that the violation was not S&S, that 

four persons were affected, that the operator’s negligence was high, and that the violation was 

the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil 

penalty in the amount of $4,000.00 was assessed for this violation. 

Big Ridge challenges the high negligence and unwarrantable failure designations, as well 

as the amount of the penalty. 

The Violation 

Morris was conducting the final stages of the regular quarterly inspection of the WLPM, 

and made a special effort to identify and inspect pieces of mobile equipment that had not yet 

been inspected. Tr. 208. He was accompanied by Bill Shover, a miners’ representative, and Bob 

Clarida, a safety and compliance officer for Big Ridge. Big Ridge kept a log of equipment that 

had been inspected, and knew what equipment needed to be inspected by the end of the quarter, 

which was two weeks away. Tr. 211. While on the surface, Morris observed a diesel truck that 

had yet to be inspected, a DT-07 open-type, four-man personnel transport. Miners were waiting 

while the vehicle was being fueled before going underground. 

Morris inspected the DT-07 and observed the conditions noted in the order. 

Accumulations up to one inch deep of oil, oil-saturated coal fines and loose coal, diesel fuel and 

material saturated with diesel fuel was on the fuel tank and in the engine and transmission 

compartments. He determined the depth of the accumulations by pushing a rod into them and 

measuring the residue with a tape measure. The accumulations on the fuel tank, most likely dust 

and other such material that stuck to residue of spilled diesel fuel, were apparent as the vehicle 

was being fueled. Morris lifted the hood of the truck, which rendered the accumulations in the 

engine and transmission compartments readily observable. He believed that those accumulations 

would have been obvious to anyone conducting a pre-operational check on the vehicle. Tr. 212. 

He was “certain” that the vehicle had been used in that condition because it was in use at the 

time, was about to be taken underground, and because personnel transports were in short supply, 

partially because of Big Ridge’s use of “hot seat” shift changes. Tr. 213-14. 

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As Big Ridge apparently concedes, the accumulations violated the standard. 

Unwarrantable failure - negligence 

Need for greater compliance efforts 

The Secretary’s strongest argument on the unwarrantable failure issue is that Big Ridge 

had been put on notice of a need for greater compliance and knew that this piece of equipment 

would be inspected before the end of the quarter, yet failed to assure that the standard was 

complied with. She points to the previously discussed evidence of some 172 accumulations 

violations having been issued between January 1 and September 16, 2009. Tr. 215; Ex. G-10. 

Morris reiterated his testimony that the number of accumulations violations had led to higher 

negligence findings, and further escalated to the issuance of orders under section 104(d) of the 

Act. Big Ridge again counters that violations issued under the broad accumulations standard do 

not establish prior notice for unwarrantable failure purposes. 

In general, I agree that mere numbers of prior citations of the broad accumulations 

standard may not be sufficient to establish a need for greater compliance efforts with respect to a 

particular accumulations violation, e.g., the pool of oil at the temporary fuel station. However, 

here the Secretary’s evidence went much further. Morris had been involved in all of the 

inspections in 2009 and was familiar with the violation history, which included specific warnings 

about accumulations violations on mobile equipment. Throughout the 2009 inspections there 

had been discussions with Rig Ridge management about accumulations violations on equipment. 

Tr. 15. At the close of each quarter, a closeout conference was held with Big Ridge managers to 

review citations issued during the quarter and discuss areas of concern. The lead MSHA 

inspector usually led the conference, and prepared a closeout document presenting MSHA’s 

findings during the quarter. The closeout document for the second quarter, January 1 through 

March 31, 2009, noted an increase from 29 to 97 in the number of section 75.400 violations 

issued in the first and second quarters. Tr. 218; Ex. G-13. The section entitled “Areas of 

Concern” referenced an increase of 234% in accumulations violations over the last quarter, and 

highlighted that “Most of these violations occurred on mobile equipment.” Ex. G-13 at 11. Item 

5 in that section further addressed the problem of oil leaks and accumulations on diesel 

equipment. Id. The Secretary introduced copies of 17 section 75. 400 violations involving 

mobile equipment that had been issued to Big Ridge during the last inspection quarter, prior to 

Morris’s order. Ex. G-14. Clarida confirmed that Morris “had talked about seeing dirty 

equipment before and that we had had so many 400s written on this,” and that Morris “had 

mentioned it before about washing the equipment and so on.” Tr. 274, 290. 

Big Ridge protests that the bulk of the Secretary’s evidence pertains to “face” equipment 

which operates in an environment where coal dust and fines are more likely to be encountered, 

and that the evidence of a history of accumulations violations on mobile equipment should not 

establish prior notice with respect to surface equipment. Resp. Br. at 30-31. Big Ridge 

attempts to draw too fine a line between the types of mobile equipment that were subject to prior 

enforcement actions. There was a significant increase in accumulations violations from the first 

to the second quarter. Many of those violations involved mobile equipment, such that the topic 

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of accumulations on mobile equipment became a focus of the quarterly closeout meeting, and 

was specifically identified as an issue that required increased attention by Respondent. While 

the vast majority of citations issued in the quarter, 223 out of 226, had been issued underground, 

the references to accumulations on mobile equipment were not restricted to face equipment and 

there is no indication that the discussions were so limited. A significant portion of the DT-07 

truck’s operation no doubt occurred underground. The Secretary presented ample evidence that 

Big Ridge had been placed on notice that greater compliance efforts were necessary with respect 

to accumulations on mobile equipment. 

Efforts to abate conditions subject of prior notice 

Having been placed on notice of a need for greater compliance efforts, Big Ridge’s 

response to such notice becomes a relevant factor in the unwarrantable failure analysis. San 

Juan Coal, 29 FMSHRC at 134. There is virtually no evidence that Big Ridge took any steps to 

address the high incidence of accumulations violations on mobile equipment until after this order 

had been issued. It had retained a contractor to wash equipment on a weekly basis, a cleaning 

effort that had failed to prevent the numerous accumulations violations. Tr. 325. It was not until 

after the September 16 and 17 orders were entered, that it purchased a power washer and 

installed it in a crosscut underground, where equipment operators could stop and wash 

equipment as needed. Tr. 325. Also after the orders were entered, it implemented a “dripper” 

program, designed to repair leaks in equipment hydraulic systems that resulted in saturated 

deposits of coal fines and other materials. Tr. 277-78, 286. However, there is no evidence that 

any similar steps were taken between the second quarter closeout meeting and the time the order 

was entered on September 16, 2009. 

Commission precedent reflects that an operator’s effort to abate violative conditions can 

be relevant in two ways. An operator may be put on notice of a compliance problem in a certain 

area through a recent history of violations, e.g., as here, a recent history of accumulations 

violations on mobile equipment, and/or warnings from MSHA inspectors about such violations. 

IO Coal Co. Inc., 31 FMSHRC at 1353. The priority that a mine operator placed on addressing 

such a problem area prior to the issuance of the violation at issue is a relevant unwarrantability 

consideration. Id. 31 FMSHRC at 1356. San Juan Coal Co., 29 FMSHRC at 134. An operator 

may also have actual or constructive notice of the specific violative condition before it has been 

cited. IO Coal, 31 FMSHRC at 1356-57. In such cases, the operator’s efforts to abate that 

condition, e.g., whether the abatement effort was subordinated to other work, may support an 

unwarrantable failure finding. San Juan Coal, 29 FMSHRC at 134-35. 

Here, the Secretary established that Big Ridge had prior notice of a problem with 

accumulations on mobile equipment, and that it made no effort to abate such conditions prior to 

the issuance of the order. 

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Extensiveness - obviousness - knowledge of the mine operator 

The violative condition was neither extensive, nor obvious. While there was some 

material, most likely dust or dirt, saturated in a film of spilled diesel fuel on the fuel tank, the 

more significant accumulations were apparent only after the hood of the engine compartment had 

been raised and the door to the transmission compartment had been opened. Tr. 208-09, 212-14. 

Those actions would normally have been taken by an equipment operator performing a preoperational check. However, there is no mandatory standard requiring pre-operational checks of 

mobile equipment used in underground coal mines. Tr. 242. Consequently, unlike required 

preshift examinations, where the examiner is considered an agent of the operator, the 

observations of an hourly equipment operator conducting a pre-operational check of mobile 

equipment are not attributable to the mine operator. The accumulations in the 

engine/transmission compartment ranged up to one inch in depth. The material on the fuel tank 

was apparently more of a film of saturated dust. These conditions overall were not extensive, 

and were not obvious such that they reasonably should have been observed by management 

personnel. There is no evidence that the mine operator was aware of the condition prior to the 

issuance of the order. 

Danger to miners 

The accumulations violation did not pose a high degree of danger to miners. Morris 

determined that the violation was unlikely to result in an injury because there was no ignition 

source for the accumulations. Tr. 210. If an injury were to occur, it would have resulted in lost 

time or restricted duty. Morris determined that four persons were affected by the violation 

because there were four miners about to ride on the equipment. It appears unlikely that all four 

miners would have been affected if the accumulations had been ignited. There was relatively 

little combustible material, and any fire would most likely have been extinguished without major 

incident. Morris’ injury evaluation was based upon possible smoke inhalation by the miners. 

Tr. 255. However, he agreed that they would most likely simply have moved to the side of the 

vehicle upstream in the prevailing air flow, thereby avoiding that hazard. Tr. 255. I find that the 

violation was unlikely to result in a lost work days or restricted duty injury and that one miner 

was affected. 

Duration of violation 

Morris was told that the material had accumulated for two to three days. Tr. 239. Big 

Ridge conducted weekly checks of equipment. The DT-07 truck had last been checked on 

September 14, two days earlier, and no problems were noted. Tr. 275; Ex. G-18. Clarida opined 

that if the accumulations were present when the equipment was checked on the 14th, that they 

would have been noted and corrected. Tr. 275. I accept that testimony, and find that the 

accumulations occurred over the period, September 14 to 16, gradually building up to the degree 

observed by Morris. The time when the deposits would have risen to a level sufficient to qualify 

as unlawful accumulations is unknown, but most likely would have been relatively close in time 

to when the violation was issued. 

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Conclusion 

Big Ridge argues that Morris based his unwarrantable determination solely on the prior 

notice provided by the history of violations and discussions with MSHA, and that an 

unwarrantable failure finding cannot be based upon one factor. Its argument is unavailing for 

two reasons. First, the determination of whether a violation was the result of an unwarrantable 

failure is not restricted to consideration of the factors relied on by the inspector, or even to those 

urged by the Secretary. San Juan Coal, 29 FMSHRC at 129. That determination must be based 

upon a consideration of all relevant evidence introduced at the hearing, and the factors identified 

by the Commission as being relevant to the determination. Big Ridge supported its second point 

by citing Windsor Coal, 21 FMSHRC 1001 and San Juan Coal, 29 FMSHRC at 129-36. 

However, those cases do not state that an unwarrantable failure finding may not be based upon 

one of the pertinent factors. Rather, like numerous other cases including IO Coal, they instruct 

that a Judge may not base a determination of unwarrantable failure on consideration of one factor 

“to the exclusion of others.” All pertinent factors must be considered, and it is possible that one 

factor may predominate on the facts of a particular case. 

The factors weighing in favor of a finding of unwarrantable failure are that Big Ridge 

was put on notice that greater compliance efforts were needed to address accumulations on 

mobile equipment and that it failed to implement measures to address such problems prior to the 

issuance of the order. Factors weighing against an unwarrantable finding are; the violative 

condition was not extensive; the condition had not existed for a significant length of time; the 

condition was not obvious; Big Ridge had no knowledge of the condition; and the condition 

posed relatively little danger to miners. 

On the facts of this case, I find that the violation was not the result of Big Ridge’s 

unwarrantable failure. While the prior notice considerations are substantial, they are outweighed 

by the other factors, especially Big Ridge’s lack of knowledge and the absence of any significant 

danger to miners. Based on Big Ridge’s unresponsiveness to notice of accumulations problems 

on mobile equipment, I find that its negligence was high. 

Order No. 8417568 

At 8:30 a.m. on September 17, the day after Morris issued the previous order, he issued 

Order No. 8417568 pursuant to section 104(d)(2) of the Act, also alleging a violation of 

30 C.F.R. § 75.400. The violation was described in the “Condition and Practice” section of the 

Order as follows: 

An accumulation of combustible materials, in the form of oil and 

oil saturated coal fines and other material, is present on the 

company #ST-04 diesel Getman tractor, located on the surface. 

The accumulations range from a film of oil to approximately 1/2 

inch of standing oil to approximately 1 inch of saturated coal fines 

and other materials. The accumulations are present in the 

operator’s compartment, the engine compartment, transmission 

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compartment, and on most of the outside of the tractor. There are 

numerous oil leaks that must be repaired to terminate this order. 

This is an unwarrantable failure to comply with a mandatory 

standard. 

Ex. G-16. 

Morris determined that it was reasonably likely that the violation would result in an 

injury, that any injury would result in lost work days or restricted duty, that the violation was 

S&S, that one person was affected, that the operator’s negligence was high, and that the violation 

was the result of the operator’s unwarrantable failure to comply with the mandatory standard. 

A civil penalty in the amount of $11,597.00 was assessed for this violation. 

Big Ridge challenges the S&S and unwarrantable failure designation, as well as the 

amount of the penalty. 

The Violation 

As noted previously, on September 17, Morris was in the process of completing the 

mine’s quarterly inspection, and was focusing on mobile equipment that had not yet been 

inspected. He was again accompanied by Clarida and Shover. While on the surface, he 

approached a Getman tractor, company number ST-04, and prepared to inspect it. However, he 

deferred the inspection for 10-15 minutes to allow the operator to tow a trash car underground, 

and proceeded to inspect a diesel truck and a diesel scoop, which he found to be in compliance 

with applicable regulations. When the tractor returned to the surface, he inspected it and found 

the conditions noted in the order. The inspection took about 30 minutes. When it was finished, 

the equipment was moved, and Morris observed a pool of oil in an area approximately three and 

one-half by six feet where the tractor had been parked. He believed that the oil had leaked from 

the tractor during the 30-minute inspection. Tr. 228-29; Ex. G-17. 

Morris was concerned that the equipment had been operated with such a significant leak, 

and with the accumulations that he observed. The equipment operator, Korby Kirkman, stated 

that the equipment was in that condition when he started his trip down the slope, and that the 

operator on the midnight shift had started to wash it before he got it. Ex. G-17. Morris 

suggested to Clarida that higher management officials come and observe the conditions. Terry 

Ward, general mine manager, and Ricky Phillips, the superintendent, examined the tractor, and 

Phillips took pictures of the conditions. Both stated that they could not defend the conditions. 

Tr. 237-38; Ex. G-17. Phillips stated that they had met with the midnight shift crew after the 

order had been entered the previous day, and instructed them to wash the equipment. Tr. 238-39. 

He also stated that he was going to call the miner who had operated the tractor on the midnight 

shift and fire him. Tr. 238. 

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Morris then proceeded to the mechanics’ shop to check for records on the tractor. He 

noticed a notebook on a desk in the shop, on which someone had written “9-15-09 ST04 was 

tagged out for oil leak on hyl tank, mine manager went ahead an run it.” 11 Tr. 233-35; Ex. G-18. 

Trevor Walker, who worked the third shift on September 17, testified that he had used the 

tractor to rock dust the belt line. Before using it he had performed a pre-operational check, and 

had no recollection of finding any problems, such as accumulations or oil leaks. Tr. 300-01. 

When his shift ended, he began to wash the tractor, starting with the exterior and the operator’s 

compartment. He noticed some oil in the cab, but not on other parts of the vehicle. Tr. 305. He 

did not finish washing it, because Kirkman needed the tractor, and said that he would finish 

washing it. Tr. 301-03. He allowed Kirkman to take the tractor, and left the miner site. About 

two hours after returning home, he got a call from Phillips, which surprised him. He was not 

fired, as Phillips had indicated to Morris, presumably because he had started to wash the 

equipment and released it to Walker on his promise to complete the washing. However, he 

received a disciplinary letter that he and a union representative signed under protest, and that 

was later taken out of his file. Tr. 306-08; Ex. G-22. 

Kirkman worked the day shift as an outside supply man delivering supplies to the units. 

He testified that when he arrived Walker was in the process of washing the tractor. He had 

started on the exterior, and had worked on the operator’s compartment. The floor of the 

compartment was wet with water, and had rock dust in it. He described the condition as “nasty.” 

Tr. 311-12. Kirkman told Walker that he needed the tractor to take a take a trash trailer into the 

mine, and that he would finish washing it when he returned. Walker left the tractor in Kirkman’s 

hands. Kirkman typically timed his first run into the mine to correspond with the shift change, 

and followed that traffic into the mine, thereby avoiding the out-bound traffic. He also deferred 

performing his pre-operational check until he returned to the surface. Tr. 314, 317. He had 

taken the tractor to the shop the day before because of an oil leak somewhere behind the firewall 

that was slowly dripping into the operator’s compartment. A mechanic told him to put a tag on 

it, which he did. Tr. 320-23. When he took the tractor from Walker on September 17, he could 

not tell if it was still leaking because of the water and rock dust in the cab. He also related that 

there was a meeting of day-shift equipment operators, at which they were told to wash 

equipment and have leaks fixed. However, that was after the subject order had been entered. Tr. 

316. 

As Big Ridge concedes, the accumulations of oil and oil saturated coal fines and other 

material violated the standard. 

11 Morris also spoke to a mechanic in the shop about the note. Tr. 234-36. On crossexamination, Big Ridge inquired about the identity of the miner, and the Secretary objected to 

disclosing it on grounds of the informant’s privilege. Tr. 249-50. The Secretary’s objection was 

sustained, and it was noted that the only additional information disclosed during the 

conversation, i.e., the name of the manager, would be disregarded in deciding the case. Tr. 250-

51. 

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Significant and Substantial 

The Commission recently reviewed and reaffirmed the familiar Mathies12 framework for 

determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC 

___, ___ (October 5, 2011): 

The S&S terminology is taken from section 104(d) of the 

Mine Act, 30 U.S.C. § 814(d), and refers to more serious 

violations. A violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that 

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

reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the 

Commission further explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. 

MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. 

Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). An evaluation of the reasonable likelihood of 

injury should be made assuming continued normal mining 

operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 

(Aug. 1984). 

. . . .
 

. . . .
 

The Commission recently discussed the third element of 

the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 

32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an 

S&S violation for using an inaccurate mine map). The 

12 Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984) . 

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Commission held that the “test under the third element is whether 

there is a reasonable likelihood that the hazard contributed to by 

the violation, i.e., [in that case] the danger of breakthrough and 

resulting inundation, will cause injury.” Id. at 1281. Importantly, 

we clarified that the “Secretary need not prove a reasonable 

likelihood that the violation itself will cause injury.” Id. The 

Commission also emphasized the well-established precedent that 

“the absence of an injury-producing event when a cited practice 

has occurred does not preclude a determination of S&S.” Id. 

(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and 

Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 

1996)). 

The fact of the violation has been established. A measure of danger to safety, a discrete 

safety hazard, was contributed to by allowing combustible material to accumulate on the tractor, 

i.e., that the accumulations could be ignited exposing miners to heat, smoke and other products 

of combustion. The issues in the S&S analysis are whether the hazard contributed to was 

reasonably likely to result in a reasonably serious injury. 

Morris testified that the oil was “all over” the piece of equipment, and that a filter on the 

exhaust system got “extremely hot” during operation. Tr. 230-31. In response to a question 

from the Secretary, he added that an injury from combustion could include burns. Tr. 232. He 

also described the presence of oil in the operator’s compartment as being “all over the floor of 

the cab,” and determined that the condition presented a slip and fall hazard that could result in 

abrasions or broken bones. Tr. 231-32. Morris made no mention of a combustion hazard in his 

field notes, wherein the only reference to potential injuries was the following: “It’s reasonably 

likely that this condition would cause an event resulting in L/W [lost work] days injuries related 

to slipping & tripping in the operator’s compartment.” Ex. G-17 at 6. He explained that he 

could have issued a citation or order for a violation of section 75.1725(a), which requires that 

mobile equipment be maintained in a safe operating condition, but that he did not like to “double 

dip,” and felt that his order effectively took the equipment out of service and forced correction of 

the leak problem. Tr. 240. 

I place little weight on Morris’ “combustion” theory, for a number of reasons. While he 

identified an “extremely hot” filter, and stated that combustion could cause burns, he failed to 

express an opinion that the violative condition, the accumulation of combustible materials, was 

reasonably likely to result in a burn or other serious injury as a result of combustion. He did not 

know the flash point of the oil or the oily accumulations. Nor did he know the temperature that 

the filter attained. Tr. 246. Moreover, the equipment had been operated for a sufficient period 

of time to have fully heated up, and no ignition or combustion had occurred. Morris was, no 

doubt, thinking about the combustibility of the accumulations when he issued the violation. 

However, he clearly did not base his S&S determination on the likelihood of a burn or other 

injury resulting from combustion. When he issued Order No. 8417566 the previous day, under 

very similar circumstances, his S&S determination was based upon potential combustion and he 

found that that violation was not S&S because of the absence of an ignition source. In addition, 

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he evaluated the potential injuries resulting from any combustion to be lost work days or 

restricted duty due to smoke inhalation and stated that if he had thought the combustion would 

have resulted in burns he would have rated the injuries as permanent. Tr. 255. As noted in the 

discussion of Order No. 8417566, occurrence of an injury due to smoke inhalation was little 

more than a theory. 

The accumulations in the operator’s compartment did not present a combustion hazard, as 

Morris evidently concluded. I accept the testimony of Kirkman and Walker that Walker had 

started to wash the equipment before Kirkman took it underground. Pictures, apparently taken 

by Phillips, showed conditions in the operator’s compartment, which appeared to be very wet 

with water, rock dust, and yellow tinged deposits that Morris identified as hydraulic oil. Tr. 325-

28; Ex. R-25 a-c. Judging from the appearance of the material, there was virtually no chance of 

an ignition in the operator’s compartment, which is most likely why Morris made his gravity 

evaluation based on the slip and fall potential. An ignition of deposits in the engine 

compartment was possible, but did not pose any significant possibility of injury. As discussed 

with respect to Order No. 8417566, an ignition was unlikely, and any ignition most likely would 

have been promptly extinguished. Miners could easily have positioned themselves to avoid 

inhalation of smoke and other products of combustion. 

I find that there is insufficient evidence upon which to base a finding that the hazard 

contributed to by this violation was reasonably likely to result in an injury producing event, or 

that a reasonably serious injury would have resulted.13 I find that the violation was not S&S. 

Unwarrantable failure 

Prior notice - efforts to abate 

The discussion of these factors with respect to Order No. 8417566 applies fully to this 

violation, except that Big Ridge did take some action in response to that order, prior to the 

issuance of the subject order. While Big Ridge’s more significant remedial measures, 

installation of the power washer and establishment of the dripper program, were not 

implemented until later, a meeting was held with equipment operators on the night of September 

16 at which they were instructed to wash accumulations off of mobile equipment and repair oil 

and other leaks. Walker had started to wash the tractor. However, Kirkman aborted that effort, 

and promptly drove the tractor underground because he deemed it critical to avoid outbound 

traffic associated with the shift change. 

13 While Morris’ determination that the oil deposits in the operator’s compartment 

presented a slip and fall hazard is plausible, that is not a hazard that was contributed to by 

Respondent’s violation of the combustible accumulation standard. In apparent recognition of 

that fact, the Secretary’s S&S argument was premised, almost exclusively, on the combustion 

hazard, the slip and fall hazard seemingly added as an afterthought. Sec’y. Br. at 22. 

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Big Ridge’s communication of emphasis on the wash/repair program following issuance 

of the September 16 order demonstrates some responsiveness to the prior notice of extensive 

problems with accumulations of combustible materials on mobile equipment. However, that 

emphasis was not sufficient to prompt Walker to start washing the equipment early enough to 

complete the task prior to the end of his shift, or to prompt Kirkman to complete the task prior to 

taking the tractor underground. I find that the extensive prior notice, reinforced by issuance of 

the September 16 order, and Big Ridge’s anemic efforts to address such violations, are 

aggravating factors in the unwarrantable failure analysis. 

Extensiveness - Obviousness - Degree of Danger 

For the same reasons discussed with respect to Order No. 8417566, I find that the 

violative condition was neither extensive, nor obvious, and that it did not pose a high degree of 

danger to miners. Morris was about to inspect the tractor, but agreed to defer the inspection 

while Kirkman took the trash trailer into the mine. The fact that Morris allowed the tractor to be 

used suggests that the condition was not obvious or extensive. 

Big Ridge’s knowledge of the violation - efforts to abate 

Unlike with Order No. 8417566, there is convincing evidence that Big Ridge had actual 

or constructive knowledge of the violative condition. Walker had taken the tractor to the shop 

on September 15 because of excessive leaking of hydraulic oil behind the fire wall, dripping into 

the operator’s compartment. A mechanic in the shop told him to “put a tag on it,” i.e., take it out 

of service, which he did. The shop’s records indicate that, two days prior to issuance of the 

order, and despite the fact that the leak, or leaks, had not been repaired, a mine manager directed 

that the tractor by placed back in service. It apparently remained in service up to the time the 

order was entered. 

Big Ridge’s agent placed the equipment back in service. He knew that the condition that 

prompted the tractor to be brought in for service had not been addressed, and undoubtedly knew 

the nature of the problem when he ordered it into service. He knew, or should have known, that 

leaking hydraulic oil would accumulate on the equipment and saturate other potentially 

combustible deposits. He also knew or should have known of the excessive recent history of 

violations for such accumulations and MSHA’s warnings about such conditions. I find Big 

Ridge’s knowledge of the violative condition, and its deliberate subordination of the abatement 

effort to other work, to be a strongly aggravating factor in the unwarrantability analysis. 

Conclusion 

Unlike Order No. 8417566, Big Ridge’s knowledge of the violative condition and its 

failure to take steps to abate it easily tips the balance of the unwarrantability analysis in the 

Secretary’s favor. I find that the violation was the result of Big Ridge’s unwarrantable failure to 

comply with the standard. 

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The Appropriate Civil Penalties 

Big Ridge is a large mine operator. Its history of violations for the 15-month period 

preceding issuance of the orders is reflected in a printout from MSHA’s computerized database 

which was introduced into evidence. Ex. G-19. The report indicates that Big Ridge had 782 

paid violations in the subject time period and that approximately 53 of those were S&S. None of 

the violations was identified as exhibiting an excessive history. Neither party urges Big Ridge’s 

history of violations as a factor that should increase or decrease the amount of any civil penalty 

imposed for the subject violations. The parties stipulated that the proposed penalties would not 

affect Big Ridge’s ability to continue in business. Big Ridge demonstrated good faith in 

promptly abating the violations. 

Order No. 8418235 charged that Respondent failed to comply with its approved 

ventilation plan, that the violation was unlikely to result in a lost work days or restricted duty 

injury, that the violation was not S&S, that eight persons were affected, that the operator’s 

negligence was high, and that the violation was the result of the operator’s unwarrantable failure 

to comply with the mandatory standard. A civil penalty, in the amount of $4,099.00, was 

assessed for this violation. Big Ridge was found to have violated the standard. However, it was 

found that the violation presented no possibility of injury, that no miners were affected, and that 

Big Ridge’s negligence was high, but that the violation was not the result of its unwarrantable 

failure. Order No. 8418235 will be amended to a citation issued pursuant to section 104(a) of 

the Act. Considering the reduction in the level of gravity and the vacating of the unwarrantable 

failure charge, as well as the factors enumerated in section 110(i) of the Act, I impose a penalty 

in the amount of $500.00. 

Order No. 8417559 alleged that Big Ridge violated the combustible accumulations 

standard, that the violation was unlikely to result in a lost work days or restricted duty injury, 

that six persons were affected, that the operator’s negligence was high, and that the violation was 

the result of the Big Ridge’s unwarrantable failure to comply with the mandatory standard. A 

civil penalty, in the amount of $4,810.00, was assessed for this violation. Big Ridge was found 

to have violated the standard, and that the violation was unlikely to result in a lost work days or 

restricted duty injury to six persons. However, the violation was not the result of Big Ridge’s 

unwarrantable failure or high negligence. Rather, its negligence was moderate. Order No. 

8417559 will be amended to a citation issued pursuant to section 104(a) of the Act. Considering 

the vacating of the unwarrantable failure charge, the reduction in the level of negligence, as well 

as the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of 

$1,500.00. 

Order No. 8417566 alleged that Big Ridge violated the combustible accumulations 

standard, that the violation was unlikely to result in a lost work days or restricted duty injury, 

that four persons were affected, that the operator’s negligence was high, and that the violation 

was the result of the Big Ridge’s unwarrantable failure to comply with the mandatory standard. 

A civil penalty, in the amount of $4,000.00, was assessed for this violation. Big Ridge was 

found to have violated the standard, and that the violation was unlikely to result in a lost work 

days or restricted duty injury to one person. In addition, the violation was not the result of Big 

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Ridge’s unwarrantable failure, but its negligence was high. Order No. 8417566 will be amended 

to a citation issued pursuant to section 104(a) of the Act. Considering the vacating of the 

unwarrantable failure charge and the reduction in the number of persons affected, as well as the 

factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $3,000.00. 

Order No. 8417568 alleged that Big Ridge violated the combustible accumulations 

standard, that the violation was reasonably likely to result in a lost work days or restricted duty 

injury, that the violation was S&S, that one person was affected, that the operator’s negligence 

was high, and that the violation was the result of Big Ridge’s unwarrantable failure to comply 

with the mandatory standard. A civil penalty, in the amount of $11,597.00 was assessed for this 

violation. Big Ridge was found to have violated the standard, and that the violation was the 

result of its high negligence and unwarrantable failure. However, it was found that the violation 

was unlikely to result in a lost work days or restricted duty injury to one person. Considering 

the reduction in the level of gravity, and the factors enumerated in section 110(i) of the Act, I 

impose a penalty in the amount of $9,000.00. 

The settled violation 

As evidenced by Joint Exhibit 2, the parties agreed to settle one of the violations at issue. 

It is proposed that Order No. 8417760 be modified to a citation issued pursuant to section 104(a) 

of the Act, at High Negligence, and that the proposed penalty be reduced from $4,000.00 to 

$3,200.00. I have considered the representations and evidence submitted and conclude that the 

proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act. 

Accordingly, the proposed settlement is approved and Respondent will be ordered to pay a 

penalty of $3,200.00 for the settled violation. 

ORDER 

Order No. 8417568 is AFFIRMED as modified. Order Nos. 8418235, 8417566 and 

8417568 are modified to citations issued pursuant to section 104(a) of the Act, and are 

AFFIRMED, as modified. 

It is FURTHER ORDERED that within 45 days Respondent pay civil penalties in the 

total amount of $17,200.00 ($14,000.00 for the contested violations and $3,200.00 for the settled 

violation). 

/s/ Michael E. Zielinski 

Michael E. Zielinski 

Senior Administrative Law Judge 

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Distribution (Certified Mail): 

Tyler McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, CO 80202-5710 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 

Pittsburgh, PA 15222 

34 FMSHRC Page 145

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 875 GREENTREE ROAD
 

7 PARKWAY CENTER, SUITE 290
 

PITTSBURGH, PA 15220
 

TELEPHONE: (412)920-7240
 

FAX:(412)928-8689 

January 5, 2011 

NEWMONT USA LIMITED, : CONTEST PROCEEDING 

Contestant, :

 : Docket No. WEST 2010-652-RM 

v. : Order No. 6482848; 01/26/2010 

:

SECRETARY OF LABOR :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Mine ID: 26-02314 

Respondent. : Mine: Midas Mine 

:

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEST 2010-1584-M 

Petitioner, : A.C. No. 26-02314-224579 

:

v. :

 :

NEWMONT USA LIMITED, :

 Respondent. : Mine: Midas Mine 

DECISION 

Appearances:	 Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 

90 7th Street, Suite 3-700, San Francisco, CA , for the Secretary of Labor 

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite 

2150, Denver, CO, for Respondent 

STATEMENT OF THE CASE 

This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This matter concerns an alleged 

violation of the mandatory safety standard 30 C.F.R. § 57.8528. Order No. 6482848 was served 

on Newmont USA Limited (“Respondent” or “Newmont”) on January 26, 2010. The alleged 

violation was found to be significant and substantial in nature, as well as an unwarrantable 

failure to comply with a mandatory safety standard. A hearing was held in Reno, Nevada on 

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September 26, 2011, and the parties participated fully therein. They later submitted post-hearing 

briefs. 

STIPULATIONS AT HEARING 

Prior to hearing, the parties stipulated to the following: 

1. Newmont is engaged in mining operations in the United States and its 

mining operations affect interstate commerce. 

2. Newmont is the owner/operator of the Midas Mine, MSHA ID No. 26-

02314. 

3. Newmont is subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977, 30 USC § 801 et seq. 

4. The Administrative Law Judge has jurisdiction in this matter. 

5. Order No. 6482848 was properly served by a duly authorized 

representative of the Secretary upon an agent of Newmont on the dates and 

places therein, and may be admitted into evidence for the purpose of 

establishing its issuance. 

6.	 The exhibits to be offered by Newmont and the Secretary are stipulated to 

be authentic with the exceptions of Respondent’s exhibits 6, 9, 10, 14, 16 

and 17. 

7.	 The operator demonstrated good faith in abating the violation cited in 

Order No. 6482848. 

8.	 The assessed penalty, if affirmed, will not impair Newmont’s ability to 

remain in business. 

9.	 Shon Guardipee, a former Mine Health and Safety inspector, wrote Order 

No. 6482848, which is the subject of this case. Mr. Guardipee lives in 

Idaho. The parties have agreed to present Mr. Guardipee’s evidentiary 

deposition testimony in its entirety at the hearing, subject to objections 

made at the deposition. 

10. Midas Mine is an underground gold mine operated by Newmont in 

Northern Nevada. 

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11.	 The alleged violation occurred at the North and South headings at the 5301 

level of Spiral 1 at Midas Mine, which Midas refers to as 1-5301N and 1-5301S. 

12.	 At the time of the MSHA inspection on January 26, 2010: 

a.	 The ventilation bag that directs air into the 1-5301 South heading at 

Midas Mine was tied off. 

b.	 Signs stating “Danger Heading Inspection Required” were posted at 

the 1-5301 North and 1-5301 South headings. 

c.	 Rope barriers were hanging across the 1-5301 North and 1-5301 

South headings. 

SUMMARY OF THE TESTIMONY 

Shon Guardipee (“Guardipee”) is a former inspector who worked for MSHA in its Elko, 

Nevada field office from December 2008 until April 2010. Depo Tr. 14, 18, 24.1 Prior to 

working for MSHA, he had four to five years of experience and was involved in the mine rescue 

competitions. Depo Tr. 12, 13. After leaving MSHA, Guardipee went back to mining with a 

contractor at the Buckhorn Mine out of Republic Washington. Depo Tr. 18. He left MSHA 

because he was not particularly fond of the way business was conducted, and he was informed 

that his citation count was too low, and he would be fired if he did not increase it. Depo Tr. 92. 

Guardipee began his regular inspection of the Midas Mine on January 26, 2010 at the top 

of Spiral 1 with an employee of Respondent named Ivan Castelanos and Jamie Wolicki, Miner 

Representative. Depo Tr. 29, 41. As he approached the 5301 heading, which was the access off 

of the main haulage, he checked the area for loose ground and observed that the sill fan at the 

5301 level was off. Depo Tr. 35. This observation was based on the fact that the fans are very 

loud and there was a distinct lack of noise2

, as well as the fact that the ventilation bags were not 

pressurized. Depo Tr. 35, 36. As he moved in to inspect the 5301 South heading, he noticed that 

the ventilation bags were tied off, turned around and noticed that the others had not followed him 

into the headings. Depo Tr. 40,41. The fans remained off throughout the entire time of the 

inspection. Depo Tr. 42. 

1

 “Depo Tr.” refers to the transcript taken during Guardipee’s evidentiary deposition. 

Because Guardipee now lives in Idaho, the parties stipulated to entering his deposition testimony 

in its entirety, subject to objections made during the deposition. 

2

 Guardipee estimated that the fans run at about eighty decibels. Depo Tr. 93. This is 

about the decibel level of a lawn mower. 

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When Guardipee questioned the others in the inspection party, they informed him that the 

headings had been inactive for a week and a half. Depo Tr. 42; Ex. A, pg 63

. In his recollection, 

the ventilation bags4 were tied off fairly close to the entrance of the heading. Depo Tr. 42. 

There were signs hanging by a rope or chain at the headings stating, “Danger, Heading 

Inspection Required.” Depo Tr. 46, 51, 52; Ex. A, pg 6. 

On January 26, 2010, from the information observed during his inspection, Guardipee 

wrote Order No. 6482848, citing a violation of 30 C.F.R. § 57.85285, stating: 

At the 1-5301 North and South headings the ventilation fan was off. The 

headings have been inactive for a week and a half. The headings were not 

barricaded or signed stating the nature of the hazard. The area is readily 

accessible. If a miner were to enter the heading fatal injuries could occur from 

lack of oxygen or high concentration of toxic gasses. Management engaged in 

aggravated conduct constituting more than ordinary negligence in that they were 

aware of the heading being inactive and did not take the appropriate actions to 

prevent inadvertent entry by miners. This violation is an unwarrantable failure to 

comply with a mandatory standard. Depo Tr. 55; Ex. 1. 

Guardipee designated the Order as reasonably likely to result in a fatal injury. Ex. F, pg 

1. He based this decision on the fact that the ventilation was off and, if the atmosphere was 

either toxic or lacking in oxygen, a miner entering the heading could sustain a fatal injury. Ex. 

F., pg 1 Finally, he designated the Order as high negligence on the part of the operator because 

Respondent had previously been cited and talked to about this behavior during inspections and 

the shifter, who was an agent of Respondent, was aware that the heading was inactive and 

unventilated and did nothing to correct it.6 Depo Tr. 85, 86; Tr. 58; Ex. F, pg 1; Ex. GGG. This 

Order was terminated when Respondent barricaded the headings with a chain link fence bolted to 

the ribs and put up a sign that read “Danger, Inactive Heading” and underneath, Respondent 

included the words “inactive heading.” Depo Tr. 59; Ex. F, pg 3. 

3

 At the hearing, the Secretary’s exhibits were entered as letters and Respondent’s 

exhibits were entered as numbers. 

4

 Ventilation bags are nylon structures used to direct air flow to the working face in order 

to sweep the face and insure that proper ventilation is supplied to that area. Tr. 30. When one 

ventilation bag is tied off, it provides more air to the other ventilation bags. Tr. 32. 

5

 Guardipee first cited the violation under 30 C.F.R. § 57.20011, but this was later 

modified to the section cited above on February 5, 2010. Depo Tr. 63; Ex. F, pg 2. 

6

 See Citation No. 6482937 issued on October 14, 2009; Citation No. 6488534 issued on 

October 20, 2009; Citation No. 6482944 issued on October 22, 2009; Citation No. 6488537 

issued on October 20, 2009; and Citation Nos. 6488539 and 6488541 issued on October 21, 

2009. Ex. Q; Ex. W, pg 1; Ex. CC, pg 1; Ex. GG; Ex. JJ, pg 1; Ex. MM, pg 1. 

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Guardipee explained that it appeared that the air in Respondent’s Midas Mine comes up 

from the bottom of the ramp, all the way to the top of the spiral and then moves into the main 

haulage. Depo Tr. 67, 68. During his inspection, Guardipee took gas readings at the 5351 North 

heading and did not find any noxious gas or lack of oxygen. Depo Tr. 69. However, he 

explained that the failure to have a chain link fence barricade to prevent access to an 

unventilated heading could result in miners accessing bad air. Depo Tr. 70, 71. He also 

acknowledged that it is common practice for a ventilation bag to be tied off to provide more air 

to the working face, but, in his experience, barricades in other mines were typically snow fences 

and rib-to-rib signage that expresses that there is no ventilation or the ventilation has been 

withdrawn. Depo Tr. 74, 75. 

When asked about the ventilation of these particular headings, Guardipee could not 

specifically rule out that some natural ventilation would migrate to the headings. Depo Tr. 79, 

80. He stated that the area cited was ninety degrees in two directions off of the spiral and 

referred to the area, instead, as a dead heading. Depo Tr. 79. However, he admitted that he was 

not an engineer qualified to determine how far the air coursing through the spiral would extend 

into those areas without any further ventilation. Depo Tr. 106. 

When questioned as to his confidence in his penalty designations, Guardipee stated that 

as a trainee he had been somewhat involved in a similar situation at the Barrick Meikle Mine 

where, he believed, the sign was hanging from a rope and did not meet the definition of 

“barricaded,” which would prevent the passage of persons, vehicles, or flying materials. Depo 

Tr. 83, 84. Here, one miner entered an unventilated area and lost consciousness. Depo Tr. 107. 

Another miner attempted to save him and either lost consciousness or became very disoriented. 

Depo Tr. 107, 108. It took a third man to turn on the ventilation fans to get the other two to 

safety. Depo Tr. 108. 

Kevin Hirsch (“Hirsch”) has been working for MSHA since 2002 and has been the 

Assistant District Manager for the Western District for the last two and a half years. Tr. 15,16.7 

His job duties include reviewing citations, orders and reports, specifically when these involve 

unwarrantable failures, knowing and willful violations, and special assessments to insure that 

they are properly cited and issued. Tr. 19, 61. 

Hirsch testified that mines need to be ventilated to insure that oxygen remains at the 

appropriate levels above nineteen and a half percent. Tr. 27. Gases, such as carbon monoxide, 

dioxygen and sulfur dioxide, can occur naturally within a mine, but can also be produced 

through the usage of equipment or blasting. Tr. 27. To keep these gases at acceptable levels, 

mine operators must create and submit ventilation plans that must then be reviewed by MSHA 

prior to operation. Tr. 27,28, 116. Under cross-examination, Hirsch acknowledged the gas 

readings taken in the 1-5301 North and South headings indicated that there was no lack of 

7

 Tr. refers to the transcript of the hearing in before the undersigned in Reno, NV on 

September 26, 2011. 

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oxygen or accumulation of gases. Tr. 63, 64, 65. He further stated that environmental methods 

of ventilation exist and, depending upon several factors, including whether the heading was near 

enough to the vent raise, air could have naturally been traveling to the heading. Tr. 66, 69, 70. 

He admitted that air would travel through the ventilation bags even if the auxiliary fan was off, 

but he had never, in his experience, seen a ventilation bag fully inflated without the fan running. 

Tr. 86. However, he also testified that he would not enter the heading without the auxiliary fan 

operating. Tr. 66. 

Hirsch further testified that he had read Guardipee’s notes and acknowledge that they 

indicated that the fan was off. Tr. 34. In his experience, he would not accept a sign stating 

“Danger, heading inspection required” as meeting the requirements of the regulation because a 

typical miner would walk in and inspect items that he could see. Tr. 34, 59. The problem is that 

the lack of oxygen or existence of bad gas is not something that can be seen, and it is not normal 

practice for Midas miners to use gas monitors in order to perform heading inspections. Tr. 34, 

35, 59. He would want a sign that states “Unventilated area” to indicate that miners need gas 

monitors to determine whether there is adequate oxygen. Tr. 35. Under cross-examination, he 

did acknowledge that the Midas Mine does not naturally emit sulfur dioxide, dioxide, carbon 

monoxide or the lower explosive limits of any other gas. Tr. 114. However, he also testified 

that a violation of § 75.8528 can exist even when oxygen levels are adequate because the oxygen 

levels may not be adequate in the future. Tr. 119. 

After the accident described by Guardipee at the Meikle Mine, a meeting was held at the 

Fire Science Academy outside of Elko, NV in June 2009. Tr. 40. The purpose of the meeting 

was to discuss ground control, but the focus turned to barricades because of the two miners that 

had been overcome by lack of oxygen. Tr. 41, 117. Representatives for MSHA read the 

definition of “barricade” and discussed the minimum requirements to meet the regulation to all 

operator representatives that were present. Tr. 43,44. Tim Burns and Mark Ward both attended 

this meeting for Respondent. Tr. 41. After this meeting, Respondent was cited several times for 

violations of 30 C.F.R. § 57.8528. Tr. 48, 59, 60; See FN 6. 

Hirsch was also somewhat involved in the investigation of the incident at the Meikle 

Mine, although he was not present at the mine. Tr. 76. He acknowledged that there was some 

form of barricade in this mine and the miners went through it intentionally before being 

overcome by lack of oxygen. Tr. 76, 77. In his view, the barricade here would not have been 

adequate under the regulations because it did not extend from rib to rib. Tr. 77. The result of 

this accident is that although the miners had to go to the hospital, they did not end up missing 

any workdays due to the injuries they sustained. Tr. 80. 

Jack Stull (“Stull”) is a mine inspector in the Elko, Nevada field office with three years 

of experience. Tr. 126. Prior to his employment with MSHA, he worked at the Goldstrike Mine 

in northeast Nevada for approximately fourteen years. Tr. 126. He inspected the Midas Mine 

for the first time in October 2009 as part of a general inspection and was accompanied by 

Inspector Gerald Killion and Respondent’s Health and Safety Specialist, Sandy McFarland 

(“McFarland”). Tr. 128, 139. 

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During the inspection on October 15, 2009, Stull observed and took pictures8

 to verify 

that the ventilation bags had been disconnected and were hanging from the back.9 Tr. 131. 

Because the bags were not inflated, Stull concluded that the area was not ventilated. Tr. 143. 

Based on this observation, he issued a citation to Respondent under 30 C.F.R. § 57.8528. Tr. 

131. During his testimony, Stull stated that, although there was a berm in place from rib to rib, 

the citation was issued because Respondent had no sign posted against entry. Tr. 135, 136. The 

gas reading at the entrance of the heading showed adequate levels of oxygen, but Stull would not 

traverse further into the heading because he “did not want to put himself in danger.” Tr. 135. 

Later, Respondent was issued a citation under the same code section because, although it had 

posted a sign against entry, it had only placed a chain across the heading, which Stull stated did 

not meet the definition of “barricade” as contemplated by the statute.10 Tr. 143, 144, 146. He 

then explained what MSHA would accept as a barricade. Tr. 146. 

When Stull issued Citation No. 6488539 on October 20, 2010, he observed that the 

ventilation bag was tied off and damaged, there was a sign stating “Danger, heading inspection 

required” and only a small piece of rope was used to barricade the heading. Tr. 148, 149. On 

cross examination, Stull recognized that he does not know the Midas Mine’s procedure for 

conducting a heading inspection. Tr. 170. Because Respondent was already on the D series11, 

Stull decided then to speak directly to his supervisor, Jim Fitch (“Fitch”), as well as the Safety 

Specialist for the Western District, Rod Gust, to ensure that the information that he was giving to 

Respondent was correct. Tr. 151 - 153. They confirmed that Stull was correct and Fitch met 

Stull at the Midas Mine the next day to discuss the appropriate measures to be taken, given the 

definitions under 30 C.F.R. § 57.8528. Tr. 154, 155. Upon completing the inspection, Stull 

found one other violation of the standard. Tr. 159. 

On cross-examination, Stull acknowledged that, while snow fencing would impede a 

person attempting to enter a heading, it would not stop him if he intended to do so. Tr. 165. He 

testified that a rope would possibly impede a person as well. Tr. 165. In training, he was not 

given the definition of “unventilated;” rather, he was trained to look for the conditions that 

would lead to an area being unventilated - fans turned off, ventilation bags down or damaged, 

8

 The quality of the pictures was poor, at best. I give them little probative value, 

therefore, placing most of the probative weight on Stull’s testimony. 

9

 The “back” refers to the roof of the top. Tr. 131. 

10 At this point, Stull testifies that McFarland became agitated and began to swear at him 

saying that he was not going to put a barrier up in all the headings that are going to be mined 

soon. Tr. 145, 146; Ex. K, pg 15 (confirms professionalism discussion). Stull replied that he 

would cite each heading that was not properly barricaded. Tr. 146. 

11 Once an operator is placed on the D series, it must survive an entire inspection without 

any citations or orders written under 104(d) to be released from it. Tr. 152. 

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etc. Tr. 166. If the auxiliary fan was off and/or the ventilation bags were tied off, the area was 

unventilated in his opinion. Tr. 166. 

When asked about the ventilation plan in place at the Midas Mine, Stull stated that, 

although he was never involved in making such a plan, he had a reasonable understanding of it. 

Tr. 181, 182. He testified that Respondent uses a main fan that pulls air from the surface to the 

underground and boosters or auxiliary fans are used to move that air into the headings and 

laterals. Tr. 182. The reused air then goes out the ventilation or drift. Tr. 182. Although a 

smoke tube can be used to determine whether there is air circulation, Stull did not use this 

equipment during his inspection and, therefore, could not determine the quantity of air that was 

moving through the mine. Tr. 183, 184. 

Sid Tolbert (“Tolbert”) has been the Mine Supervisor at the Midas Mine for 

approximately three years and was the supervisor at the time that the Citation was issued in 

January 2010. Tr. 209. In his professional capacity, he is responsible for the health and safety of 

all personnel, including those underground, and was actually a miner at the Midas Mine prior to 

2004, working in mine development. Tr. 210. 

Tolbert testified that the citation as issue here was written in a development area. Tr. 

213. During the development process, miners drill holes in the area to be excavated with a rock 

drill, load the holes with explosives and blast the rock into a muck pile. Tr. 213, 214. The rock 

is then removed by a front end loader, ground supports consisting of friction bolts and wire are 

added and then miners finish mucking out the area. Tr. 214. 

Tolbert explained that a vent raise is used to bring fresh air into the active sill headings 

for the purposes of ventilation. Tr. 216. An auxiliary fan was also permanently located in the 1-

5301 headings in the bulkhead, which is structure made out of concrete and wire mesh to seal off 

the area and make it airtight. Tr. 217. It is turned on by pushing a button in the electrical power 

box. Tr. 217. If the box malfunctions, the electricians are called down to fix it. Tr. 217, 218. 

As for the geology of the mine, Tolbert testified that there are three basic types of rock 

within the mine. Tr. 218. “Tuffs” are basically waste development that are formed by volcanic 

eruption when the ash shoots into the air, comes down and layers upon itself. Tr. 218. “Mafic 

flows” are basically lava flows that slow into cracks that run horizontally. Tr. 219. Finally, 

“intrusive flows” occur where the rock cracked open and allowed either lava or mineralized 

veins to form. Tr. 219. According to Tolbert, the mine does not have the rock strata to cause an 

oxygen deficiency and these geological formations do not emit sulphur dioxide, nitrogen 

dioxide, carbon monoxide or the lower explosive limit of any other gas.12 Tr. 219. However, he 

12 These observations are somewhat less persuasive because Tolbert has no formal 

geological training. Tr. 256. It follows, then, that his knowledge is based only on experience at 

the mine. 

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does acknowledge that manmade contaminants exist in the mine, such as carbon monoxide from 

the blasting and diesel engines as well as nitrogen dioxide from the blasting. Tr. 255. 

Tolbert further testified to the specifics of the ventilation system at the Midas Mine by 

stating that the mine uses both primary and auxiliary ventilation. Tr. 220, 221. The primary 

ventilation had two intakes at the time and the portal was for negative flow. Tr. 221. The deep 

raise vent consisted of two 350 horsepower fans sitting on the surface pushing approximately 

half a million cubic feet of air per minute (“CFM”) down into the bottom of the mine and 

dumping it out at the Five Haulage. Tr. 221, 222; Ex. B. As it is pushed down, the air is sucked 

up a second vent raise by the auxiliary fan and the main North Vent Raise fan, splitting the air 

that was originally pushed down. Tr. 223. Of this split air, approximately 100,000 CFMs comes 

up the Three Spiral and approximate 151,000 CFMs go up Four Spiral. Tr. 223; Ex B. This air 

is then dumped back into the Five Haulage, where it works its way up the Five Spiral, comes 

down the 5450 Haulage and is exhausted back into the atmosphere by the North Vent Raise. Tr. 

223, 224; Ex. B. The South Vent Raise exhausts approximately 331,000 CFM and about 

110,000 of this came from Spiral one at issue here, which is primarily ventilated through the 

portal ventilation. Tr. 225; Ex B. 

Tolbert testified that the secondary ventilation consisted of a 125 horsepower fan located 

at the bottom the ventilation raise. Tr. 226; Ex B. It is bulkheaded off and sealed so that it 

cannot recirculate as it pushes about 100,000 CFMs up the raise. Tr. 226. Several auxiliary fans 

draw the air out of the raise and direct into the development drifts in the sill headings through the 

use of ventilation bags. Tr. 226, 227. In his opinion, there would be ventilation whether the 

auxiliary fans were running or not because pressurization of the vent raise will push air into the 

openings.13 Tr. 226, 227, 236, 241. He, however, acknowledged that, when miners are working 

in the drifts, the auxiliary fans are typically on. Tr. 227. This is insured through the five-point 

heading inspection that is required before any work can commence in an area. Tr. 227; Ex 7. 

New miners to the Midas Mine are trained during a four-week class to understand what the lay 

of the mine, the five-point inspection, and what they are looking for during this inspection. Tr. 

228. 

During the five-point inspection, Tolbert explained that a miner14 would start right off the 

spiral and would look at the intersection to check for loose ground, damaged wire, damaged 

ground support or other hazards. Tr. 229. As he got closer to the intersection of the sill 

headings, he would start looking at ventilation, checking the utilities, such as ventilation bags, 

13 Tolbert testified that a test was conducted on the ventilation system during a power 

outage. Tr. 242. Ventilation engineers were instructed to check all of the main haulages, 

exhausts and intakes within the mine for air flow, both quality and quantity. Tr. 242. According 

to Tolbert, there were no problems with the air quality. Tr. 242. 

14 Although Tolbert states that an “experienced miner” must conduct the heading 

inspection, there is no explanation of what experience is required. Tr. 257. 

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and making sure that the fan is on and operable. Tr. 229-231. If the fan was off on arrival, he 

would start it before he proceeded any further than the starter box. Tr. 230. Once any hazards 

were corrected, he would remove the barricade and take down the sign. Tr. 230. Prior to 

October 2009, the Midas Mine had always used a rope that stretched from rib to rib and metal 

sign that stated, “Danger, heading inspection required.” Tr. 231. Miners were taught that this 

meant that a heading inspection was to be done before work commenced and any hazards or 

deficiencies were to be corrected. Tr. 231, 232. If any of these could not be corrected, the 

miners were to call their shift foreman for help. Tr. 232. There is no procedure at the Midas 

Mine for when headings must be tested for has levels. Tr. 257. Although it is not common, 

miners have been disciplines or fired for failing to perform adequate heading inspections. Tr. 

233. 

After the inspections in 2009, Mark Ward (“Ward”), mine manager for the Midas Mine, 

sent out a memorandum stating that Tolbert needed to give direction to the supervisors as to how 

to barricade and what types of headings needed to be barricaded. Tr. 237, 238, 280. Tolbert 

admitted that after the inspection, he was not clear on what needed to be barricaded because it 

had not been an issue prior to this inspection. Tr. 238. However, after receiving the citations, he 

suggested to Respondent’s personnel that snow fence needed to be attached at all four corners, 

top and bottom. Tr. 252. Tolbert later developed a standard operating procedure, but it was not 

presented to the miners and, later, Tolbert testified that Respondent was actually complemented 

on its barricading procedures by another miner; although, Tolbert was not present to hear this 

complement. Tr. 239, 240, 248. During cross examination, Tolbert agreed that snow fencing 

and chain link fencing were used in some instances in the mine and that, at least for the snow 

fence, the installation is done through the use of a handheld drill and takes less than thirty 

minutes to finish. Tr. 249, 251. 

Under cross examination, Tolbert explained that a crew consisted of twenty-five to thirty 

men. Tr. 245. One foreman per crew carries an air quality monitor, but the miners on the crew 

do not carry them. Tr. 245. Further, the air quality monitors are kept on the surface. Tr. 245. 

So, should a miner get underground and realize that he needs a monitor, he must either walk 

back up to the surface or call to have someone bring it down to him. Tr. 245, 246. He also 

testified that, although miners are supposed to verify that air from the vent bag is sweeping the 

face, no smoke tubes or anemometers are used to ensure that this is the case. Tr. 255. He stated 

that although air would travel to a heading without the use of an auxiliary fan and with the 

ventilation bag tied off, the air would not sweep the face. Tr. 271. Enough air would migrate 

through the heading to dilute gases though. Tr. 273. 

While the members of any crew who work for the mine are required to take the fourweek training session, Tolbert acknowledged that subcontractors do not have to take this training 

session. Tr. 247. He stated that he is further aware of instances in the last three years where 

miners have failed to complete heading inspections and maintain ventilation bags. Tr. 247. 

As previously stated, Mark Ward is the Mine Manager for Respondent’s Midas Mine and 

has held this position for a little over four years. Tr. 280. Prior to this, he was the mine manager 

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at Respondent’s Carlin operations for about ten years. Tr. 281. In total, he has worked in the 

mining industry for over twenty-five years and graduated from South Dakota School of Mines 

and Technology where received his Bachelor of Science degree in Mining Engineering. Tr. 281, 

282. However, except for three months in 1981, all of his experience prior to the Midas Mine 

had been in surface mines. Tr. 302. His primary duties at the Midas Mine are to maintain safe 

and cost effective production. Tr. 282. 

Ward is further involved in forecasting, which is the updating of the mining and 

development production plan and determining all the operating and capital costs associated with 

operations for the life of the mine. Tr. 282, 283. This is then used as a business model for the 

operator and leads to a sequence of development and production. Tr. 283. However, mining is a 

fairly dynamic environment, so things can change from quarter to quarter. Tr. 283. The map he 

creates is color-coded to signify periods of time when activity is going to take place. Tr. 283, 

284; Ex 17. 

Ward testified that the process of developing an area is a very complicated process that 

takes a long time from drilling into development and ultimately into production based upon 

economics; and it requires several stages. Tr. 286. Initially, Respondent uses drill holes to drill 

a two-inch core through the vein to determine where it is located, its thickness and to obtain 

assay results on the gold and silver content. Tr. 287, 288. From these results, geologists build a 

geological wire frame model that shows in space based upon the surveys and intercept where the 

intercept is located. Tr. 288. The model is then turned over to the modelers, who apply 

geostatistical analysis, break the model down into twenty-five foot long by twenty-five foot wide 

blocks that are the thickness of the vein intercept and use the assay results to assign a metal 

value to the block. Tr. 288. Depending upon where the operator is at in the process, 

development could take several weeks or up to a year. Tr. 288. 

During the time of development, people are required to access the development heading, 

like heading 5301 at issue, in order to collect information, such as channel samples for metal 

analysis. Tr. 288, 289. This, in turn, can drastically effect the development plan as more 

knowledge of the value of the core is determined, such as in 5301 which was developed much 

different than what was conceptualized the year prior to its development. Tr. 303, 304. In his 

opinion, Ward would label this area as an active area that is not a working area because there 

may not be someone assigned to that area that day or for the week. Tr. 289. However, he 

explained that Respondent would be aware that someone needed to enter the area sometime 

before it had to be done. Tr. 289. 

Ward mirrored the testimony of Tolbert that a five-point safety inspection must be 

conducted prior to work being conducted in the area and that there are rigorous training 

requirements for new miners. Tr. 290. He further stated shifters visit working places once at 

shift at a minimum and they normally carry gas detection devices with them. Tr. 291. However, 

he further testified that this mines does not naturally produce gas so oxygen deficiency is not a 

problem in this mine and he relies on the mineralogy of the rock and history of the mine to make 

these statements. Tr. 291. 

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Ward testified that he attended the meeting at the Fire Science Academy in Elko, NV in 

June 2009. Tr. 292. He recalled that a PowerPoint presentation was shown concerning the 

industry trends on injuries, but does not recall that any other topics were discussed at length. Tr. 

292, 293. He further cannot recall ever having seen any policy guidance that is written with 

respect to the application of 30 C.F.R. § 57.8528 and, in his opinion, unventilated means that 

there is a lack of oxygen. Tr. 293. He does not agree that the fact that an auxiliary fan was off 

means that the area is unventilated because the fan can easily be turned on and, in any event, air 

migrates into the headings even when the fan is not turned on. Tr. 293, 294. In the event that a 

gas producing event is occurring, such as blasting, the area is barricaded for a minimum of thirty 

minutes and the area is blocked by mine employees so that no one can enter. Tr. 294. 

Ward recognized that rope barricades and signage stating “Danger, heading inspection 

required” was not in compliance around October 2009, when the mine was issued a number of 

citations. Tr. 294, 295. In response to this, Ward drafted a policy document relating to active 

versus short term inactive versus long term inactive headings to give the miners some guidance 

in what type of barricade and signage would be required in different situation to avoid future 

citations. Tr. 295, 296. Chain link fence was to be used to barricade long term inactive 

headings, snow fence was to be used on short term active headings and rope barriers were to be 

used on active headings, which included headings that were scheduled for production or 

development in the following four weeks where the ventilation bags had been tied off. Tr. 306-

308. To this end, he stated that it is not practical to install snow fencing every time a heading is 

unproductive for a period of time because it could be inactive for a very short period of time, 

such as a week, and there is some flexibility in the mining plan. Tr. 297. 

Ward testified that all of the previous citations issued to Respondent under the code 

section at issue here had been settled. Tr. 312. These citations had ranged in penalty from 

$128.00 to $285.00. Tr. 313. The assessed penalty for Citation No. 6482848 is $35,000.00. Tr. 

313. Ward stated that it was an economic decision to contest this citation. Tr. 313. 

Ivan Castellanos (“Castellanos”) is General Foreman at Respondent’s Midas Mine and 

has been with Respondent for thirteen years. Tr. 316. Prior to this, he worked at Turquoise 

Ridge and the Miekle Mine belonging to Barrick Goldstrike. Tr. 316. Before his position as 

General Foreman, Castellanos was a lead man or active shifter. Tr. 316. His responsibilities 

include enforcing all policies in order to ensure that everyone gets home safely at the end of the 

day. Tr. 316. 

Castellanos was present during the inspection on January 26, 2010. Tr. 319. He testified 

that when he arrived at the 5301 elevation, the auxiliary fan was turned on, but he turned it off 

when he got to the crosscut because the inspector asked him what level they were on and he had 

to turn it off in order to talk to him. Tr. 319, 320. He stated that no one was working at the time 

of the inspection and he conducted the heading inspection that was required. Tr. 321. Both 

headings were roped of and posted with the exact same signage. Tr. 327. Castellanos testified 

that both he and Guardipee walked all the way to the face of the north heading and Guardipee’s 

gas meter did not alert them to any problems. Tr. 322. He further corroborated Guardipee’s 

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testimony that he did not follow him into the south heading because there was a hazard and he 

held his men back. Tr. 322. He did not witness Guardipee taking any air quality samples and his 

gas meter did not alert them to any problems in the heading. Tr. 322, 323. Although he did not 

follow Guardipee into the south heading, he was not concerned that the air quality was bad in the 

heading. Tr. 328. He stated that he simply didn’t want to go against company policy. Tr. 328. 

In the course of his employment, Castellanos has only had his gas monitor go off when 

he was following a truck too closely and the carbon monoxide alarm went off. Tr. 325. He has 

never had it go off without the presence of running equipment, however. Tr. 325. In his position 

as foreman, he visits the crews during their work shifts at least once a day. Tr. 325, 326. If a fan 

happens to go down, he typically gets in touch with the electricians, tags the fan out and pulls the 

miners out of the heading until the fan is replaced. Tr. 326. 

The final witness, Lennon Van Kirk (“Van Kirk”) is an underground miner, tech five and 

lead man at the Midas Mine and has been with Respondent for approximately six years. Tr. 329. 

One of his responsibilities is to conduct five-point inspections prior to working in a heading. Tr. 

329, 330. He testified that ground control and ventilation are the two most important parts of the 

inspection. Tr. 330. During the ventilation inspection, he inspects the condition of the vent 

tubing, fan controls and ventilation bags. Tr. 330. 

He testified that the auxiliary fan could be turned off for a number of reasons. Tr. 330. 

One reason would be during a blast, which create so much pressure coming out that it would 

blow the ventilation bag to the ground. Tr. 331. Another reason for turning the fan off is to talk 

on the phone. Tr. 331. The fans that are so loud that they must be turned off in order to have a 

conversation in the crosscut. Tr. 331. Finally, he stated that the fans would be turned off in 

order to repair or install ventilation bags. Tr. 331. He stated that it would not be practical to 

erect a barricade every time a fan was turned off because it would be very time-consuming and, 

in his opinion, is not necessary. Tr. 331. 

Van Kirk acknowledged that Respondent does use signs that say “unventilated area.” Tr. 

331. He testified that these signs are typically used when the ventilation infrastructure, such as 

the control box or fan, has been removed and it is an inactive area, but this would not be used in 

a scenario where the fan is simply turned off. Tr. 331, 332. He confirmed that an auxiliary fan 

and ventilation bag would be located in every active heading, but stated that they would not 

always be present in heading that were short term inactive. Tr. 333. He testified that they may 

be absent for planning purposes or used in a different area of the mine if needed, but a snow 

fence would be erected with an “unventilated area” sign posted. Tr. 334. 

LAW AND REGULATIONS 

30 C.F.R. § 57.8528 states, “Unventilated areas shall be sealed, or barricaded and posted 

against entry.” 

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30 C.F.R. § 57.2 clarifies the meaning of “barricaded” as, “obstructed to prevent the 

passage of persons, vehicles or flying materials.” 

In interpreting the meaning of a statute, the Commission has recognized that “[w]hen the 

meaning of the language of a statute or regulation is plain, the statute or regulation must be 

interpreted according to its terms, the ordinary meaning of its words prevails and it cannot be 

expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 

1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle 

of statutory and regulatory interpretation that words that are not technical in nature “‘are to be 

given their usual, natural, plain, ordinary, and commonly understood meaning.”’ Western Fuels, 

11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 

552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the 

Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) 

(deference is considered “only when the plain meaning of the rule itself is doubtful or 

ambiguous”) (emphasis in original); Azno Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999). 

A violation is significant and substantial (“S&S”) “if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the Secretary must prove: “(1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a 

measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in 

question will be a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 

1984)(footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1998)(approving the 

Mathies criteria). The Commission has further found that “an inspector’s judgment is an 

important elements in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 

3 FMSHRC at 825-826). An evaluation of the reasonable likelihood of injury should be made 

assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985)(quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

In Emery Mining, the Commission determined that an unwarrantable failure is 

“aggravated conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec. 

1987). Unwarrantable failure is characterized by such as conduct as “reckless disregad,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. At 2003-

2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek 

Coal, Inc., 52 F.3d at 136 (approving the Commission’s unwarrantable failure test). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist, 

such as the length of time that the violation has existed, the extent of the violative condition, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

the operator’s efforts in abating the violative condition, whether the violation is obvious or poses 

34 FMSHRC Page 159

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a high degree of danger, and the operator’s knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 

FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest 

Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 

(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 

14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 

1998). 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. Consolidation Coal 

Co., 22 FMSHRC at 353. 

ISSUES 

Did Respondent violate 30 C.F.R. § 57.8528 so as to justify the issuance of Order No. 

6482484 pursuant to 30 U.S.C. § 104(d)(2) of the Act? 

CONTENTIONS OF THE PARTIES 

The Secretary contends that Respondent’s mere use of a rope with a sign stating “Danger, 

heading inspection required” in an inactive heading is a violation of 30 C.F.R. § 57.8528. This is 

based on the Secretary’s belief that these actions neither meet the definition of “barricade” found 

in 30 C.F.R. § 57.2 nor meet the requirements of a sign posted against entry as contemplated by 

the regulation. She further argues that this violation is significant and substantial because it 

could cause fatal accidents if miners were to be overcome by a lack of oxygen, especially in light 

of the accident that occurred in the Miekle Mine in 2009. Finally, she asserts that Respondent’s 

actions constitute an unwarrantable failure to comply with a mandatory standard because it had 

been cited several times in the past, but refused to change its behavior to comply with the 

regulation. 

Respondent first argues that 30 C.F.R. § 57.8528 is inapplicable because the headings at 

issue were not “unventilated areas.” It asserts that this is a non-gassy mine and, further, no work 

activity was taking place to create toxic gases. It further argues that the geology of the mine 

allows for the natural migration of air due to the main shaft fan running, causing air to sweep the 

faces of the headings. Second, it contends that the auxiliary fans and vent bags were in place and 

all that had to be done was to untie the vent bags in the South heading and turn on the fan if work 

was to be done in the cited area. Third, it argues that the rope barricade was sufficient because 

even a snow or chain link fence could not stop a miner from entering the area if he or she wanted 

to enter. Finally, it argues that the Secretary’s interpretation of the standard is unworkable, less 

safe, confusing and arbitrary and that it is inconsistent with MSHA’s regulatory history and 

scheme as a whole. 

DISCUSSION AND CONCLUSIONS 

1. S&S Designation 

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The undersigned concludes that this violation is S&S, but not an unwarrantable failure to 

comply with a mandatory safety standard. In first determining that the violation is S&S, the four 

criteria under Mathies must be examined. The first criterion of Mathies, a violation of a safety 

standard, is evident. 30 C.F.R. § 57.8528 explains that an unventilated area must be sealed or 

barricaded and posted against entry. Because the auxiliary fan was turned off and the ventilation 

bags were tied off, the undersigned concludes that the area was unventilated. Therefore, it 

should have been either sealed off or barricaded and posted against entry. 

The plain and unambiguous definition found in 30 C.F.R. § 57.2 states that a “barricade” 

must be sufficient to prevent vehicles, persons or flying materials. A single rope strung from ribto-rib is incapable of preventing any of the items listed in the definition from entering the 

heading. Further, the sign made no mention that entry was prohibited or that the area was 

unventilated. Instead, it stated only that a heading inspection was required. Since any 

“experienced” miner can perform the heading inspection and air quality tests are not mandatory, 

this signage is not sufficient. Tr. 257. Under this analysis, the violation of a safety standard is 

clear. 

Under the second criterion, a discrete safety hazard must be contributed to by the 

violation. By employing this insufficient method of “barricade” and signage, the employer is 

contributing to the chance that a miner will underestimate the level of danger, access the area 

and be overcome by noxious air or a lack of oxygen. 

The third criterion under Mathies requires that the hazard contributed to must be 

reasonably like to result in injury. The undersigned finds that the following facts contribute to 

the hazard: the inferior barricade of the heading, the signage stating only that a heading 

inspection was required, the auxiliary fan in the “off” position and the ventilation bags tied up to 

redirect airflow to working areas of the mine. The undersigned finds that this confluence of 

factors contributed to the hazard of miner being overcome by noxious air or a lack of oxygen and 

is reasonably likely to result in an injury. Although there is agreement that there are legitimate 

reasons for the ventilation bags being tied off, the Act demands that these areas be barricaded 

and posted against entry to avoid the possibility of a miner walking, whether intentionally or 

unintentionally, into an unventilated heading. 

In meeting the fourth criterion of the occurring injury being of a reasonably serious 

nature, it is clear that if a miner was receiving insufficient level of oxygen to the brain, serious 

injuries would reasonably likely occur. Commission precedent regards the dangers of low levels 

of oxygen as “well-known” and obvious. See Kelly Creek Resources, Inc., 19 FMSHRC 457, 

462 (Mar. 1997). 

In arguing that the injury is not reasonably likely to occur, Respondent states that 30 

C.F.R. § 57.8528 has been misapplied to its Midas Mine because, first, the mine is non-gassy 

and, second, the areas are ventilated whether the auxiliary fan is on or not due to the natural 

migration of air through the mine. The undersigned does recognize that the fact that a mine is 

non-gassy is a mitigating factor in determining whether a serious injury is reasonably likely to 

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occur. The mine itself may not emit gases; however, Respondent runs diesel and other 

equipment in the mine, which do emit combustible gases that can build up over time in 

unventilated areas. 

To illustrate its second argument, Respondent points to the gas readings taken by 

Guardipee during his inspection of the Midas Mine. Although Guardipee’s readings show 

sufficient oxygen and no measurable combustible gases, several facts and opinions weaken this 

argument. Depo. Tr. 69; Ex. A, pg 6. First, the Commission has acknowledged that the 

conditions in a mine can change unexpectedly. See Cumberland Coal Resources, LP, 28 

FMSHRC 545, 553 (Aug. 2006) Second, Guardipee explained that air moving through the spiral 

would have to enter the heading and then move ninety degrees in either direction to fully 

ventilate the heading and this is combined with the testimony of Tolbert who acknowledged that 

without the fans on, air would not sweep the face as required. Depo. Tr. 79; Tr. 271. Finally, in 

the event of an auxiliary fan going down in the middle of the shift, Castellanos testified that it is 

company policy to contact the electricians and pull the miners out of the heading until the 

problem is fixed. Tr. 326. This procedure tends to be drastic for areas that are ventilated 

anyway. While Respondent’s action in pulling the miners is certainly applauded, it does tend to 

weaken any argument that the area is, in fact, ventilated, and Respondent has offered no 

explanation as to why it pulls its employees out if those areas remain ventilated. As a further 

note, although Tolbert suggested that sufficient air could be circulated through tied off 

ventilation bags, the undersigned finds this explanation to be beyond reason. 

Moreover, Guardipee’s entrance into the heading is an exact situation where more 

descriptive signage is necessary. Guardipee was unaware that the area was not ventilated and 

easily bypassed the rope to enter the heading. Although Respondent requires its employees to 

undergo a rigorous training course on heading inspections and company policy regarding these 

inspections, subcontractors do not receive this luxury and may be inclined to do the same thing 

that Guardipee did should there be some need to cross the rope. Tr. 247. 

 Respondent also asserts that roping off the area is as sufficient as snow fencing or chain 

link fencing because none would stop somebody with the intent of crossing it from doing so. 

This argument falls flat and completely disregards the plain language and intent of the 

regulation. While it is true that any of these barricades would be unlikely to stop the miner 

absolutely determined to reach the other side of it, the simple rope is much less likely to stop 

anything from breaching it. Anything dropped could roll, bounce, etc., under or over it with 

little to no chance of it being stopped. A miner ducking under or stepping over the rope to 

retrieve the object would then be in a hazardous position. It is understood that company policy is 

not to enter the area, but it seems incomprehensible that Respondent could contend that no miner 

would violate this policy to quickly retrieve a lost item. Not only would a snow fence or chain 

link fence be more likely to stop the object, it would also give the miner pause before he 

heedlessly entered the unventilated area. For these reasons, the undersigned finds that a rope 

does not qualify as a “barricade” as contemplated by 30 C.F.R. § 57.2. In consideration of the 

foregoing, the undersigned finds that a violation of 30 C.F.R. § 57.8528 does exist and it was 

correctly designated as S&S. 

34 FMSHRC Page 162

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Respondent finally asserts that the Secretary’s definition of 30 C.F.R. § 57.8528 is 

unworkable, less safe, confusing and arbitrary. This is unpersuasive in that a very specific 

definition is given for the word “barricade.” Respondent cannot realistically argue that a single 

rope or chain is sufficient to stop people, vehicles or flying objects from entering the heading. It 

is further unclear how erecting a fence to prevent entrance is less safe than stringing a rope or 

chain and Respondent offers no explanation of this. Nor does it explain why is asserts that the 

Secretary’s plain language interpretation of the standard is arbitrary. In terms of the unworkable 

nature of erecting a fence, it has been recognized that some efficiency may have to be sacrificed 

in order to protect the safety of those working in the mine. See Plateau Resources Limited, 5 

FMSHRC 605, 607 (1983)(ALJ). Moreover, a time intrusion of less than forty minutes does not 

seem like such a substantial burden as to outweigh the life or safety of a miner. 

The undersigned does recognize that there is no further definition of the phrase “posted 

against entry” found in the regulatory text and this could lead to some confusion, but the plain 

meaning of the words lead to the conclusion that the sign should indicate that a miner should not 

enter the area. Although Respondent’s full time employees are trained to understand what is 

meant by “Danger, Heading Inspection Required,” subcontractors and inspectors do not have the 

luxury of this training. This, it seems, would lead to more confusion than blatantly stating “Do 

Not Enter.” The undersigned finds that the Secretary’s interpretation of the plain language of the 

statute is reasonable. 

2. Unwarrantable Failure 

In determining whether the unwarrantable failure designation, the undersigned must 

consider whether Respondent’s conduct was aggravated and consisting of more than ordinary 

negligence. Order No. 6482848 was the seventh violation of 30 C.F.R. § 57.8528 issued to 

Respondent since October 2009. Guardipee stated in his notes that he designated the Order as 

high negligence on the part of Respondent because, not only had the it been previously cited 

under the same regulation before, the accepted methods of barricading an unventilated heading 

had also previously been discussed with it. Depo. Tr. 85; Ex. F, pg. 1. As of the date of this 

hearing, Respondent had not changed its methods of barricading. Tr. 333. 

Respondent witness Tolbert testified that in light of the previous citations, it developed a 

policy for barricading in order to give the miners some guidance on the issue. Tr. 237, 238, 280. 

In its section entitled “active” headings, it defines an active heading as including those that are 

scheduled to be in production or development within four weeks. Ex. 17. To prevent entry, a 

rope with heading inspection sign attached to it are hung from the headings. Respondent 

testified that to actually barricade each of these headings would be inefficient, time-consuming 

and unnecessary. Tr. 334. However, witnesses for Respondent recognized that the erection of a 

barricade takes approximately thirty minutes and only a few minutes to take down. Tr. 249, 251.

 As noted above, efficiency cannot be weighed against the health and safety of a miner. See 

Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ). And, as the accident at the 

Meikle Mine illustrates, the barricading of unventilated headings is certainly not unnecessary. 

34 FMSHRC Page 163

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Respondent also argues that the auxiliary fans and vent bags were in place and all that 

had to be done was to untie the vent bags in the South heading and turn on the fan if work was to 

be done in the cited area, the undersigned finds this unpersuasive. While pushing a button to 

turn on the auxiliary fan is simple enough, a miner must then get equipment or a ladder in order 

to untie the ventilation bag. This amount of time spent in an unventilated heading could result in 

an injury to the miner. Because of this, this argument cannot be accepted. 

The undersigned is persuaded, however, by Respondent’s argument that it was not on 

notice of MSHA’s interpretation of the regulations. In it’s Post-Hearing Reply Brief, 

Respondent states that the Secretary argues that at the meeting in Elko, NV, Hirsch gave 

“operators specific guidance about what the Western District would accept as a barricade.” 

From this, it argues not that it did not understand what a barricade was, but, rather, when a 

barricade must be used. Based on its understanding of the guidance given, Respondent argues 

that it developed policies in order in an attempt to reduce the amount of citations issued under 30 

C.F.R. § 57.8528. Although Respondent had been previously cited under the standard, the 

undersigned finds that Respondent possessed a good faith belief that its policy of roping off 

headings that were to be worked in the near future complied with the regulations. Although the 

undersigned stresses that Respondent is now on notice, he does not find its conduct to be so 

aggravated and of such negligence to justify the Secretary’s finding of an unwarrantable failure. 

As a final assessment, the undersigned finds the testimony of Castellanos claiming that 

the auxiliary fan was in the on position, but he turned it off in order to be able to talk to 

Guardipee to be incredible. Although Respondent argues in its Post-Hearing Brief that this fact 

was corroborated by Guardipee, there is no evidence of that. Guardipee testified that the 

auxiliary fan was off when they approached the heading. Further, and telling, Castellanos’ 

testimony was the first time that this issue was ever raised by Respondent. It seems beyond 

comprehension that Respondent would be cited for actions taken in an attempt to promote the 

efficiency of the inspection and not raise that issue until the second to last witness at hearing. 

3. Penalty Assessment 

At hearing, Respondent witness Ward testified that all prior citations written under 30 

C.F.R. § 57.8528 were assessed between $128.00 and $285.00. Tr. 313. However, the penalty 

assessment for Order No. 6482848 is $35,000.00. In determining the appropriateness of the 

penalty assessed for this Order, I am bound by to consider the operator’s history of violations, 

the size of the operator in comparison to the penalty amount, the operator’s negligence, 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).15 

15 The Secretary and Respondent stipulated to the fact that Respondent demonstrated 

good faith in abating the violation and the penalty will not affect Respondent’s ability to remain 

in business. 

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Respondent has received six other citations under 30 C.F.R. § 57.8528 since October 14, 

2009. The seriousness of the injury that could result from miners entering an area of bad or 

insufficient oxygen is grave. However, in an attempt to reduce the number of citations issued 

under the standard, Respondent created company policies that it believed complied with the 

regulations. While the Secretary carried her burden in proving that the violation was significant 

and substantial, the undersigned found that she has not met her burden in proving an 

unwarrantable failure. Further, the undersigned finds that an increase in penalty from a previous 

maximum of $285.00 to $35,000.00 is excessive. In light of the finding that the Order is not an 

unwarrantable failure to comply with a mandatory safety standard, a more reasonable penalty is 

$5,000. 

ORDER 

It is hereby ORDERED that Order No. 6482848 is MODIFIED from a 104(d)(2) order 

to a 104(a) citation. It is further ORDERED that Respondent PAY the Secretary of Labor the 

sum of $5,000.00 within 30 days of this Decision.16 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-

700, San Francisco, CA 94103 

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

16 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

34 FMSHRC Page 165

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 9, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. KENT 2010-1239 

Petitioner : A.C. No. 15-02709-219112 

:

v. :

 :

HIGHLAND MINING COMPANY, : Mine: Highland 9 Mine 

LLC, : 

Respondent

DECISION 

Before: Judge Rae 

This case is before me upon a petition for assessment of the civil penalties filed under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue is Citation No. 

8494886,1

 alleging a violation of 30 C.F.R.§75.220(a)(1), which requires a mine operator to 

develop and follow an approved roof control plan. On October 27, 2011, The Secretary of Labor 

(“Secretary”) filed a Motion for Summary Decision. On October 28, Highland Mining submitted 

Respondent’s Motion for Summary Decision and Respondent’s Memorandum of Points and 

Authorities in Support of Motion for Summary Decision. 

For the reasons set forth below, the Secretary’s Motion for Summary Decision is 

DENIED. Respondent’s Motion for Summary Decision is GRANTED and this case is 

DISMISSED. 

Statement of the Case 

Citation No. 8494886 was issued on April 7, 2010. This citation alleges that Highland 

Mining violated the mandatory safety standard encoded in 30 C.F.R. §75.220(a)(1), which 

provides: 

Each 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. Additional measures shall be taken 

to protect persons if unusual hazards are encountered. 

1

 The other 37 citations originally included in this docket were settled, and this settlement 

was approved by me in a Decision Approving Partial Settlement issued on August 19, 2011. 

34 FMSHRC Page 166
Citation No. 8494886 alleges that the following condition or practice resulted in the 

issuance of the Citation: 

The Approved Roof Control Plan dated 12/18/2009 is not being followed on the 

#5 unit (MMU-065). The #7 entry is not bolted to within 5 feet of the face. The 

last row of bolts if approximately 15 feet from the face. The plan on the bottom 

of page 10 states the faces will be bolted within 5 feet of the face. 

As stated above, the parties have each filed a Motion for Summary Decision. Pursuant to 

Commission rules, a party moving for summary decision is entitled to a judgment in its favor if, 

based upon the record before the court, the record shows (i) that there is no genuine issue as to 

any material fact; and (ii) that the moving party is entitled to a summary decision as a matter of 

law. 29 C.F.R. §2700.67. 

Facts2 

The parties submitted a copy of the roof control plan at issue. Page 10 of the roof control 

plan is titled “Typical Bolting Sequence and Pattern for Dual Boom Bolters.” This page depicts 

two maps showing required distances of intersections, as well as the placement of roof bolts. At 

the bottom of the page, in a smaller font, is the sentence “Dead end places will be bolted to 

within 5' of the face.” 

The roof control plan also provides a list of 32 numbered items titled “Safety Precautions 

for Full Bolting Plan.” Item 27 states “Extended cuts greater than 20 feet will be bolted within 

48 hours unless a condition such as loss of power, equipment failure or other factors beyond 

management’s control exist which would prevent the bolting from being completed within the 

specified time.” 

At the time the citation was issued, the #7 entry was an active face. This entry had been 

mined approximately 10 hours before the citation was issued. (Resp.’s Motion for Summary 

Decision Ex. G.) The last row of roof bolts in the #7 entry was approximately fifteen feet from 

the face of the entry. (Citation No. 8494886; Resp.’s Motion for Summary Decision Ex. D at 

¶6.) 

Arguments 

The Secretary, in her Motion for Summary Decision, argues that she is entitled to a 

summary decision as a matter of law because the #7 entry was not bolted within five feet of the 

face. The Secretary contends that the “intent of the statement in the [roof control] plan is to have 

any face bolted within five feet of each face to prevent the potential of any weakness to become 

a hazard.” The Secretary also cites the fact that Highland has received eleven similar citations 

2

The parties were required to exchange proposed stipulations of fact by September 16, 

2011. Respondent submitted a proposed stipulation of fact by this date, but the Secretary failed 

to provide any comment. Highland submitted the proposed stipulations to the court, as well as 

affidavit from Charles Lilly and Randy Duncan. 

34 FMSHRC Page 167
between June 11, 2007 and January 26, 2010. The Secretary has submitted documentation to 

show that Highland has not contested seven of these citations, opting instead to pay them without 

contest. 

In its Response, Highland argues that page 10 of the roof control plan does not apply 

because the #7 entry was a working face, rather than a dead end face. Highland also contends 

that there is no evidence that the intent of the statement in the roof control plan was to require 

roof bolts within five feet of any face. Highland further contends that the citation was 

prematurely issued, as the roof control plan allows Highland 48 hours after mining an entry to 

install roof bolts in that entry. (Plan at p. 5, ¶27.) Highland also maintains that it is not 

precluded from contesting this citation merely because it has not contested allegedly similar 

citations in the past. These arguments are reiterated in Highland’s Motion for Summary 

Judgment. 

Analysis 

I find that Highland is entitled to summary decision as a matter of law. The unambiguous 

wording of the roof control plan states that dead end places will be bolted within five feet of the 

face. Previous Commission cases have used the term ‘dead end places’ to refer to areas where 

mining has been abandoned. See Green River Coal Co., 10 FMSHRC 1640, 1647 (referencing 

provision in ventilation plan requiring “all dead-end places shall be ventilated, and when 

practical, crosscuts will be provided at or near the face of each entry room before the place is 

abandoned.”) The definition of dead end place as one where mining has been abandoned also 

fits in with dictionary definitions of the term dead end. See Miriam Webster Dictionary (11th ed. 

2008)(defining “dead end” as “(i) to come to a dead end: TERMINATE; (ii) an end (as of a 

street) without an exit; (iii) a position, situation, or course of action that leads to nothing 

further.”) Additionally, if page 10 of the roof control plan is interpreted as requiring roof bolts 

within five feet of any face, then the requirement on page five does not make sense. The 

requirement on page five allows Highland 48 hours after mining to install roof bolts in an entry. 

Under the Secretary’s interpretation, if Highland installed roof bolts within 48 hours after mining 

an active face, Highland would be in compliance with page five, but would be in violation of 

page 10. 

The Secretary does not dispute that the #7 entry was active at the time the citation was 

issued. Rather, the Secretary contends that Highland is in violation of the purpose of the plan. 

The Secretary does not point to any section of the roof control plan which requires roof bolts 

within five feet of an active face. The Secretary also does not provide evidence to show that 

page 10 of the roof control should be read to require roof bolting within five feet of an active 

face. The fact that Highland has paid similar citations, rather than contesting them, is not 

relevant. It is unclear whether the prior citations were in fact similar, as there is no evidence that 

the previous citations were issued for working faces or dead end faces. Additionally, a paid 

citation in the past is not an admission to the facts of the instant violation nor does it estopp 

Highland from contesting this alleged violation.. Considering all of this, I find the Secretary’s 

argument without merit. 

34 FMSHRC Page 168
Additionally, I find that there is no genuine issue of any material fact. Both parties agree 

that the #7 entry was bolted approximately fifteen feet from the active face. As stated above, 

the Secretary does not dispute that the #7 entry was active at the time the citation was issued. 

Since these facts are not disputed, I find that summary decision is appropriate. 

Order 

It is ORDERED that the Secretary’s Motion for Summary Decision is DENIED. 

Respondent’s Motion for Summary Decision is GRANTED and this case is DISMISSED. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

William L. Barnwell, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, 100 YMCA Drive, Madisonville, KY 42431 

Brad Oakley, Esq., Jackson Kelly, PLLC, 175 East Main Street, Lexington, KY 40588 

/rar 

34 FMSHRC Page 169
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

601 New Jersey Avenue, NW, Suite 9500
 

Washington, DC 20001-2021

Telephone No.: 202-434-9950 

Telecopier No.: 202-434-9981
 

January 9, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. SE 2011-72-M 

Petitioner : A.C. No. 08-01015-234219

 : 

v. :

 : 

CEMEX CONSTRUCTION MATERIALS : 

OF FLORIDA, LLC. : Mine: Krome Quarry 

Respondent : 

DECISION 

Appearances: Robert Hendrix, Conference & Litigation Representative, U.S. Department of 

Labor, MSHA, Birmingham, Alabama, and Jeremy K. Fisher, Esq., Office of the 

Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of the Secretary 

of Labor; 

Fernando Arturo Chavez, CEMEX Construction Materials, Miami, Florida, for 

CEMEX Construction Materials of Florida, LLC. 

Before: Judge Zielinski 

This case is before me on a Petition for Assessment of Penalty filed by the Secretary of 

Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(d). The petition alleges that CEMEX Construction Materials of Florida, LLC, 

is liable for three violations of the Secretary’s Mandatory Safety and Health Standards for 

Surface Metal and Nonmetal Mines,1

 and proposes the imposition of civil penalties in the total 

amount of $1,095.00. A hearing was held in Miami, Florida. The parties made closing 

arguments, and waived further briefing. The parties were afforded an opportunity to submit 

citations to legal authority deemed relevant to their cases. Neither party did so. For the reasons 

that follow, I find that CEMEX committed two of the violations, and impose civil penalties in 

the total amount of $200.00. 

Findings of Fact - Conclusions of Law 

At all relevant times, CEMEX operated the Krome Quarry, located in Dade County, 

Florida, at which it drilled and blasted rock, collected material with a dragline, crushed rock, and 

turned out a variety of products, including sand and several sizes of stone. CEMEX operated 

several facilities in the State of Florida and elsewhere. Approximately 40 employees worked at 

1 30 C.F.R. Part 56. 

34 FMSHRC Page 170

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the quarry at the time of the inspection. Richard Woodall, an MSHA inspector, conducted a 

regular twice yearly inspection of the quarry on August 10 and 11, 2010, during which he issued 

several citations, three of which are at issue in this proceeding. Woodall has twenty years of 

mining experience, including seven years as an MSHA inspector. He was accompanied during 

the inspection by representatives of CEMEX, including Ray Valdez, the mine manger, and 

Fernando Chavez, a safety manager and CEMEX’s representative at the hearing. The citations at 

issue are discussed below. 

Citation No. 8544563 

Citation No. 8544563 was issued at 2:26 p.m. on August 10, 2010, pursuant to section 

104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.13011, which requires that air 

receiving tanks “shall be equipped with indicating pressure gauges which accurately measure the 

pressure within the air receiver tanks.” The violation was described in the “Condition and 

Practice” section of the Citation as follows: 

The air receiver tank located by the pressure washing area was not 

provided with a pressure gauge on the receiver tank itself. The 

gauge is needed to accurately measure the pressure in the tank. 

The employees working in the area around the receiver tank are 

exposed to the hazard of injury from the high pressure air if they 

don’t know the pressure in the tank. There was an automatic 

pressure relief valve on the vessel to prevent the tank from being 

over-pressurized. 

Ex. G-1. 

Woodall determined that that the violation was unlikely to result in a lost-work-days 

injury, that the violation was not significant and substantial (“S&S”), that one person was 

affected, and that the operator’s negligence was moderate. A civil penalty in the amount of 

$100.00 was assessed for this violation. 

The Violation 

Woodall observed a large tank that contained air pressurized by a compressor. There was 

a pressure relief valve mounted on the tank, but there was no pressure gauge mounted directly on 

the tank. Tr. 15. He observed a pressure gauge approximately 10 feet away from the tank that 

read 100 psi (pounds per square inch), which was the operating pressure of the tank. However, 

as he traced the lines to the gauge, he observed a gate valve in the line that could have isolated 

the pressure gauge from the tank. Tr. 16-17; Ex. G-2, R- . He did not close the valve in order to 

verify that it could isolate the gauge. Tr. 29-30. Woodall’s concern was that the gauge could be 

isolated by the valve, or that dirt or some other obstruction could occur in the line, causing the 

gauge to reflect an inaccurate measure of the pressure in the tank. 

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Attempts to trace the pressure lines from the tank to the gauge on photographs of the 

installation met with limited success at the hearing. Tr. 31-34. However, Woodall testified that 

he had traced the lines during the inspection and determined that the valve was capable of 

isolating the gauge. Tr. 36-37. Woodall also had discussed the location of the gauge and valve 

with company representatives, who did not assert that the valve did not isolate the gauge. Tr. 36-

37. CEMEX contends that the valve could not isolate the gauge. However, photographs of the 

installation do not clearly show the path of the line to the gauge, and videos show that the gauge 

functioned, but fail to establish that the valve was not capable of isolating the gauge. Ex. R-A, 

R-B, R-C. I credit Woodall’s testimony and find that the gate valve was in the line leading from 

the tank to the gauge, and was capable of isolating the gauge. The violation was abated by the 

installation of a gauge on the tank itself. 

The regulation requires that compressed air receiving tanks be equipped with pressure 

gauges. CEMEX’s gauge was not located on the tank. Rather it was located some 10 feet away 

from the tank. Moreover, there was a gate valve on the line leading to the gauge that was 

capable of isolating the gauge from the tank. The gauge in question appears to have been 

providing an accurate reading of the pressure in the tank, at least while the valve was open. 

However, that does not alter the fact that the tank was not equipped with a gauge. It goes to the 

gravity of the violation, and Woodall determined that the violation was unlikely to result in an 

injury.2 

I find that the regulation was violated, and that Woodall’s assessments of gravity and 

negligence were accurate. 

Citation No. 8544564 

Citation No. 8544564 was issued at 2:36 p.m. on August 10, 2010, pursuant to section 

104(a) of the Act. It alleges a violation of 30 C.F.R. § 47.41(a) which requires that operators 

“must ensure that each container of a hazardous chemical has a label.” The violation was 

described in the “Condition and Practice” section of the Order as follows: 

There was a plastic one-gallon container in the welding storage 

trailer that was not labeled to identify the contents. The labels are 

needed to ensure that persons working in the area know what is in 

the container. Persons are exposed to the hazard of coming into 

2

 CEMEX introduced a schematic drawing of a compressed-air braking system on a 

grader that shows a pressure gauge located remotely from a receiving tank. Ex. R-O. However, 

that is a piece of mobile equipment and the line runs directly from the tank to the gauge, which is 

most likely located in the operator’s compartment. It is of marginal, if any, relevance to the 

conditions at issue. 

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contact with a hazardous chemical. No one knew the contents of 

the container. 

Ex. G-4. 

Woodall determined that it was reasonably likely that the violation would result in a 

permanently disabling injury, that the violation was S&S, that one person was affected, and that 

the operator’s negligence was moderate. A civil penalty in the amount of $308.00 was assessed 

for this violation. 

The Violation 

While inspecting a trailer located in an area where welding was performed, Woodall 

observed a white plastic jug with no label on it, that contained an unidentified liquid. Tr. 53. 

The trailer was locked, but the welders and/or supervisors had keys. Tr. 57. Valdez tested the 

substance with his finger, against Woodall’s advice, and found it to have an oily texture. Tr. 54. 

He suffered no adverse consequences as a result of his testing effort. Tr. 64. Efforts to identify 

the substance were unsuccessful. The jug was taken to a waste oil containment area and 

disposed of. 

Woodall made his determination that an S&S violation had occurred, assuming a worstcase scenario. As he explained: “I did [assume the worst-case scenario], because it wasn’t water. 

I mean, it was one of those. . . . I didn’t know. Nobody knew what it was.” Tr. 64. The 

Secretary’s Hazardous Communication regulations are of relatively recent origin. The few cases 

that have been decided under the instant regulation have involved substances known to be 

flammable, which are identified in the regulation as posing a physical hazard. 30 C.F.R. § 47.11. 

See, e.g., Nelson Quarries, Inc., 30 FMSHRC 234 (April 2008) (ALJ) (unlabeled diesel fuel 

tank); Spencer Quarries, Inc., 28 FMSHRC 1005 (Nov. 2006) (ALJ) (unlabeled propane tank). 

The regulation at issue requires that each container of a hazardous chemical has a label. 

When charging a violation of that regulation, the Secretary, who has the burden of establishing 

each element of a violation by a preponderance of the evidence,3

 must prove that the container 

held a hazardous chemical, as defined in the regulations. Woodall candidly admitted that he did 

not know what the substance was. He opined that a substance that had an oil base would pose a 

“health or building hazard.” Tr. 65. However, the fact that it appeared to have an oily texture 

falls short of establishing that it had an oil base, or that it was hazardous as defined in the 

regulations. 

3 In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 

1838 (Nov. 1995), aff’d., Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 

(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek 

Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989); Jim Walter Resources Inc., 9 FMSHRC 

903, 907 (May 1987). 

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It is possible that CEMEX violated some other provision of the HazCom regulations, for 

example, section 47.21, which requires that operators evaluate each chemical brought on mine 

property and each chemical produced on mine property to determine if it is hazardous. However, 

considering the virtual absence of evidence as to the composition or nature of the substance, 

I find that the Secretary has failed to carry her burden of proving that the container held a 

hazardous chemical. The citation will be vacated. 

Citation No. 8544565 

Citation No. 8544565 was issued at 9:20 a.m. on August 11, 2010, pursuant to section 

104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.12018, which requires that: “Principal 

power switches shall be labeled to show which units they control, unless identification can be 

made readily by location.” The violation was described in the “Condition and Practice” section 

of the Order as follows: 

There was a 120-volt energized breaker in the electrical panel box 

in the MCC Room A that was not properly labeled to identify what 

circuit it controlled. The energized breaker was marked in the 

panel box as a spare, but had a wire hooked to it. No one knew 

what it went to. Persons could receive a fatal shock if an 

unintentional electrical fault occurred while persons were 

contacting whatever the mislabeled breaker controlled and persons 

did not know what to shut down. 

Ex. G-7. 

Woodall determined that it was reasonably likely that the violation would result in a fatal 

injury, that the violation was S&S, that one person was affected, and that the operator’s 

negligence was moderate. A civil penalty in the amount of $687.00 was assessed for this 

violation. 

The Violation 

When Woodall inspected Room A in the MCC, he noticed that a circuit breaker that was 

labeled as a spare was in the “on” position, which to him threw up a “red flag.” Tr. 69; Ex. G-8, 

R-H. He had someone take the cover plate off, and observed a wire connected to the breaker. 

No one knew what the wire was connected to, i.e., what that circuit energized. Tr. 70. The wire 

was disconnected. The breaker then did not control a circuit and was rendered a spare. It was 

later determined that the circuit energized a light. Tr. 82-83; Ex. R-I. 

The breaker, a principal power switch, was not labeled to show what it controlled, and 

there is no contention that identification could have been made readily by location. 

Consequently, the standard was violated. 

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Significant and Substantial 

The Commission recently reviewed and reaffirmed the familiar Mathies4

 framework for 

determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC 

___, ___ (October 5, 2011): 

The S&S terminology is taken from section 104(d) of the 

Mine Act, 30 U.S.C. § 814(d), and refers to more serious 

violations. A violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that 

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

reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the 

Commission further explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. 

MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. 

Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). An evaluation of the reasonable likelihood of 

injury should be made assuming continued normal mining 

operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 

(Aug. 1984). 

. . . .
 

. . . .
 

The Commission recently discussed the third element of 

the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 

32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an 

S&S violation for using an inaccurate mine map). The 

4 Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984) . 

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Commission held that the “test under the third element is whether 

there is a reasonable likelihood that the hazard contributed to by 

the violation, i.e., [in that case] the danger of breakthrough and 

resulting inundation, will cause injury.” Id. at 1281. Importantly, 

we clarified that the “Secretary need not prove a reasonable 

likelihood that the violation itself will cause injury.” Id. The 

Commission also emphasized the well-established precedent that 

“the absence of an injury-producing event when a cited practice 

has occurred does not preclude a determination of S&S.” Id. 

(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and 

Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 

1996)). 

The fact of the violation has been established. A measure of danger to safety, a discrete 

safety hazard, was contributed to by the failure to label the circuit, i.e., that a person might 

unintentionally come into contact with an energized wire or piece of equipment that was thought 

to be de-energized. Any injury resulting from the violation would most likely involve contact 

with a live 120-volt electrical circuit which could easily be reasonably serious, or even fatal, 

given the conditions in the area. Tr. 72. As is often the case, the primary issue in the S&S 

analysis is whether the hazard contributed to by the violation was reasonably likely to result in 

an injury. 

Woodall determined that an injury was reasonably likely because “no one knew what the 

energized breaker went to.” Tr. 72. He based his gravity determination on the fact that a person 

could unintentionally come into contact with the live circuit and suffer a potentially fatal shock, 

in part because a person could be sweating in Florida in August, or it could be raining. Tr. 72. 

Eduardo Yi, a project manager for CEMEX, is an electrical engineer who has worked in the 

mining industry for thirty years. He testified that, following the inspection, it was determined 

that the mislabeled circuit controlled a light that was mounted on a steel column, a picture of 

which was introduced into evidence. Tr. 82; Ex. R-I. He opined that the light fixture appeared 

to be in good condition, and that no one would have been exposed to an electrical hazard by 

contacting the energized light fixture. Tr. 83. Yi also described CEMEX’s established 

procedures for working on electrical equipment. Only qualified electricians are allowed to work 

on electrical equipment, and a strict lock-out, tag-out policy is in place. An electrician working 

on a piece of equipment would check with a test meter to make sure there was no power to the 

unit, both before and after the lock-out procedure. Tr. 83-86. 

I do not place great weight on Woodall’s evaluation of gravity. It was made on the basis 

of unknown factors. Certainly the fact that the breaker controlled an unknown energized circuit 

presented a potentially significant, but unknown, possibility of injury. In fact, however, the 

circuit powered a light fixture that appeared to be in good condition, allowing possibility of 

injury to be assessed more accurately. I agree with Yi that an injury was unlikely. Woodall’s 

explanation of the severity of any injury was also clouded by the fact that he did not know what 

circuit the breaker controlled, and his elevation to the fatal level based on potentially wet 

conditions strikes me as somewhat speculative. I find that if an injury occurred it would most 

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likely have resulted in lost work days or restricted duty. I agree that CEMEX’s negligence was 

moderate. 

CEMEX relied on a Commission Administrative Law Judge decision affirming a citation 

for a similar violation involving an unlabeled 480-volt power circuit that an experienced MSHA 

electrical specialist evaluated as unlikely to result in an injury. Omya Arizona, a division of 

Omya Inc., 33 FMSHRC ___ (Nov. 3, 2011) (ALJ).5

 While there are, no doubt, other examples 

of such violations having been evaluated as S&S, the facts of this case are similar to those in 

Omya, and the inspector’s assessment in that case, which was based upon known facts, is 

consistent with finding that the instant violation was not S&S. 

The Appropriate Civil Penalties 

The MSHA assessment sheet reflects that Krome Quarry is a small to moderate sized 

mine, as is its controlling entity, and that it had a negligible history of violations. The parties 

stipulated that the proposed penalties would not affect CEMEX’s ability to continue in business, 

and that CEMEX demonstrated good faith in abating the violations. 

Citation No. 8544563 is affirmed in all respects. A civil penalty of $100.00 was assessed 

by the Secretary. Considering the factors enumerated in section 110(i) of the Act, and guided by 

the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $100.00. 

Citation No. 8544565 is affirmed. However, the violation was unlikely to result in a lost 

work days or restricted duty injury, not reasonably likely to result in a fatality, and it was not 

S&S. A civil penalty of $687.00 was assessed by the Secretary. Considering the reduction in 

the level of gravity, the factors enumerated in section 110(i) of the Act, and guided by the 

Secretary’s penalty assessment regulations, I impose a penalty in the amount of $100.00. 

ORDER 

Citation No. 8544564 is VACATED. Citation No. 8544563 is AFFIRMED, and 

Citation No. 8544565 is AFFIRMED as modified. Respondent is ORDERED to pay civil 

penalties in the total amount of $200.00 within 45 days. 

/s/ Michael E. Zielinski 

Michael E. Zielinski 

Senior Administrative Law Judge 

5

 CEMEX also attempted to offer into evidence a Commission ALJ’s Decision 

Approving Settlement in which the gravity of a similar violation was reduced. The Secretary’s 

objection to that exhibit was sustained. Tr. 87-90. 

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Distribution: 

Robert Hendrix, Conference Litigation Representative, U.S. Department of Labor, MSHA, 135 

Gemini Circle, Ste. 212, Birmingham, AL 35209-5842 

Jeremy K. Fisher, Esq., Office of the Solicitor, U.S. Department of Labor, 

Atlanta, GA 30303 

Fernando Arturo Chavez, CEMEX Construction Materials FL, LLC, 13292 NW 118th Ave., 

Miami, FL 33178 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

January 10, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEST 2008-1490-M 

Petitioner : A.C. No. 50-01729-159523

 :

 v. :

 : 

STATE OF ALASKA, : Mine: Sag Screener 

DEPT. OF TRANSPORTATION, : 

Respondent : 

ORDER OF DISMISSAL 

Before: Judge Feldman 

This matter presents the issue of whether State of Alaska Department of Transportation 

(“Alaska”) front-end loaders used in conjunction with a mobile Sag Screener are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977, as amended, U.S.C. § 801 et seq. 

(2006) (“Mine Act”). The front-end loaders are used to maintain a 420-mile unpaved haul road 

that is used to service the Alaska pipeline. The loaders transfer rock, gravel and sandy material 

that has been screened by the mobile Sag Screener from a series of pits located along the haul 

road. The Secretary’s jurisdictional claim is based, in part, on Alaska’s acquiescence in 2002, 

upon the insistence of the Mine Safety and Health Administration (“MSHA”), to register the 

mobile Sag Screener as a mine. The Sag Screener has been assigned Mine ID No. 5001729. 

At issue are Citation Nos. 6444323 and 6444324 citing alleged non-significant and 

substantial (“S&S”) violations of mandatory safety standards in Part 56 of the Secretary’s 

regulations governing surface metal and non-metal mines. 30 C.F.R. Part 56. Citation 

No. 6444323 concerns exposed wires from a bushing on a Case 921C Front-End Loader in 

violation of the mandatory standard in 30 C.F.R. § 56.12004 that requires such conductors to be 

protected from mechanical damage. Citation No. 6444324 concerns an inoperable backup alarm 

on a Volvo BM2150 Front-End Loader in violation of 30 C.F.R. § 56.14132(a) that requires 

backup alarms to be maintained in functional condition. The Secretary seeks to impose a 

civil penalty of $100.00 for each of the cited violations. 

Alaska has filed a motion to dismiss the subject citations for lack of Mine Act 

jurisdiction based on the assertions that: (1) the products, taken from borrow pits, do not enter or 

affect commerce because the extracted materials are used exclusively by Alaska and are not 

offered for commercial sale; and (2) the sag screening operations are conducted solely for the 

purpose of maintaining the haul road and are not lands from which minerals are extracted and/or 

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milled as contemplated by the definition of a mine in section 3(h)(1) of the Mine Act. (Resp. 

Mot. at 5-7). Included within the statutory definition of “coal or other mine” in Section 

3(h)(1)(C) is “equipment . . . used in . . . the work of extracting such minerals from their natural 

deposits . . . or used in . . . the milling of such materials.” 30 U.S.C. § 802(h)(1). 

The Secretary opposes Alaska’s motion. The Secretary asserts the maintenance activities 

performed at the haul road come within the purview of the section 3(h)(1)(C) statutory definition 

of “a mine” because the mobile screening activities, which occur at numerous sites located along 

the haul road, constitute milling. The Secretary relies on a decision by Judge Miller that an 

Alaska mobile screener was subject to Mine Act jurisdiction. State of Alaska, Department of 

Transportation, 33 FMSHRC 1550 (June 2001) (ALJ). In that case, the mobile screener was 

used to size sand that was removed from several off-site locations, including two beach 

locations. The screened sand was transported to the Nome, Alaska airport where it was 

stockpiled for future use to treat icy conditions on runways. Id. at 1551. Any unscreened sand 

brought to the airport from off-site locations was screened before being stockpiled. Id. 

As discussed herein, the Secretary’s jurisdictional claim is denied because it is 

inconsistent with the 1979 MSHA and the Occupational Safety and Health Administration 

(“OSHA”) Interagency Agreement exempting certain borrow pits from the broad reach of the 

Mine Act. Moreover, even if the Secretary has the discretion to disregard the Interagency 

Agreement, the exercise of MSHA jurisdiction must be denied because it is based on a 

superficial reliance on the subject screening activities, rather than a reasoned functional analysis 

of whether those activities are normally performed by mine operators. See, e.g., Oliver M. Elam, 

Jr., Co., 4 FMSHRC 5, 6 (Jan. 1982). While I agree with Judge Miller’s decision that Alaska’s 

off-site sand removal, screening and storage at the Nome airport were comparable to activities 

normally performed by mine operators, the facts in Judge Miller’s case are not analogous to the 

subject screening and use of local borrow pit material for road maintenance. 

I. Background 

Alaska’s Motion to Dismiss summarizes the material facts in this matter: 

In 1973, Congress enacted the Trans Alaska Pipeline Authorization Act 

and authorized the issuance of federal contracts, permits, and rights-of-way 

needed to construct the 800-mile oil pipeline from Prudhoe Bay to Valdez, 

Alaska. See, 43 U.S.C. § 1652(b). In order to construct the Trans Alaska 

Pipeline, and to support oil field development at Prudhoe Bay on Alaska’s North 

Slope, it was evident at the outset that an all weather haul road would be needed 

from the farthest north highway extension, north of Fairbanks, all the way to 

Prudhoe Bay. The haul road (which later was officially named the Dalton 

Highway; see, AS 19.40.015) extends a distance of 420 miles. All but the 

southernmost portion of the Dalton Highway is located north of the Arctic Circle 

and was constructed across barren terrain where no all-season roads existed. 

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As a matter of compliance with state and federal law, and to ensure the 

safety of the traveling public, the AKDOT must maintain the Dalton Highway. 

23 U.S.C. § 116; AS 44.42.020. Maintenance of the Dalton Highway, which has 

a gravel surface in the summer and an ice surface for the remainder of the year, 

requires the use of sand and gravel. The AKDOT produces and stockpiles sand 

and gravel in borrow pits located within the Dalton Highway right-of-way 

corridor. The AKDOT produces its own sand and gravel, for a two-to-three week 

period every other year, because there are no commercially available sources of 

sand and gravel on the entire length of the Dalton Highway. 

AKDOT uses approximately forty borrow pits along the Dalton Highway. 

Each of the borrow pits is a ‘workplace’ as that term is defined by state and 

federal safety and health laws. The borrow pits, and all activities that occur 

within the borrow pits are fully regulated by Alaska Occupational Safety and 

Health (“AKOSH”). None of AKDOT’s forty borrow pits along the Dalton 

Highway are registered with MSHA as a “mine.” Upon MSHA’s insistence, in 

2002 AKDOT registered the Sag Screener – a portable piece of equipment – as a 

“mine”. 

The borrow pit where the subject MSHA inspection occurred is located at 

Mile 144 of the Dalton Highway, a location 235 miles north of Fairbanks. The 

State of Alaska received federal authorization prior to the construction of the haul 

road, pursuant to the Federal Aid to Highways Act, 23 U.S.C. § 317, to use 

materials from this borrow pit (BLM Material Source Site No: F-93007). The 

State of Alaska does not pay the federal government, or any other entity, for the 

use of this publicly-owned borrow pit, which provides construction and 

maintenance materials for the publicly-owned Dalton Highway. 

Resp. Mot. at 2-3. (Emphasis added). 

All haul road maintenance activities with respect to safety are regulated by the 

Alaska Department of Occupation Safety and Health. At the time the citations were issued on 

June 23, 2008, the front-end loaders were used to transport material from the Sag Screener, 

which was located at a large previously opened pit that was approximately one-quarter mile from 

the haul road. Sec’y Resp. at 2. There were three individuals working on site. Id. The material 

excavated from the pit was loaded onto the Screener which separated it into different sizes of 

rock. Id. Three conveyor belts carried the rock from the Screener to three separate piles. Id. 

The front-end loader conveyed the rock material to the haul road for repair. Sec’y Resp. at 2. 

The Secretary avers that the rock material “had commercial value.”1 Id. 

1

 Obviously, any material has a fitness for purpose use to the user. The relevant issue is 

whether the end-product resulting from the activities claimed to be mining is a marketable 

commodity based on its intrinsic value. 

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II. Federal Jurisdiction Based on Commerce Clause 

As a threshold matter, with respect to the jurisdictional objection raised by Alaska, it is 

well settled that intrastate activities which affect interstate commerce may be regulated by 

federal statute. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 281 

(1981). In this regard, in Jerry Ike Harless Towing, Inc., 16 FMSHRC 683 (Apr. 1994), the 

Commission stated: 

The Commerce Clause of the Constitution has been broadly construed for over 

50 years. Commercial activity that is purely intrastate in character may be 

regulated by Congress under the Commerce Clause, where the activity, combined 

with like conduct by others similarly situated, affects commerce among the states. 

Fry v. U.S., 421 U.S. 542, 547 (1975); Wickard v. Filburn, 317 U.S. 111 (1942) 

(growing wheat solely for consumption on the farm on which it is grown affects 

interstate commerce). Congress intended to exercise its authority to regulate 

interstate commerce to the ‘maximum extent feasible’ when it enacted section 4 

of the Mine Act. Marshall v. Kraynak, 604 F. 2d 231, 232 (3d Cir., 1979), 

cert denied 444 U.S. 1014 (1980); United States v. Lake, 985 F. 2d 265, 267-69 

(6th Cir. 1993). In Lake, the mine operator sold all its coal locally and purchased 

mining supplies from a local dealer 985 F. 2d at 269. Nevertheless, the court held 

that the operator was engaged in interstate commerce because ‘such small scale 

efforts, when combined with others, could influence interstate coal pricing and 

demand.’ Id. 

16 FMSHRC at 686. 

In this case, the haul road is used to maintain the Trans Alaska Pipeline, and to support 

oil field development at Prudhoe Bay. It is undeniable that the development and transmission of 

this energy source has a significant and fundamental impact on the national economy. Such 

activities provide a basis for federal jurisdiction as contemplated by the Commerce Clause. 

III. Whether Alaska’s Screening Constitutes

 “Milling” Subject to the Mine Act
 

a. Chevron Analysis 

Having concluded that Alaska’s borrow pit screening activities are subject to federal 

jurisdiction, the focus shifts to whether Alaska’s milling activities at numerous locations 

adjacent to the 420-mile haul road are subject to Mine Act jurisdiction. As noted, section 3(h)(1) 

of the Act defines a “coal or other mine” to include “equipment . . . used in . . . the milling of . . . 

minerals.” 30 U.S.C. § 802(h)(1). Section 3(h)(1) further provides that, in determining 

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“what constitutes mineral milling for purposes of this Act, the Secretary shall give due 

consideration to the convenience of administration resulting from the delegation to one 

Assistant Secretary of all authority with respect to the health and safety of miners employed 

at one physical establishment.” Id. The term “milling” is not defined in the Act. 

The Commission has set forth the parameters for determining the reasonableness of the 

Secretary’s assertion that an entity’s activities constitutes “milling” under section 3(h)(1) of the 

Act. Watkins Engineers & Constructors, 24 FMSHRC 669 (July 2002). The Commission 

stated: 

The first inquiry in statutory construction is “whether Congress has directly 

spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. 

Council, 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 

584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its 

language. See Chevron, 467 U.S. at 842-43; accord Local Union No. 1261, 

UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). However, when a statute 

is ambiguous or silent on a point in question, a further analysis is required to 

determine whether an agency’s interpretation of the statute is a reasonable one. 

See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2; 

Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994). Deference is 

accorded to “an agency’s interpretation of the statute it is charged with 

administering when that interpretation is reasonable.” Energy W. Mining Co. v. 

FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). 

The agency’s interpretation of the statute is entitled to affirmance as long as that 

interpretation is one of the permissible interpretations the agency could have 

selected. See Joy Techs., Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), 

cert. denied, 520 U.S. 1209 (1997) (citing Chevron, 467 U.S. at 843); Thunder 

Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995). 

The Supreme Court recently recognized that Chevron deference is appropriately 

applied to an agency’s interpretation of a statute when Congress delegated 

authority to the agency to speak with the force of law when it addresses ambiguity 

or “fills in a space” in the statute and the agency's interpretation claiming 

deference was promulgated in the exercise of that authority. United States v. 

Mead Corp., 533 U.S. 218, 226-27, 229 (2001). Section 3(h)(1) contains an 

express delegation of authority to the Secretary to determine what constitutes 

milling. See In re: Kaiser Aluminum and Chem. Co., 214 F.3d 586, 591 (5th Cir. 

2000) (“Congress expressly delegated to the Secretary . . . authority to determine 

what constitutes mineral milling”) (internal quotations omitted), cert. denied, 532 

U.S. 919 (2001). Thus, Congress explicitly left a gap for the Secretary to fill with 

respect to the definition of milling. Under Mead, 533 U.S. at 227, the Secretary’s 

interpretation of milling is entitled to acceptance if it is reasonable. See Chevron, 

467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2; Keystone Coal, 

16 FMSHRC at 13. Id. at 672-73. 

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b. OSHA/MSHA Interagency Agreement 

Consequently, disposition of the jurisdictional question hinges on whether the Secretary’s 

assertion that Alaska’s screening activities constitute milling is reasonable. Resolution of this 

issue requires consideration of the Secretary’s Interagency Agreement, as well as application of 

the traditional functional analysis to determine if the subject activities are normally performed by 

a mine operator. As a threshold matter, in 1979, consistent with the statutory authority delegated 

to the Secretary in section 3(h)(1) to unify jurisdiction under the oversight of one Assistant 

Secretary, the Mine Safety and Occupational Safety and Health divisions entered into an 

Interagency Agreement. 44 Fed. Reg. 22827 (Apr. 17, 1979). 

The Interagency Agreement noted that: 

Milling is the art of treating the crude crust of the earth to produce therefrom the 

primary consumer derivatives. The essential operation in all such processes is 

separation of one or more valuable desired constituents of the crude from the 

undesired contaminants with which it is associated. 

Id. at 22829. (Emphasis added). 

In other words, milling is an upgrading process that involves the separation of valuable 

minerals from earthen material. Id. The Secretary asserts that the subject screening process 

constitutes milling because the separated rock material has an intrinsic value. The Secretary’s 

reliance on the concept of intrinsic value is misplaced. Milling concerns a process performed to 

make the end-product suitable for a particular use or to meet market expectations. Oliver Elam, 

4 FMSHRC at 8. Examples are crushing and grinding activities at a quarry that pulverize 

minerals for the purpose of creating various materials for end-users. As distinguished from the 

instant case, the materials are typically transported by or to the consumer for use at a desired 

location because of the materials’ intrinsic value. 

Here, however, the screened rock is bulk material extracted from numerous areas 

adjacent to the haul road as a matter of convenience. As described in the Interagency 

Agreement, such bulk material is characterized as a “borrow pit.” Alaska’s intermittent seasonal 

use of the mobile Sag Screener to separate different sizes of rock, as the fitness for purpose need 

arises to fill the haul road, does not rise to the level of “milling” products to meet market 

specifications. 

The Interagency Agreement delineates the elements of a borrow pit and resolves 

jurisdictional questions. The Agreement states: 

“Borrow Pits” are subject to OSHA jurisdiction except those borrow pits located 

on mine property or related to mining. (For example, a borrow pit used to build a 

road or construct a surface facility on mine property is subject to MSHA 

jurisdiction). “Borrow Pit” means an area of land where the overburden, 

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consisting of unconsolidated rock, glacial debris, other earthen material overlying 

bedrock is extracted from the surface. Extraction occurs on a one-time only basis 

or only intermittently as need occurs, for use as fill materials by the extracting 

party in the form in which it is extracted. No milling is involved, except for use of 

a scalping screen to remove large rocks, wood and trash. The material is used by 

the extracting party more for its bulk than its intrinsic qualities on land which is 

relatively near the borrow pit. 

44 Fed. Reg. at 22828 (Apr. 17, 1979). (Emphasis added). 

To further explain its jurisdiction, or lack thereof, over borrow pits, MSHA adopted 

interpretive guidelines in 1996 to clarify its 1979 Interagency Agreement. The guidelines 

provide in pertinent part: 

Thus, if earth is being extracted from a pit and is used as fill material in basically 

the same form as it is extracted, the operation is considered to be a “borrow pit.” 

For example, if a landowner has a loader and uses bank run material to fill 

potholes in a road, low places in the yard, etc., and no milling or processing is 

involved, except for the use of a scalping screen, the operation is a borrow pit. 

The scalping screen can be either portable or stationary and is used to remove 

large rocks, wood or trash. In addition, whether the scalping is located where the 

material is dug, or whether the user of the material from the pit is the owner of the 

pit or a purchaser of the material from the pit, does not change the character of the 

operation, as long as it meets the other criteria. 

MSHA Program Policy Manual, Section 4, I.4-3 (1996). (Emphasis added). 

I stress that I recognize that the legislative history of the Mine Act supports the 

proposition that Congress intended a broad interpretation of what constitutes a “coal or other 

mine.” In this regard, the Senate Committee stated that “what is considered to be a mine and to 

be regulated under this Act [shall] be given the broadest possibl[e] interpretation, and ... doubts 

[shall] be resolved in favor of ... coverage of the Act.” S. Rep. No. 95-181, 95th Cong., at 14 

(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95th Cong., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978) ( “Legis. 

Hist.”). See Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cr. 1979), 

cert. denied, 444 U.S. 1015 (1980). 

Although doubt provides a basis for broadly interpreting the Mine Act’s jurisdictional 

scope, it is disingenuous to find doubt where none exists. The Secretary’s proffered 

interpretation is undermined by the Interagency Agreement and subsequent guidelines. These 

documents reflect the Secretary’s recognition that the use of a scalping screen to maintain a road, 

by using material removed from areas located in close proximity to the road, does not provide an 

adequate basis for Mine Act jurisdiction. Consequently, the Secretary’s assertion that the subject 

screening activities now constitute “milling” under section 3(h)(1) of the Act is, at best, 

arbitrary. 

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c. Functional Analysis 

I am also cognizant that, arguably, the Secretary is not bound by the terms of the 

Interagency Agreement because section 3(h)(1) authorizes the Secretary “to give due 

consideration to the convenience of administration” when delineating OSHA and MSHA 

oversight. However, even if the Secretary elected to disregard the terms of the Interagency 

Agreement, conferring MSHA jurisdiction would be contrary to the traditional functional 

analysis that has been utilized by the Commission and the Courts to resolve questions of 

Mine Act jurisdiction. 

The seminal case in this regard is Oliver M. Elam, supra, wherein despite acknowledging 

the broad reach of the Mine Act, the Commission determined Elam’s activities, as a commercial 

dock operator who loaded coal onto barges, to be outside the coverage of the Act. Elam noted 

that “inherent in the determination of whether an operation is properly classified as “mining” is 

an inquiry not only into whether the operation performs one or more of the listed work activities 

[in section 3(h)(1) such as milling], but also into the nature of the operation performing such 

activities.” Elam, 4 FMSHRC at 7 (emphasis in original). Elam established a two prong test: (1) 

whether the subject activities are normally performed by a mine operator; and (2) whether the 

activities performed are undertaken to make the extracted material suitable for a particular use or 

to meet market specifications. Id. at 8. 

Consistent with Elam, in a split decision in Kinder Morgan, the Commission identified 

the relevant considerations for determining whether the processing and handling of extracted 

material constitutes mining. Such considerations include the degree of handling and 

transportation performed, and whether such handling and use is the type normally performed by 

a mine operator rather than an end-use consumer. Kinder Morgan Operating L.P. “C,” 

23 FMSHRC 1288, 1296 (Dec. 2001) citing Herman v. Associated Elec. Coop., Inc., 172 F.3d 

1078, 1082-83 (8th Cir. 1999) (finding no Mine Act jurisdiction based on such factors as 

whether coal had entered the stream of commerce; the degree to which the coal was processed by 

the cited entity; and whether such handling was that which is usually performed by an end-use 

consumer); RNS Servs., Inc. v. Sec’y of Labor, 115 F.3d 182, 185 (3d Cir. 1997) (finding Mine 

Act jurisdiction based, in part, on consideration that MSHA exercised jurisdiction over a 

company that handled coal after the cited entity), aff’g RNS Servs. Inc., 18 FMSHRC 523 (Apr. 

1996). 

Although the above cited cases concern jurisdictional issues with regard to entities that 

handled and loaded coal, the Commission has continued to apply a traditional functional analysis 

to resolve whether particular milling activities are covered by the Act. Watkins Engineering & 

Constructors, 24 FMSHRC at 669 (July 2002). Specifically, the Commission stated: 

Within the industry, milling is defined as: “The grinding or crushing of ore. 

The term may include the operation of removing valueless or harmful 

constituents ... ,” while mill is defined as a “mineral treatment plant in which 

crushing, wet grinding, and further treatment of ore is conducted.” DMMRT at 

344 (emphasis added); see also Alcoa Alumina & Chems., L.L.C., 23 FMSHRC 

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911, 914 (Sept. 2001) (using DMMRT to determine usage in mining industry). 

The ordinary meaning of “to mill” is “to crush or grind (ore) in a mill,” and the 

term “a mill” is defined as “a machine for crushing or comminuting some 

substance.” Webster’s Third New Int’l Dictionary (Unabridged) 1434 (1993); see 

also Nolichuckey Sand Co., 22 FMSHRC 1057, 1060 (Sept. 2000) (“Commission 

... look[s] to the ordinary meaning of terms not defined by statute”). These 

definitions are consistent with the Secretary’s interpretation that milling includes 

processes such as grinding and crushing, [although] the separation of waste from 

valuable materials is not an essential component of milling. 

Id. at 674-75. (Footnote omitted). 

The separation of materials of differing sizes is inherent in the screening process. 

While it is true that screening is commonly performed during milling, such screening normally 

sizes materials that have already been subject to the principal elements of milling, such as 

crushing and/or grinding. Thus, concluding that Alaska’s activities are subject to Mine Act 

jurisdiction simply because Alaska uses a screen to separate earthen material, when no 

transformation of the quality of the material occurs, begs the question. As acknowledged in 

the Interagency Agreement, local screening alone, for the purpose of repairing non-mine 

roadways, typically does not provide a basis for Mine Act jurisdiction. 

Turning to the facts of this case, Alaska’s screening activities are not performed at a 

centralized preparation facility for the purpose of creating a marketable consumer derivative. 

In this regard, there are no processing procedures such as grinding or crushing that are 

accomplished by utilizing sophisticated equipment or techniques. Nor is the end-product in 

this case, screened rocks, crushed or stockpiled at a central location, or, transported to off-site 

locations to be used for its intrinsic value. Rather, the screened rock residual is recovered, 

as bulk material, as a matter of convenience, to seasonally fill and repair a gravel haul road. 

Thus, applying the longstanding two-pronged Elam test, the screening activities in this matter 

are neither principal activities normally performed in the mineral milling process, nor activities 

undertaken to make the extracted rock material suitable for a particular use meeting market 

specifications. Consequently, there is an inadequate basis for concluding that the screening 

activities performed constitute “milling” as contemplated by section 3(h)(1) of the Act. 

d. Distinguishable Case Law 

The conclusion that the subject screening activities performed by Alaska do not 

constitute mining is not inconsistent with the decision by Judge Miller. State of Alaska, 33 

FMSHRC 1550. Judge Miller found Mine Act jurisdiction with regard to an Alaska mobile 

screener that was used to spread sand and gravel on runways at the Nome, Alaska airport. Id. 

The Nome screener was used to size sand and gravel into three products: (1) undersized 1⁄4 inch 

minus aggregate, (2) midsized 1⁄4-1⁄2 inch aggregate, and (3) oversized 1⁄2 inch plus aggregate. Id. 

The gravel was used to sand airport runways to prevent airplanes from sliding on ice and snow. 

Id. 

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The Nome Screener was used by the State of Alaska Department of Transportation 

(AKDOT) annually at various locations, including two AKDOT owned ocean beach 

borrow pits, for a three to four week period in order to stockpile enough sand for use in the 

winter. Id. at 1551. At these locations, front-end loaders placed unsorted sand into the screener 

and then loaded the processed mid-sized sand into trucks that then transported the material for 

use at the Nome airport. Id. On other occasions, trucks hauled beach sand from the borrow pits 

to a warehouse yard at the Nome airport where the screener was used to size the sand. Id. 

The Nome Screener was stored at the airport when not in use. Like the Sag Screener in the 

current case, the Nome Screener was registered as a mine in 2002, as requested by MSHA. Id. 

Although Judge Miller’s case and this case both involve Alaska screening activities, 

the particular circumstances are significantly different. In Judge Miller’s case, Alaska screened, 

sized and transported material from various locations, including two beach borrow pits. The 

sand, a material having commercial intrinsic value, was transported to the Nome airport where 

it was applied to runways, or, stored at an airport warehouse after further screening and sizing. 

Screening, sizing, and stockpiling at a storage facility are functions normally performed by a 

mine operator. 

In rejecting Alaska’s contention, that the beach-originated sand was a “borrow pit” 

exempt from the Mine Act, Judge Miller relied on prior case law limiting the interpretation of 

the “borrow pit” exemption. However, these cases are readily distinguishable from the instant 

case. For example, in Kerr Enterprises, Inc., 26 FMSHRC 953 (Dec. 2004) (ALJ), unlike the 

instant case, the entity deemed to be mining, which extracted clay, sand, and topsoil screened at 

an excavation site, sold the processed product to more than 50 customers, including landscape 

companies, construction contractors, and concrete companies. Id. at 954. 

Judge Miller also relied on New York State Department of Transportation, 2 FMSHRC 

1749 (July 1980) (ALJ), to support Mine Act jurisdiction. Unlike this case, New York extracted 

sand from a central location known as the Underwood Pit. Id. at 1753 The sand was stockpiled 

at this location for winter disbursement on Essex County highways to alleviate winter snow and 

ice conditions. Id. The screening, central stockpiling, and ultimate transporting of sand for the 

treatment of a system of county roads and highways, is inapposite to the facts in this matter 

concerning the local use of borrow pit material that was transported one-quarter mile to maintain 

a gravel road. Id. 

In addition, Judge Miller relied on Fred Knobel, 15 FMSHRC 742 (Apr. 1993) (ALJ). 

Fred Knobel operated a portable rock crusher at various construction sites. Id. at 743. 

The rock crusher was used to crush rock for subcontracts with other construction companies. Id. 

The crushed rock was used as an underlayment for residential driveways or sold to various 

contractors who hauled it away for a use elsewhere. Id. at 744. As in Kerr, and in New York 

State DOT, the end product in Fred Knoble, was sold to end-use consumers and/or transported to 

various locations, because of its intrinsic market value. Id. 

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It is worth noting that the leading cases concerning Mine Act jurisdiction over screening 

activities involve the processing and selling of sand and gravel from material that had previously 

been dredged from riverbeds. See Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 684 (Apr. 

1994); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979), cert denied, 

444 U.S. 1015 (1980). Such activities are readily distinguishable from the borrow pit activities 

in this matter. Consequently, unlike the instant case, the cases that support the exercise of 

Mine Act jurisdiction for screening activities have the common thread of the processing, 

stockpiling, transportation, and/or sale of mineral products having a market value that ultimately 

will be consumed by end-users. 

In view of the above, the Secretary’s asserted jurisdictional claim over Alaska’s haul road 

screening activities is inconsistent with the Secretary’s Interagency Agreement. Moreover, 

declining to find an adequate basis for the Secretary’s assertion of MSHA jurisdiction is 

consistent with previous cases where MSHA jurisdiction was based on satisfaction of a 

traditional functional analysis. The registration of the Sag Screener as a mine cannot confer 

jurisdiction when none exists. Thus, this decision to vacate the citations concerning front-end 

loaders should be narrowly construed as it is based solely on the subject screening activities that 

do not constitute milling as contemplated by the Mine Act. 

As a final matter, I note, parenthetically, that sovereign entities, such as Alaska, can be 

subject to Mine Act jurisdiction if they engage in activities that result in the production of 

mineral end-products of commercial value even though the end-products are intended for 

government use. As discussed herein, resolution of jurisdictional questions ultimately must be 

based on whether the subject activities are normally performed by a mine operator. While the 

federal reach of the Mine Act is expansive, it is not intended to infringe on reasonable assertions 

of jurisdiction by state authorities over activities, such as road maintenance, that are not 

traditionally viewed as mining. In this regard, the borrow pit activities in this matter are 

authorized under a federal statute in 23 U.S.C. § 317 which appropriates adjacent federal lands 

for the purposes of construction or maintenance of highways. 

ORDER 

In view of the above, IT IS ORDERED that the State of Alaska’s Motion to 

Dismiss the subject citations for lack of Mine Act jurisdiction IS GRANTED. Accordingly, 

IT IS ORDERED that Citation Nos. 6444323 and 6444324 ARE VACATED. Consequently, 

the captioned civil penalty proceeding IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

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Distribution: (Regular and Electronic Mail)
 

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 

1111 Third Avenue, Suite 945, Seattle, Washington 98101-3212
 

John D. Pereza, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, 2060 Peabody Rd., Suite 610, Vacaville, CA 95687 

Sean P. Lynch, Assistant Attorney General, State of Alaska - Department of Law, 

Civil Division - Transportation Section, P.O. Box 110300, Juneau, AK 99811 

/jel
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

January 11, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY & HEALTH :

 ADMINISTRATION (MSHA), : Docket No. CENT 2011-76-M 

Petitioner, : A.C. No. 39-01412-234368 

: 

v. : 

: Gravel Pit 

GRAVEL PIT COMPANY : 

Respondent. : 

DECISION 

Appearances: Pamela F. Mucklow, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner; 

Albert Lee Yager, Owner, Gravel Pit Company, Madison, South Dakota, 

for Respondent. 

Before: Judge Manning 

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 the Gravel Pit Company 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”). 

Albert “Lee” Yager owns and operates a sand and gravel quarry near Madison, South 

Dakota, that operates under the name Gravel Pit Company. It is a small, intermittent quarry that 

includes a crushing plant. The case involves one section 104(a) citation. An evidentiary hearing 

was held and the parties introduced testimony and documentary evidence. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

On August 17, 2010, MSHA Inspector James M. Peck issued Citation No. 6588043 to 

Mr. Lee Yager for an alleged violation of section 56.14107(a) of the Secretary’s safety 

standards. The citation states: 

The mine operator had a tail pulley on the Kolhman screen plant 

conveyor that was not adequately guarded to protect persons from 

contacting the moving machine parts that can cause injury. This 

condition exposes miners to the hazard of becoming entangled. 

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The rear section of the tail pulley was not guarded creating an 

opening [of approximately] 29 inches across the top, 15 inches 

across the bottom and 25 inches tall. The tail pulley was 28 inches 

from the outside framework. Each shift the plant was run, a miner 

would access the area to do cleanup under the tail pulley with a 

shovel. With continued normal operations, a miner would 

reasonably likely suffer a foreseeable fatal injury from becoming 

entangled in the moving machine part. 

(Ex. G-8). Inspector Peck determined that an injury was reasonably likely to occur and that such 

an injury could reasonably be expected to result in a fatal accident. Further, he determined that 

the violation was significant and substantial (“S&S”) and that one person would be affected. In 

addition, he found that the violation was the result of moderate negligence on the part of the 

operator. 

Section 56.14107(a) provides that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” The Secretary 

proposes a penalty of $1,795.00 for this citation. 

A. Background and Summary of Testimony 

Inspector Peck testified that he issued the subject citation because there was an opening 

at the back of the tail pulley area that exposed the moving machine parts. (Tr. 14). He took a 

photograph of the alleged violation that shows the subject opening. (Ex. G-1). The photograph 

shows that the pulley was a fluted, self-cleaning pulley. Peck testified that there is a greater 

chance of someone becoming entangled when a pulley is fluted. (Tr. 20). He determined that, if 

a miner were to become entangled in the tail pulley, it is likely that he would suffer a fatal injury. 

(Tr. 18). He based this conclusion on the size of the opening. He felt that there was “a potential 

for the whole person to be pulled in and then suffer serious injury, possibly amputation, serious 

entanglement.” Id. The cause of death could be “blunt force trauma, loss of a limb, shock, loss 

of blood.” (Tr. 19). He based this conclusion on his MSHA training and on information about 

similar accidents. (Ex. G-9). A miner could also suffer a wide range of non-fatal injuries that 

are permanently disabling. (Tr. 21-24). 

Inspector Peck testified that an injury was reasonably likely. Miners used a short Dhandled shovel to clean up accumulations under and around the tail pulley. The area was 

shoveled while the belt was operating. (Tr. 25). The inspector testified that Lee Yager told him 

that the area was cleaned up while the belt was running because he did not want to shut the plant 

down. Id. Yager’s statement was a factor in the inspector’s S&S determination. (Tr. 25-26). 

The operator terminated the violation by installing a guard over the opening. (Tr. 27; Ex. G-2). 

The photo of the terminated tail pulley shows a shovel handle sticking out. The shovel was 

placed in that location to facilitate cleaning up accumulations around the tail pulley. The photos 

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taken by the inspector show that the area around the tail pulley was easily accessible to miners. 

(Ex. G-3 and G-4). 

Inspector Peck determined that the operator’s negligence was moderate, in part because 

he was told that the guarding for the tail pulley had been in the same condition for many years 

and it had never been cited before. (Tr. 31). The violation was obvious, however. Id. 

Inspector Daniel Scherer also testified for the Secretary. He inspected the Gravel Pit 

Mine on June 2, 2009. (Tr. 35). He testified that he issued about ten citations during his 

inspection including citations for inadequate berms and inadequate guards. One of the berm 

citations was on a roadway that passed by the tail pulley that was cited in the present case. (Ex. 

G-5 and G-6). Rick Yager, who was responsible for the day-to-day operation of the crusher, was 

with Inspector Scherer when he issued the berm citation. (Tr. 44). The photo that the inspector 

took shows that the tail pulley was guarded in the same manner as it was on August 17, 2010, 

when Peck inspected the crusher. (Ex. G-5). Inspector Scherer did not consider the tail pulley to 

be adequately guarded on June 2, 2009, but he did not issue a citation. Rick Yager advised the 

inspector that accumulations were cleaned up with a loader and that there was no foot traffic in 

that area. (Tr. 46). Scherer testified that, in response, he told Yager that the inadequate guarding 

on the tail pulley violated section 56.14107(a), but that he was “giving him compliance” because 

of the location of the screening plant at that time. Id. Inspector Scherer believed that the 

presence of the elevated roadway and the berm that was required to be constructed immediately 

adjacent to the back of the tail pulley would make it difficult for anyone to become entangled in 

the tail pulley. (Tr. 46-47, 55; Ex. G-5). Scherer believed that Rick Yager understood what he 

was telling him, but Yager would often walk away when he was trying to tell him something. 

This particular MSHA inspection was rather heated because Scherer withdrew a miner for not 

being properly trained. The next regular safety and health inspection MSHA conducted was the 

one conducted by Inspector Peck on August 17, 2010. (Tr. 53-54; Ex. G-13). 

Lee Yager testified that he has been operating the subject gravel pit for about 20 years. 

(Tr. 59). He has worked in and around sand and gravel operations since he was 16 years old. He 

testified that he does not understand why Inspector Scherer did not issue a citation on June 2, 

2009, if the lack of a guard at the back of the tail pulley could cause a fatal injury. (Tr. 60). If it 

was a violation on August 17, 2010, it was also a violation on June 2, 2009. Mr. Yager 

maintains that he received a citation October 16, 1996, on the same tail pulley and he installed 

the guards that were present on August 17, 2010, to abate the condition. (Tr. 60-61; Ex. GP-1). 

No MSHA inspector had cited the guard as being inadequate between October 1996 and August 

2010. Mr. Yager testified that he is contesting the moderate negligence determination of 

Inspector Peck. (Tr. 62). He further stated that he will be changing the guards on the tail pulley 

in order to completely enclose the pulley “so the tailings can drop out the bottom and we get 

them out the side, which would make it safer, I think.” Id. He believes, however, that an 

accident was unlikely. (Tr. 63). On cross-examination, he acknowledged that the crushing plant 

was typically moved to a different location about once or twice a year. (Tr. 65). 

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B. The Violation 

It is important to recognize that the Commission and the courts have uniformly held that 

mine operators are strictly liable for violations of safety and health standards. See, e.g. Asarco v. 

FMSHRC, 868 F.2d 1195 (10th Cir. 1989). “[W]hen a violation of a mandatory safety standard 

occurs in a mine, the operator is automatically assessed a civil penalty.” Id. at 1197. It is clear 

that the condition cited by Inspector Peck violated section 56.14107(a) because the tail end of 

the cited conveyor was not guarded to protect persons from contacting the tail pulley. The 

violation is therefore affirmed. 

C. Significant and Substantial, Gravity and Negligence 

An S&S violation is described in section 104(d)(1) of the Act as a violation “of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard.” A violation is properly designated S&S “if, based upon the 

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

contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., 

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

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)(1), it is the 

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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). 

As discussed above, I find that Respondent violated the cited mandatory safety standard. 

Further, I find that a discrete safety hazard contributed to by the violation existed. I also find 

that it was reasonably likely, assuming continued mining operations, that the hazard contributed 

to by the violation would have resulted in an injury of a reasonably serious nature. I credit the 

testimony of Inspector Peck on this issue which establishes the S&S nature of the violation. The 

evidence clearly establishes that the tail pulley was a fluted, self-cleaning pulley and that miners 

were shoveling up accumulations while the belt was operating. 

I also find that the violation was serious. Inspector Peck determined that the injury that 

was most reasonably likely was a fatal accident. Although I find that a fatal injury was possible, 

I find, based on the record, that the most likely injury was a permanently disabling one. It is 

more likely that someone would be severely injured if he became entangled in the pulley system. 

A fatal injury was possible, however. See e.g. Darwin Stratton & Son Inc., 22 FMSHRC 1265 

(Oct. 2000) (ALJ). 

At the close of the hearing, the Secretary moved to increase the negligence of the 

operator to high and to increase the penalty to $2,500.00. (Tr. 67). She based this motion on the 

fact that Inspector Scherer warned Rick Yager that the tail pulley needed to be guarded at the 

back. I find that increasing the degree of negligence and increasing the civil penalty is not 

warranted. Indeed, I find that the negligence of Respondent was low. I credit the testimony of 

Inspector Scherer concerning the conversation he had with Rick Yager on June 2, 2009. During 

that conversation, Scherer warned Rick Yager that if the crusher were moved to a different 

location that was not immediately adjacent to a bermed roadway, the unguarded end of the tail 

pulley would be in violation of the safety standard. When Inspector Peck inspected the crusher 

in August 2010, the crusher had been moved and the employees were exposed to the hazard of 

unguarded moving machine parts. Inspector Scherer admitted, however, that due to the 

acrimony between MSHA and the operator during his June 2009 inspection, Rick Yager may 

have walked away during the conversation and may not have understood what he was saying. I 

credit this testimony and find that it was unlikely that Rick Yager comprehended the importance 

of that conversation. 

Lee Yager credibly testified that the cited guard was installed following an MSHA 

inspection conducted on October 16, 1996, and that guard was deemed sufficient to terminate the 

citation that was issued. The guard was not cited as being inadequate until Inspector Peck’s 

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inspection in August 2010. The Secretary argues that the citation Yager is relying on (Citation 

No. 4653877) was issued for the guard on the tail pulley of the oversize conveyor, which was 

about four feet above the ground. (Tr. 51, 67-68; Ex. GP-1). She maintains that the cited tail 

pulley was not the tail pulley cited by Inspector Peck. Mr. Yager testified that his crushing plant 

does not include an oversize conveyor because oversized material is not a problem for this 

quarry. (Tr. 68-69). He maintains that the 1996 citation was issued on the same tail pulley as 

the citation issued by Inspector Peck. 

I need not resolve this issue. I find that Lee Yager genuinely and sincerely believed that 

the existing guard on the cited the tail pulley was safe and was in compliance with the safety 

standard. He based this conclusion in large part on the fact that the tail pulley had not been cited 

by any MSHA inspector since at least October 16, 1996. I find that Respondent’s negligence 

was low. 

D. Size of the Operator. 

I find that Respondent is a very small, intermittent operator. Information about 

Respondent at MSHA’s website indicates that in 2010, Respondent employed three people who 

worked a total of 3,489 hours. In 2011, the mine also employed three individuals who worked a 

total of 3,704 hours. 

II . APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. The record shows that Respondent had ten paid violations at this 

facility during 15 months preceding August 17, 2010. (Ex. G-10). Five of these violations were 

S&S. The total penalty paid for the ten violations was $1,180.00. Respondent is a very small 

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. My gravity, negligence, and size findings 

are set forth above. Based on the penalty criteria, I find that a penalty of $500.00 is appropriate 

for this violation. My reduction of the penalty from that proposed by the Secretary is primarily 

based on my consideration of the negligence of the operator and my consideration of the 

appropriateness of the penalty to the size of the business of the operator. 

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III. ORDER 

For the reasons set forth above, Citation No. 6588043 is MODIFIED to reduce the 

negligence of the operator to low. Albert Lee Yager doing business as Gravel Pit Company is 

ORDERED TO PAY the Secretary of Labor the sum of $500.00 within 30 days of the date of 

this decision.1 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Pamela F. Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202-5708 (Certified Mail) 

Albert Lee Yager, Owner, Gravel Pit Company 612 SW 10th Street, Madison, SD 57042 

(Certified Mail) 

RWM 

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. 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

MACH 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. 

MACH MINING, LLC, 

Respondent. 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

January 18, 2012 

: CONTEST PROCEEDINGS 

: 

: Docket No. LAKE 2009-395-R 

: Order No. 8414238; 03/13/2009 

: 

: Docket No. LAKE 2009-425-R 

: Order No. 8414249; 03/18/2009

:

: Mach #1 Mine 

: Mine ID No. 11-03141 

: 

: CIVIL PENALTY PROCEEDING

:

: Docket No. LAKE 2009-495 

: A.C. No. 11-03141-183828 

: 

: 

: 

: 

: Mach #1 Mine 

DECISION 

Appearances: Edward V. Hartman, Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner. 

Daniel W. Wolff, Crowell & Moring, LLP, Washington, DC, for 

Respondent. 

Before: Judge Manning 

These cases are before me on two notices of contest filed by Mach Mining, LLC, 

(“Mach”) and a petition for assessment of civil penalty filed by the Secretary of Labor 

(“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against 

Mach 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 cases involve two orders issued at the mine in 

March of 2009. The parties introduced testimony and documentary evidence at a hearing held in 

St. Louis, Missouri, and filed post-hearing briefs. Mach operates the Mach #1 Mine (the 

“mine”), a large underground coal mine in Williamson County, Illinois. The mine extracts coal 

in panels using a longwall system. 

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I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Inspector Bobby Jones has been employed by MSHA for almost four years. He currently 

works as a coal mine inspector out of the agency’s Benton, Illinois field office. Prior to joining 

MSHA, Jones worked for 28 years in the mining industry and held various positions, including 

laborer, equipment operator, supervisor, section foreman, and shift foreman. 

A. Order No. 8414238; LAKE 2009-395-R and LAKE 2009-495 

On March 13, 2009, Inspector Bobby Jones issued Order No. 8414238 under section 

104(d)(1) of the Mine Act for an alleged violation of 30 C.F.R. § 75.370(d). Order No. 8414238 

alleges the following: 

A proposed ventilation plan dated February 25, 2009 was 

implemented before it was approved by the district manager. The 

mine operator has mined over 1000 feet inby the location of the 

proposed set up rooms in headgate No. 3. The drawing titled 

“Ventilation Plan Map for future Longwall Operations” dated 

March 19th, 2006, which is part of [the] currently approved 

ventilation plan for this mine approved, on March 18, 2008, shows 

a six panel design with all six panels approximately 18,000 feet 

deep without any stair steps. 

The proposed ventilation plan addendum, panel 3 extension, was 

received by the MSHA District Manager on February 26, 2009. 

An acknowledgment letter dated February 26, 2009 was sent to the 

mine operator stating that approval by the district manager was 

required. The mine operator had been put on specific notice in 

several meetings and by other letters of this requirement. 

Jones determined that an injury was unlikely but, if an injury did occur, it could reasonably be 

expected to result in lost workdays or restricted duty. He determined that the violation was not 

of a significant and substantial (“S&S”) nature, that eleven persons would be affected, and that 

the violation was the result of high negligence on the part of the operator. The order was 

designated as an unwarrantable failure to comply with the mandatory standard. The Secretary 

has proposed a penalty of $2,161.00 for this violation. 

On May 15, 2009, I issued an order in LAKE 2009-395-R denying Mach’s motion for 

summary decision. In that order, I granted the Secretary’s motion for summary decision and 

found that the Secretary had established a violation of the cited standard; however, I reserved 

judgment on the issue of negligence and the appropriateness of the Secretary’s designation of 

this violation as an unwarrantable failure to comply with the mandatory standard. 31 FMSHRC 

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709 (May 2009).1 Consequently, I only address the negligence and unwarrantable failure issues 

with respect to Order No. 8414238 in this decision. 

1. Stipulations 

The parties entered into the following key stipulations with respect to this order: 

5. Mach began underground mining at the Mach No. 1 Mine in November 

2006. 

6. Order No. 8414238 was issued to Mach on March 13, 2009, pursuant 

to section 104(d) of the Federal Mine Safety and Health Act of 1977. 

7. As of the issuance date of Order No. 8414238, the method by which 

Mach was required to mine and ventilate its gate entries at the Mach No. 1 Mine 

under the mine’s MSHA-approved ventilation plan had not changed from the 

method described and/or illustrated in the mine’s ventilation plan approved by 

MSHA on March 18, 2008. 

8. MSHA Inspector Bobby Jones was aware of, or had access to, the 

miners, mine records, and other information concerning the status of Mach’s 

development in Headgate No. 3 from February 21 through March 13, 2009. 

9. Mach did not take any action preventing Inspector Jones from 

observing or becoming aware of the status of Mach’s development of Headgate 

No. 3 from February 21 through March 13, 2009. 

10. Mine Inspector Jones was aware that Mach began mining inby the 

location of the proposed setup room in Headgate No. 3 at least 7-10 days prior to 

the issuance of Order No. 8414238. 

2. Summary of Relevant Testimony 

Inspector Jones testified that before he conducts an inspection he looks at the mine’s 

maps. (Tr. 15). According to Jones, the mine had an approved mine map that reflected panels 

that were 18,000 feet long. (Tr. 16). While at the mine on January 15, 2009, however, Jones 

looked at one of the mine’s maps posted on a board and noticed that the map included 

projections that reflected panels longer than 18,000 feet. Id. The map showed projections going 

1

 At hearing, Mach once again raised the issue of the fact of violation. As I already 

addressed the fact of violation in my order of May 15, 2009 and in my order of June 29, 2009, 

denying Mach’s motion for reconsideration, I have not revisited this issue in this decision. My 

orders of May 15 and June 29 are hereby incorporated into this decision by reference. 

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beyond the existing line of setup rooms. At that particular time, the mine had not gone past the 

setup rooms and was still over 1,000 feet away from the 18,000 foot mark in Headgate No. 3. 

(Tr. 16-17). That same day, Jones had a conversation with Mike Skelton, the shift manager. 

Jones informed Skelton that the “mine file did not show a stair step or an extension of a panel, 

[and] that [Mach] would have to get approval from the district manager to change their 

ventilation system.” (Tr. 17-18). Jones had a similar conversation with Chris England, also a 

shift manager. (Tr. 18). Moreover, Jones testified that he believed that his own supervisor 

contacted Anthony Webb, general manger of the mine, the very next day and told him that 

district manger approval was required. (Tr. 19). 

In early March of 2009, while at the mine, Jones noticed that the same mine map now 

reflected that the mine had proceeded inby more than 18,000 feet in the No. 3 Headgate entries. 

(Tr. 20). Jones did not recall whether he traveled to the subject area of the mine that day. (Tr. 

21-22). At some point during the days following this observation, Jones contacted Danny 

Ramsey, the ventilation specialist in his office, who showed Jones emails between him and 

Mark Eslinger, the district’s ventilation supervisor. (Tr. 22, 44). Jones did not talk to Bob 

Phillips, the district manager for District 8, about this issue. (Tr. 42). After confirming that no 

change to the ventilation plan had been approved which would have allowed the mine to proceed 

beyond the 18,000 foot threshold, Jones traveled to the mine on March 13, 2009, to conduct a 

regular EO1 inspection and issued the subject order. (Tr. 20, 22-2, 454). Jones testified he 

believed that, based on conversations with Chris England, Mike Skelton, and others at the mine, 

it was the mine’s intention to develop the panel to 36,000 feet without first getting approval from 

MSHA. (Tr. 23, 44, 45). At hearing, Jones conceded that he had little knowledge of any 

conversations Mach’s managers may have had with MSHA officials about Mach’s plan to go 

beyond the 18,000 foot threshold in Headgate No. 3. (Tr. 46, 47). 

Jones testified that he had conversations with mine managers about the alleged poor 

quality of the roof in the area where the panels had been approved to end, i.e., at 18,000 feet, but 

he never offered any alternatives to the approved plan since he had worked at a mine that had 

similar roof conditions where there was no need for an alternative. (Tr. 20-21). According to 

Jones, the mine mentioned a number of different reasons for mining past the approved plan, 

including mining an additional 1,000 feet due to the mine roof stresses in the area, and as far 

36,000 feet to get into limestone. (Tr. 18-19). Jones was aware of a third party engineering 

firm’s recommendation to mine 1,000 feet past the approved plan in order to get into better roof. 

(Tr. 21). While Jones was concerned that mining past the 18,000 foot threshold would require 

the mine to alter its bleeder system, he agreed that, as of March 13, 2009, the mine had not 

affected the bleeder system by anything it had done on the Headgate No. 3 development section. 

(Tr. 45). The No. 3 Headgate entries were a dead end at that time and were not tied into the 

bleeders for the Nos. 1 and 2 Headgate entries. 

Jones determined that Mach exhibited high negligence and that the violation was the 

result of its unwarrantable failure to comply with the mandatory standard. (Tr. 23). He agreed 

that he did not confer with anyone else at MSHA about his high negligence and unwarrantable 

failure determinations. (Tr. 43, 56). Rather, he testified that he based his findings on his 30 

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years of mining experience, and on conversations with mine personnel. Jones had previously 

told mine management that a modification of the ventilation plan was required before the 

headgate entries could be extended beyond 18,000 feet and he made the company aware that it 

was his job to let them know that an approved plan was required. Jones testified that he was 

aware that three management officials, i.e., Webb, England, and Skelton, knew that the mine was 

mining past the approved plan. (Tr. 25). Jones testified that the mine was aware that it needed 

an approved plan, and that any change to the ventilation system required district manager 

approval. (Tr. 24). According to Jones, the mine exhibited aggravated conduct constituting 

more than ordinary negligence when it chose to continue mining “after being warned, or put on 

notice that . . . plan approval was required.” (Tr. 25). Jones testified that the violative condition 

was obvious. (Tr. 25). Jones found that the violation did not rise to the level of S&S or amount 

to an imminent danger. (Tr. 24-25). At no point during the issuance of the subject order did 

Jones ever have any dealings with district manager Phillips, and neither Ramsey nor Eslinger 

took part in any determination of whether to issue the violation as high negligence or 

unwarrantable failure. (Tr. 42-44). Jones acknowledged that reasonable people could disagree 

as to whether this alleged violation should have been issued as a 104(a) or 104(d). (Tr. 49). 

Further, he agreed that Mach believed that it was not violating the law. (Tr. 49-50). 

Anthony Webb testified for Mach. Webb is the general manager at the mine and is 

responsible for everything that goes on both underground and on the surface. (Tr. 72). Prior to 

becoming general manager in June of 2009, Webb was the Mine Superintendent. (Tr. 72, 108-

109). Webb has a bachelor’s degree in mining minerals engineering and foreman papers for 

West Virginia. (Tr. 73.) He began work in the coal industry in 1999. (Tr. 73). In 2005 he 

started working for Mach as a shift manager and had involvement in the design and development 

of the mine plans, including the ventilation plans. (Tr. 78). 

Webb testified that in November 2005, Mach began constructing the slope of the mine 

using conventional mining methods. (Tr. 75-76). In 2006, Mach intersected the coal seam, 

which was approximately 500 feet deep. (Tr. 76). In November of that year, Mach began 

bottom development and in the first quarter of 2007 it started driving the first longwall panel. 

(Tr. 76). The first panel was 18,000 feet in length and 1,250 feet in width. (Tr. 76). Mach 

began longwall mining Panel No. 1 in March of 2008. (Tr. 76). Since that time, the mine has 

completed two panels and, at the time of hearing, was almost done with Panel No. 3. (Tr. 76). 

Webb explained that the mine is ventilated by a push-pull system, with a fan that pushes 

air into the mine and an exhausting fan that pulls air out of the mine. (Tr. 76). Webb testified 

that the mine had two different types of ventilation plans, one for the development sections and 

other plans specific to each longwall panel. (Tr. 87). Webb explained that, with regard to the 

actual longwall mining, District 8 was approving a separate plan for each panel, while the 

development plan was one continuous plan. (Tr. 86-87). Webb stated that the development of 

the headgates was included in the original development section ventilation plan that the mine had 

been using since its approval during the development of the slope. (Tr. 88). 

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According to Webb, the mine was using a ventilation system that was different from the 

other mines in District 8. When the mine was first being developed, Mark Eslinger told Webb 

that he wanted to see a proposed map of the mine to give him an idea of how Mach was going to 

design the mine. (Tr. 78-79). Eslinger told Webb that he wanted the information early in the 

process so that he could become comfortable with the system. (Tr. 79). In response, Mach 

provided the March 19, 2006, ventilation plan map that was referenced in the subject order and 

was used during the construction of the slope. (Tr. 78; Ex. A Order of May 15, 2009). 

According to Webb, the mine did not consider the map to be part of the ventilation plan and 

submitted it as a courtesy because Eslinger had asked for it. (Tr. 79). Webb testified that the 

map showed six panels, approximately 18,000 feet in length, situated in a rectangular fashion. 

(Tr. 79-80). 

Webb explained that in the Illinois coal basin the geology is such that there is horizontal 

stress which can cause less than ideal roof conditions when the entries are directly perpendicular 

to the stress. (Tr. 83-34). The roof conditions in the setup entries that became the bleeders for 

the Nos. 1 and 2 panels were poor because of this stress. (Tr. 84-89). As a result, mine 

management talked to an outside engineering firm, Keystone Mining Services (“Keystone”), 

who conducted a roof control analysis and created a number of models for different scenarios as 

to how the mine could deal with the horizontal stress on Panel No. 3. (Tr. 92; Ex. R-4). Two 

scenarios Keystone evaluated were extending the panel to 19,000 feet or shortening it to 17,000 

feet. (Tr. 92-93). 

According to Webb, MSHA wanted the bleeders to be walked by the examiners so that 

they could look for mud, water, roof falls, or other adverse conditions. (Tr. 91). Because MSHA 

was pushing the mine to walk the bleeder entries, the mine felt that the only way it could do so 

safely was if they had a more reliable roof. (Tr. 90-91). In southern Illinois, limestone is the 

best roof that a mine can hope for. (Tr. 90). Extending the panel into limestone would improve 

the safety and health of both the miners that were developing the entries and the examiners that 

would eventually be walking the entries. (Tr. 102). Webb opined that, when an operator can 

keep miners from being exposed to bad roof, it should do so. (Tr. 102). 

Webb testified that Mach provided MSHA with a copy of the Keystone report on 

February 10, 2009, at a meeting in the Vincennes office where Bob Phillips, Kevin Stricklin, and 

Mary Jo Bishop were all present. (Tr. 94, 97, 135). Inspector Jones was not present at this 

meeting. Webb explained that Mach personnel reviewed the report with MSHA personnel and 

answered questions. (Tr. 95). During the meeting, Mach informed MSHA of its intent to extend 

Panel No. 3 to 19,000 feet to get the bleeder entries out of the area where horizontal stress had 

been identified on Panel Nos. 1 and 2. (Tr. 96, 135). Webb testified that any reference to 

“36,000 feet” was about Panel No. 4 and that the mine had learned that Panel No. 4 would need 

to be that long to get into a limestone area with good roof. (Tr. 93). Webb agreed that, as of 

February 10, 2009, he was not aware of any obligation to seek district manager approval for this 

change. District Manager Phillips did not say that an amended ventilation plan needed to be 

submitted or that the mine could not proceed until such approval was obtained. (Tr. 97, 109). 

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After Mach decided to extend Panel No. 3 an additional 1,000 feet inby to 19,000 feet, 

Keystone generated a second, more detailed report on February 23, 2009, that showed that the 

bleeder entries for Panel No. 3, if the panel were extended to 19,000 feet, would be in an area 

with a much lower stress level and, in turn, would have safer roof conditions. (Tr. 101-102; Ex. 

R-6). The bleeder entries under this plan would have a stair step configuration. At a meeting on 

February 24, 2009 in Vincennes, Mach provided MSHA with a copy of the February 23, 2009, 

Keystone report. (Tr. 96, 102). Webb testified that he and District Manager Phillips were at the 

meeting and he thinks that Mary Jo Bishop, Mike Renni and Mark Eslinger were there. (Tr. 102-

104 ). According to Webb, Eslinger was the ventilation supervisor in the Vincennes, office, 

while Renni was the Benton, Illinois, field office supervisor. (Tr. 103). During the meeting, 

Mach informed the MSHA personnel that the mine had gone past the 18,000 foot mark and that 

it planned to go all the way to the limestone, then back up to the 19,000 foot mark and cut the 

bleeder entries for Panel No. 3 at that point. (Tr. 103). According to Webb, at the end of the 

meeting Phillips told Webb and the former general manager of the mine, Richard “Pete” 

Hendrick, that “it shouldn’t be a problem.” (Tr. 104). Phillips requested a map of the new stair 

step design of the bleeder entries, but did not say anything about approval being needed to 

develop beyond the 18,000 foot mark in Headgate No. 3. (Tr. 96, 103, 104). Mach provided the 

requested map to MSHA and Phillips on the February 25, 2009. (Tr. 96, 104; Ex. R- 7). Webb 

testified that he did not believe that the map he submitted was part of a plan but thought it was a 

courtesy to Phillips. (Tr. 105, 136). He explained that, if it had been a plan submittal, the cover 

letter would have been different. (Tr. 105). Webb agreed that a February 26, 2009 letter from 

Bob Phillips to him was in response to the map that Mach had provided to MSHA on February 

25th, and that the letter stated that “[a]pproval by the District Manager is required and, action is 

being started to determine that this plan meets criteria for approval.” (Tr. 138); Ex. PE-7. Webb 

understood the letter to mean that approval was needed before the mine connected Headgate No. 

3 into the Headgate No. 2 bleeder system. (Tr. 139, 156). 

Webb testified that Inspector Jones was the regular inspector at the mine around this 

time. (Tr. 97). Webb acknowledged that the first time the mine went past the 18,000 foot 

threshold in Headgate No. 3 was on February 21, 2009. (Tr. 97). He testified that Jones was at 

the mine on February 23, 2009 and traveled to Headgate No. 3 for the first time on February 24, 

2009. (Tr. 98-99). Webb stated that Jones did not mention anything as far as needing any kind 

of approval when Jones was at the face of Headgate No. 3 on the 24th. (Tr. 99). 

Webb agreed that MSHA District 8 required additional approval every time a new 

longwall panel was mined. (Tr. 99). Further, he agreed that, as of March 13, 2009, the mine 

could not complete development of Panel No. 3 and begin longwall mining without additional 

approval. (Tr. 99-100). He knew that additional approval was necessary before the mine could 

connect the No. 3 Headgate entry to the active bleeder system for Panel Nos. 1 and 2. (Tr. 100, 

155). However, it was his understanding that developing the headgate beyond the threshold was 

never something that had been regulated and required approval. (Tr. 88, 155). According to 

Webb, the mine had taken none of the steps that would have required additional approval. (Tr. 

101). 

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Webb testified that the mine had been developing Headgate No. 3, but as a result of the 

subject March 13, 2009 order, the mine had stopped development. (Tr. 82). Webb explained 

that, while Panel No. 1 had been 18,000 feet in length, Panel No. 2 was actually 18,200 feet, i.e., 

longer than Panel No. 1. (Tr. 82, 106; Ex. R-2). The extended development of Panel No. 2 was 

done to “gain access to the bleeder entries behind” Panel No. 1. (Tr. 82). He further explained 

that, at the time, the mine was not required to physically walk the bleeders in Panel No. 1. (Tr. 

82). When the mine began Panel No. 2, MSHA asked if the mine could drive new entries 

because the entries behind Panel No. 1 were deteriorating. (Tr. 82-83). As a result, the mine 

started to drive two new entries, but, due to the roof conditions behind Panel No. 2, the mine 

abandoned the plan. (Tr. 83). According to Webb, the mine told MSHA about this and MSHA 

was aware that the mine had gone a bit further than 18,000 feet with Panel No. 2. (Tr. 83, 106). 

Mach never received a citation or order for going beyond 18,000 feet with Panel No. 2. (Tr. 83, 

106). In March or April of 2010, MSHA approved the stair step design for the bleeders and 

Mach began mining Panel No. 3. (Tr. 122). 

Webb testified that Mike Skelton was the shift manager at the mine in February and 

March of 2009. (Tr. 106-107). Webb talks to Skelton on a daily basis and Skelton never told 

Webb that Bob Phillips or any acting district manager was requiring plan submission and 

approval for the mine to go beyond 18,000 feet in Headgate No. 3. (Tr. 107-108). 

On cross-examination Webb testified that the February 4, 2009, letter from Mary Jo 

Bishop to him did not put the mine on notice that approval was needed before the mine went past 

the 18,000 foot mark in Headgate No. 3. (Tr. 132; Ex. PE-4). Moreover, Bishop was at the 

February 10, 2009, meeting in Vincennes, discussed above, and Webb knows that the letter was 

discussed, yet no one from MSHA made any mention about plan submission or approval being 

required to go past 18,000 feet. (Tr. 132). Webb agreed that the stair step would have to be 

approved before cutting into the bleeder system. (Tr. 134) 

3. Parties’ Arguments 

i. Secretary of Labor 

The Secretary argues that Mach’s violation of section 75.370(d) “clearly meets the 

standard for unwarrantable failure to comply with [the] mandatory standard.” Sec’y Br. 8. 

Specifically, the Secretary asserts that Mach engaged in “aggravated” conduct as evidenced by 

the presence of three aggravating factors. Id. 

First, Mach had knowledge of the existence of the violation. Mach’s assertion that it did 

not know of the requirement to get district approval or, in the alternative, that it had already 

obtained approval, before mining the additional 1000 feet, is not supported by the evidence. Id. 

Inspector Jones had multiple conversations Mach officials regarding the need to obtain district 

approval and Webb’s testimony that the mine had not been told about the need to obtain 

approval is contradicted by a February 4, 2009, letter from MSHA to the mine. Id; Ex. PE-4. 

Moreover, any approval that Mach alleges having been given is contradicted by three letters, 

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dated February 26, 2009, March 13, 2009, and March 18, 2009, in which the district manager 

never approved Mach’s projected plan. Id; Ex. PE 7, PE-16 & PE-17. In spite of the fact that 

Mach was provided with clear notice that district manager approval was necessary before Mach 

mined beyond the approved plan, the mine intentionally and knowingly proceeded without such 

approval. Sec’y Br. at 9. 

Second, the Secretary asserts that the violation was obvious. Mach’s approved 

ventilation plan was a six panel design, with each panel stretching to 18,000 feet. Id. Inspector 

Jones was made aware of the mine’s decision to mine past the 18,000 foot mark on January 15, 

2009, when he viewed the mine’s map. Id. The subject order was issued on March 13, 2009. 

Roughly a week and a half before issuing the order, Jones saw on a map that Mach had already 

gone past the 18,000 foot mark. Id. Mach management was aware that mining operations had 

extended beyond the approved map. Id. Despite verbal and written warnings that district 

approval was necessary, “Mach simply ignored the notice and willfully chose to proceed with its 

plan anyway.” Id. 

Third, the violation had existed for at least seven to ten days. Mach stipulated that 

Inspector Jones was aware that Mach began mining inby the proposed setup room in headgate 

No. 3 at least seven to ten days prior the issuance of the subject order. Id. at 9-10. By the time 

Jones issued the order, the mine had advanced approximately 1,000 feet. Id. at 10. As such, 

“Mach’s violative conduct was knowingly being continued for approximately 7-10 days.” Id. 

ii. Mach Mining 

Mach argues that it “had a genuine, good-faith belief in the legality of its actions, and did 

not exhibit the type of ‘knowing’ or ‘aggravated conduct’ that constitutes an unwarrantable 

failure to comply with [the] mandatory standard” and that it did not act with high negligence. 

Mach Br. 15. Mach asserts that this case presents an issue of “first impression involving a 

legitimate dispute over the interpretation of the Secretary’s ventilation plan standard” and that 

“there is no evidence to suggest that Mach was acting with indifference or a lack of reasonable 

care.” Id. at 16. The Secretary failed to present evidence that Mach’s view of the situation “was 

not well-intentioned and genuine.” Id. Moreover, Inspector Jones’ own testimony conceded that 

“he did not think Mach subjectively thought it was violating the law, . . . and he agreed that 

another inspector might well have written the paper as a § 104(a) citation.” Id. 

Mach points out that it had not been cited on Panel No. 2 when it mined approximately 

200 feet past the 18,000 foot projection and it argues that the mine had fully informed the 

Secretary of its intention to mine beyond the 18,000 foot projection on Panel No. 3. Id. at 16-17. 

Mach’s action of developing Panel No. 3 beyond the 18,000 foot mark was based upon the 

recommendation of an outside engineering group that suggested that further development would 

help to avoid the poor roof conditions that the mine had experienced in the setup entries of Panel 

Nos. 1 and 2. Id. at 17. Despite providing the Secretary, multiple times, with notice of its intent 

to mine beyond the 18,000 foot mark, no one at MSHA ever told Mach that it could not proceed 

as planned and, instead, MSHA only asked for an “updated map (or projection).” Id. Further, 

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Mach also notified MSHA after it had mined past the 18,000 foot mark in Headgate No. 3, yet no 

one at MSHA mentioned anything about the need to obtain district manager approval. Id. 

Rather, District Manager Phillips simply requested a depiction of what Mach was doing at the 

time. Id. That depiction was provided the following day. Id. 

Mach argues that Inspector Jones’ testimony is of little value, while Webb’s testimony 

substantiates the information set forth in Hendrick’s supplemental declaration. Id.; see Hendrick 

Declaration related my order of May 15, 2009. According to Mach,“this Court, in denying the 

Secretary’s motion for summary decision on the issue of unwarrantable failure, stated that if the 

assertions stated in the Hendrick supplemental declaration were true, it would be ‘unlikely’ the 

Court would uphold the unwarrantable failure allegation.” Id. (citing May 15th Order at 7). 

Mach argues that the Secretary has known for over one and one half years prior to hearing 

“exactly what Mach’s position in opposition to the unwarrantable failure allegation was” and, 

despite it making its intentions known to MSHA at a number of meetings with MSHA officials, 

the Secretary has only called one witness “who has no knowledge, personal or even indirect, 

about the primary subject matter of [Hendrick’s] declaration,” i.e., what was made known to 

MSHA at the subject meetings regarding Mach’s planned development of Panel No. 3 to 19,000 

feet. Id. at 18. Based on such, Mach argues that Webb’s testimony is compelling given that the 

Secretary called no witnesses to rebut Webb’s testimony as to the “truth and accuracy of Mach’s 

characterization of what was said (and not said) in those meetings.” Id. 

Further, Mach argues that the February 4, 2009, letter from District Manager Phillips to 

Mach can be “reasonably interpreted by Mach to mean nothing than that Mach was required to 

obtain MSHA approval (1) prior to mining through from Panel 3 into the Panel Nos. 1 and 2 

bleeder ventilation current; and (2) prior to commencing longwall mining on Panel 3.” Id. at 20. 

Finally, Mach argues that the February 26, 2009, letter from Phillips to Mach was nothing more 

than a reminder that Mach did not yet have ventilation plan approval for longwall mining Panel 

No. 3. Mach Br. at 21; Ex. PE-7. 

4. Unwarrantable Failure and Negligence 

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

serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the 

Commission determined that unwarrantable failure is aggravated 

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

Unwarrantable failure is characterized by such conduct as 

“reckless disregard,” “intentional misconduct,” “indifference,” or a 

“serious lack of reasonable care.” Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also 

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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 of the 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 

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

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

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

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

Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, 

Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts 

and circumstances of each case must be examined to determine if 

an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Consol, 22 FMSHRC at 353. Because 

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

factor supporting an unwarrantable failure determination is the 

involvement of a supervisor in the violation. REB Enters., Inc., 20 

FMSHRC 203, 225 (Mar. 1998). 

I find that, for the reasons set forth below, Mach did not engage in aggravated conduct 

constituting more than ordinary negligence and that the violation was improperly designated as 

an unwarrantable failure to comply with the mandatory standard. At the outset of this discussion 

it is important to note that I found both Inspector Jones and Mr. Webb to be credible witnesses. 

Based on the credible testimony of both witnesses, I find that the parties were not on the same 

page when discussing what was necessary for Mach to comply with the cited standard. As a 

result, Mach unintentionally failed to obtain approval before proceeding beyond the 18,000 foot 

mark in Headgate No. 3, thereby violating the standard. 

Two of the potential aggravating factors that must be addressed in an unwarrantable 

failure analysis are “whether the operator has been placed on notice that greater efforts are 

necessary for compliance” and “the operator’s knowledge of the existence of the violation.” 

While the Secretary argues that she clearly put the mine on notice of its responsibility to obtain 

approval before mining beyond 18,000 feet in Headgate No. 3, Mach argues that it had a good 

faith belief that it was not violating the cited standard when it proceeded to develop Headgate 

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No. 3 beyond the 18,000 foot mark. I credit the testimony of Webb, who explained that Mach 

believed that approval was only needed before connecting to the bleeder systems of Panel Nos. 1 

and 2 and before beginning longwall mining of Panel No. 3. In crediting his testimony, I note 

that the Secretary alleges that a letter sent by MSHA to Mach and the statements of MSHA 

personnel to Mach personnel, put mine management on notice of the requirement to obtain 

approval before proceeding inby the 18,000 foot mark in Headgate No. 3. However, the 

evidence is not as clear and convincing as the Secretary represents. 

There were statements made by officials in face-to-face meetings and in written 

correspondence from MSHA regarding the need to obtain approval before extending Panel No. 3 

beyond the 18,000 foot mark. However, Mach reasonably and in good faith believed that such 

statements were made with respect to the need to obtain approval before connecting the subject 

Headgate No. 3 entries to the Panel Nos. 1 and 2 bleeder systems and before mining the subject 

panel. After all, the February 4, 2009, letter to Webb, states that “[f]ailure to obtain approval 

before making changes to the bleeder design could be cause for enforcement action to be taken.” 

(Ex. PE-4). Inspector Jones admitted that nothing that the mine had done as of the date of 

issuance of the order had affected the bleeder system. I find Webb’s interpretation of the 

February 4, 2009, letter and his interpretation of what he was told by MSHA personnel, to be 

reasonable in the context of this unwarrantable failure analysis. Moreover, the fact that Mach, 

without incident, proceeded to develop beyond the approved 18,000 foot threshold in Panel No. 

2 lends credence to Webb’s claim as to what the mine believed it was allowed to do. Mach’s 

belief, while mistaken, explains the mine’s view that it had no knowledge of the existence of the 

violation and, likewise, that it was not on notice that greater efforts were needed for compliance. 

I agree with Mach and I find these two factors to weigh in its favor. 

It is undisputed that Mach proceeded beyond the 18,000 foot mark in Headgate No. 3. I 

have already found that, in doing so, Mach violated the cited standard. I credit Webb’s 

testimony that the mine first advanced beyond the 18,000 foot mark in Headgate No. 3 on 

February 21, 2009. The subject order was issued on March 13, 2009, with the result that the 

violative condition existed for approximately twenty days. While the condition existed for that 

period of time, Mach’s Inspector log shows that Inspector Jones was at Headgate No. 3 on 

February 24th. (Ex. R-5). Further, Inspector Jones himself admitted that some time passed 

between the time he claims to have first noticed the violation, i.e., “early” March, and the time 

he issued the order, i.e., March 13th. As a result, given my finding that the mine had a good 

faith belief that it was not in violation of the cited standard, the length of time that the condition 

existed is not helpful in establishing whether the violation was the result of the mine’s 

unwarrantable failure to comply with the mandatory standard. 

With regard to the obviousness of the violation, I agree with the Secretary that the cited 

“condition” was obvious. However, when looked at in the context of my above finding 

regarding the mine’s good faith belief that it was in compliance with its ventilation plan, I find 

that the “violation” was not obvious. 

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Inspector Jones issued the subject order as non-S&S and unlikely to result in an injury. If 

an injury did occur, he determined it would result in lost workdays or restricted duty. There is 

no evidence in the record to demonstrate that the condition created by this particular violation 

posed a danger to miners. The No. 3 headgate entries were being ventilated in accordance with 

the mine’s approved ventilation plan as these entries were developed. Once the subject order 

was issued, the mine ceased mining these entries. While not of consequence to this analysis, I do 

note that, per the undisputed testimony of Webb, the changes made to the ventilation system and 

panel design that are the subject of this order were approved by MSHA in early 2010. (Tr. 122). 

Based on my above findings, I agree with Mach that it had a legitimate, good faith, albeit 

incorrect, belief that mining beyond the 18,000 foot mark in Headgate No. 3 was not in violation 

of the mandatory standard. It boils down to a question of when MSHA’s approval was required, 

at the time the entries were driven beyond 18,000 feet or at the time these entries were connected 

into the existing bleeder system. Given the facts presented, and in consideration of the potential 

aggravating factors discussed above, I hold that Mach’s actions did not demonstrate aggravated 

conduct constituting more than ordinary negligence. Its conduct did not rise to the level of 

“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable 

care.” Rather, the violation seems to be the product of a lack of clear communication between 

MSHA and Mach which resulted in Mach’s misinterpretation of what was required for 

compliance with the mandatory standard. I find that given this good faith misunderstanding, 

Mach’s negligence was low. Consequently, I MODIFY the subject order to a 104(a) citation 

with low negligence. I affirm the Secretary’s low gravity findings. A penalty of $100.00 is 

appropriate for this violation. 

B. Order No. 8414249; LAKE 2009-425-R and LAKE 2009-495 

On March 18, 2009, Inspector Bobby Jones issued Order No. 8414249 under section 

104(d)(1) of the Mine Act for an alleged violation of 30 C.F.R. § 75.370(d). Order No. 8414249 

alleges the following: 

An 18 inch shaft was drilled from the surface into the active 

bleeder system on March 11, 2009, in the No. 2 entry at No. 190 

crosscut in the No. 1 tailgate prior to a plan being submitted and 

approved by the District Manager. This shaft is to be used to place 

remote monitoring devices into the bleeder system as an alternative 

method to determine the effectiveness of the bleeder system. 

Jones determined that an injury was unlikely, but, if an injury did occur, it could reasonably be 

expected to result in lost workdays or restricted duty. He determined that the violation was not 

S&S, that ten persons would be affected, and that the violation was the result of high negligence 

on the part of the operator. The order was designated as an unwarrantable failure to comply with 

the mandatory standard. A penalty of $2,161.00 was proposed by the Secretary. For the reasons 

that follow, I VACATE the order. 

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1. Stipulations 

The parties entered into the following key stipulations with respect to this order: 

11. Order No. 841429 was issued to Mach on March 18, 2009, pursuant 

to Section 104(d) of the Federal Mine Safety and Health Act of 1977. 

12. The borehole referenced in order No. 8414259 was not included in the 

Mach No. 1 Mine ventilation plan of March 18, 2008. 

13. Regarding the borehole referenced in order No. 8414259, Mach and 

District 8 discussed – prior to it being drilled – the use of such a borehole as a 

potential alternative means of evaluating the effectiveness of the bleeder system 

by remote monitoring in the event that access to the bleeder evaluation points 

could not be maintained, but remote monitoring through the referenced borehole 

was never required or incorporated into Mach’s ventilation plan. 

2. Summary of Relevant Testimony 

Inspector Jones testified that, on February 24, 2009, while at the mine conducting an 

inspection, he had a conversation with Morris Niday, a miners’ representative who was a 

warehouse and surface supervisor at the mine. (Tr. 28). During the conversation, Jones learned 

that Mach had begun to bore a 18-inch diameter hole from the surface into the mine’s bleeder 

system. (Tr.27-28). Jones traveled to the surface to inspect the hole and, after meeting with his 

own supervisor and speaking with Jim Slapak, the mine’s senior engineer, Jones determined that 

the hole had not yet penetrated into the bleeder system and was, instead, approximately 10 feet 

from doing so. (Tr. 28-29). To Jones’ recollection, the hole was not marked on any maps at that 

particular time. (Tr. 29). Jones testified that, based on his training and experience, the mine had 

not yet committed a violation because the it had not yet changed the ventilation system; 

however, he informed Slapak that, prior to punching the hole through the roof of the mine, Mach 

would need to obtain an approved plan that included the borehole. (Tr. 29-30). Jones could not 

recall if he spoke with Webb on February 24th about the borehole. (Tr. 30). Jones did 

acknowledge that he was aware that there had been discussions between MSHA and Mach about 

a borehole but, before February 24, he was not aware that the mine had actually begun drilling 

the hole. (Tr. 29). 

Jones testified that subsequently, on or around March 16, 2009, while conducting an EO1 

inspection at the mine, he learned that the mine had completed the hole and punched through 

into the bleeder system. (Tr. 30). During the inspection that day, he did not travel to the area 

where the hole had punched through the mine roof. (Tr. 31). That evening, along with Webb, 

Jones did go to the location where the hole exited the mine on the surface. (Tr. 31). The hole on 

the surface was uncapped and air was coming out of the mine through the hole. (Tr. 32). 

According to Jones, Webb stated that the mine had completed the hole and punched through on 

March 11th. (Tr. 32). Jones testified that he had conversations with Webb on March 16th and 

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17th during which he learned that, while Webb was not sure exactly when on March 11 the hole 

had been completed, it was more than likely that miners were underground at the time, and the 

supervisors were aware that the hole was being drilled. (Tr. 34; Ex. PE-19). According to 

Jones, there were approximately ten to eleven miners underground in the general area. (Tr. 34). 

Jones acknowledged that the air readings he took in the area did not show anything out of the 

ordinary. (Tr. 35). 

On March 18, 2009, Jones returned to the mine and issued the subject order. (Tr. 32). 

He explained that it took him two days after March 16 to issue the order because he wanted to 

check to see if a more recent ventilation plan that included the borehole had been approved. (Tr. 

32). Jones did not find such a plan, but he testified that if one had existed he would not have 

found a violation. (Tr. 32). 

 Jones testified that he determined that the borehole was a violation of the mandatory 

safety standard because it “had the potential to alter the air flow in the bleeder system[,]” but 

acknowledged that the only evidence that the air current had been altered was the air coming out 

of the hole on the surface. (Tr. 36, 52). Further, he testified that the bleeder system is part of the 

air course. (Tr. 54). During cross-examination, Jones had the following exchange with counsel 

for Mach: 

Q.	 (Counsel for Mach) You’re not aware of any evidence, are 

you, sir, that when they punched through on March 11th, 

2009, that they changed the ventilation system to alter the 

main air current, or a split of the main air current in a 

manner that could materially affect the safety and health of 

the miners? Would you agree that they didn’t do that on 

March 11th, 2009? 

A.	 (Jones) I can’t say if they did, or they didn’t. The potential 

was there. I don’t know if they did, or not. 

. . . 

Q.	 Would you agree with me that you are not aware of the 

main air current, or any split of the main air current having 

been altered by their punching through on March 11th, 

2009? 

A.	 I have no way of knowing if it had been altered. 

Q.	 But would you agree with me that you don’t have any 

evidence showing that it was altered? 

A.	 I have no evidence showing that it was altered. 

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Q.	 And you also don’t have any evidence of, would you agree 

with me, that there was any dangerous or combustible level 

of methane in the bleeder when they punched through? 

A.	 No, I have no evidence at that time that there was any 

there. 

(Tr. 52-53). To his knowledge, the borehole had never been incorporated into the ventilation 

plan for purposes of evaluating the effectiveness of the bleeder system. (Tr. 55, 59-60). Jones 

found that the cited condition was not an imminent danger since it already existed and nothing 

had gone wrong to that point. (Tr. 36). Jones determined that an injury was “unlikely” given 

that nothing occurred when Mach holed through into the bleeder. (Tr. 51). Further, he found 

that the condition was not S&S. (Tr. 36). 

Jones issued the violation as a 104(d) order and determined that it was the result of 

Mach’s high negligence and unwarrantable failure to comply with the mandatory standard 

because both he and the MSHA field office supervisor, Mike Renni, had informed Mach that 

district manager approval was necessary before the mine drilled through the mine roof. (Tr. 35-

37, 51). By failing to obtain such approval, Mach exhibited aggravated conduct constituting 

more than ordinary negligence. (Tr. 37). Jones opined that the condition was obvious and that, 

to his knowledge, Slapak, Webb, Chris England, a shift manager, and Mike Skelton, another 

shift manager, were all aware that the borehole was being drilled and that the drill had punched 

through the mine roof from the surface. (Tr. 37). Jones agreed that he did not confer with any 

other MSHA personnel about issuing the order as high negligence or an unwarrantable failure to 

comply. (Tr. 51, 56). Jones acknowledged that reasonable people could disagree as to whether 

this alleged violation should have been issued as a 104(a) or 104(d). (Tr. 55). Further, he agreed 

that Mach believed that it was not violating the law. (Tr. 55-56). 

Anthony Webb testified that it takes approximately two weeks to drill a borehole from 

the surface into the mine. (Tr. 110). The borehole at issue is an 18-inch case hole that was wetdrilled from the surface into the mine. (Tr. 114-115). Wet-drilling kept the hole filled with 

water so that the drill tailings floated to the top of the hole. (Tr. 114-115). Once the hole was 

within 10 feet of the mine roof, a casing was installed to prevent the hole from caving in. (Tr. 

114-115). The casing was then grouted to prevent water from continually entering the mine via 

the wall of the hole. (Tr. 114-115). Subsequently, the remaining 10 feet of the borehole were 

drilled out and a certain amount of water used in the wet-drilling process entered the mine from 

the column above. (Tr. 115). In this particular case, the 18-inch wide borehole, which was 

approximately 600 feet deep, reached the bleeder in the mine on March 11, 2009. (Tr. 110-

111). 

Webb explained that Jim Slapak was in charge of the drilling operation and took care of 

the surface surveying. (Tr. 116). Webb was not aware of any precautions taken by Slapak 

during the drilling of the hole besides drilling with water and making sure that there were no 

miners in the area when the drill punched through into the mine. (Tr. 116). Miners would not 

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have been any closer than 4,000 feet from the area where the hole punched through. These 

miners were working at the face on Panel No. 2. (Tr. 117). A spark or ignition during the 

punch through was very unlikely given the water surrounding the drill bit. (Tr. 118). Even if 

there were a spark, the area of the punch through was well rock-dusted and the methane readings 

were “ less than one [percent].” (Tr. 118). According to Webb, methane only becomes a 

problem “between 5 and 15 percent.” (Tr. 120). 

Around the time that the borehole was punched through, Mach was involved in a dispute 

with MSHA over whether the bleeders in Panel No. 2 should be walked by the examiners. (Tr. 

116-117). The ventilation plan submitted by Mach established bleeder evaluation points that 

were outby the bleeder entries. (Tr. 125-127). At the insistence of MSHA, the preshift 

examiners began walking the bleeders. (Tr. 116-117, 141). As a result of that dispute, the 

general area was being preshifted at the time of the order; however, the specific area of the 

borehole was not being preshifted because it was not necessary. (Tr. 118-119, 146; Ex. R-8). 

Prior to the dispute, Webb testified that, during the February 2009 meetings in Vincennes, the 

same meetings discussed supra in the context of Order No. 8414238, there was a discussion 

between Mach and MSHA about potential alternative means for the mine to evaluate the bleeder 

system. (Tr. 111). Inspector Jones was not present during the discussions. (Tr. 112, 121). 

Webb testified that, at the meetings, Mach expressed that it was not safe to have miners walking 

the bleeders and, in response, MSHA personnel mentioned the possibility of using remote 

monitoring through boreholes. (Tr. 111). At no point during the meetings did the district 

manager, or anyone else, say that approval was needed before drilling the borehole into the mine. 

(Tr. 121, 142). As a result, Mach decided to start drilling the borehole. (Tr. 111). According to 

Webb, it takes approximately two weeks to drill a borehole from the surface into the mine, so 

Mach wanted to have the holes in place if it chose to go down the path of remote monitoring. 

(Tr. 111). Drilling the hole ahead of time would allow the mine to avoid shutting down for two 

weeks while MSHA decided if it wanted the mine to use remote monitoring. (Tr. 111, 141). 

Webb testified that two 12.5 foot diameter bleeder shafts were located less than 200 feet 

from where the borehole entered the mine. (Tr. 113-114). The air flows from the active 

longwall face toward the bleeders. (Tr. 117-118). Further, the borehole was never actually used 

for the purpose of evaluating the effectiveness of the bleeder system and was never incorporated 

into the ventilation plan. (Tr. 112). Webb agreed that, had the mine used the hole for purposes 

of evaluating the effectiveness of the bleeder system, then it would have needed to obtain 

approval before doing so. (Tr. 158-159). According to Webb, the addition of the borehole did 

not alter the main air current in a manner that would have affected the safety and health of 

miners. (Tr. 113). He based this determination on his “engineering background and common 

sense . . . that an 18-inch borehole that is less than 200 feet from two 12-and-a-half foot holes, 

with a bleeder fan on top of them, that’s sucking like crazy, is not going to materially affect the 

ventilation” and the fact that the mine had no measurements to indicate that the current had been 

altered. (Tr. 113-114). Moreover, according to Webb, the borehole did not affect any of the 

requirements of section 75.371. (Tr. 112-113). 

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3. Parties’ Arguments 

i. Secretary of Labor 

The Secretary argues that Mach violated section 75.370(d) when it drilled a borehole into 

its bleeder system without first obtaining the written approval of the district manager. Sec’y Br. 

11-12. Mach not only failed to argue that the borehole did not create any change in the 

information required by section 75.371, the mine actually admits that, “‘had it incorporated this 

borehole into its ventilation plan, it would have been required to obtain district manager approval 

in advance.” Sec’y Br. 12 (citing Mach Statement). Mach cannot admit that, on one hand, had 

the borehole become necessary, it would have required MSHA approval, while on the other, had 

the borehole not been necessary, it would be “free to drill at will.” Sec’y Br. 13. The borehole, 

whether used or not, was “a proposed method of enabling monitoring of the bleeder system and 

thus, its inclusion into the plan would be required by [30] C.F.R. § 75.371.” Id. The Secretary 

argues that the Mine Act “is to be liberally construed in light of the prime purpose of the 

legislation.” Id. It is necessary for a mine operator to seek and gain approval of any ventilation 

plan “deviation or modification” before it implements such, even if the operator is “acting [with] 

. . . a sincere belief that its actions [are] justified.” Id. 

ii. Mach Mining 

Mach argues that Order No. 8414249 should be vacated. Mach drilled the borehole in 

advance of actually needing it in order “to hedge against the possibility that, without it, the mine 

would be shut down for several weeks if there were no other means to evaluate the effectiveness 

of the bleeder system.” Mach Br. 21. The Secretary’s regulations do not require that an operator 

obtain district manager approval before drilling a borehole and, “[r]ather, boreholes are only 

required to be approved before they are actually put to use in some functional way.” Id. at 22. 

According to Mach, the Secretary confuses the “right of an operator to drill a borehole (which 

does not require approval) with the requirement of the operator to obtain approval if a borehole 

is adopted as part of its ventilation plan (which is required when, inter alia, the hole is used to 

facilitate an alternative method of evaluating the effectiveness of the bleeder system).” Id. at 24 

(internal citation omitted). 

“[T]here is no dispute that the borehole was never incorporated into Mach’s ventilation 

plan, for bleeder evaluation or any other purpose.” Id. at 23. Further, there is no evidence that 

Mach’s actions “altered the air current in a manner that materially affected the safety or health of 

its miners.” Id. Furthermore, “Mach did not make any changes to the content of its ventilation 

plan.” Id. 

Mach argues that the “requirements of section 75.371 are for informational purposes” and 

are “not design or performance standards.” Id. at 24. Section 75.370(d) is the applicable 

standard requiring approval if the “operator plans to make an intentional change in the air current 

that could materially affect the health or safety of the miners.” Id. Here, Mach made no such 

changes and MSHA has failed to offer any evidence that the air current was changed. Id. 

34 FMSHRC Page 215

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Moreover, Mr. Webb credibly testified that it was “unthinkable as a matter of common sense that 

an 18" borehole could alter mine ventilation in a way that would have a material effect on the 

health or safety of miners, especially when [such hole was] so close to the mine’s two bleeder 

exhaust shafts through which mine air exited the mine, pulled by the exhausting fan.” Id. at 24-

25 (internal footnote omitted). 

Finally, Mach argues that the March 5, 2009, letter from MSHA to Mach says “nothing 

about needing approval to drill the hole. . . .” Id. at 25. According to Mach, it “was fully aware 

of its responsibility, per 30 C.F.R. § 75.371(z), to obtain district manager approval in advance of 

actually using the borehole in its ventilation plan as part of an alternative method of evaluating 

the effectiveness of its bleeders.” Id. However, the “possibility of using the borehole to 

facilitate an alternative method did not mandate that Mach seek prophylactic approval to drill the 

hole.” Id. (emphasis in original). 

4. Discussion 

Section 75.370(d) reads as follows:

 No proposed ventilation plan shall be implemented before it is 

approved by the district manager. Any intentional change to the 

ventilation system that alters the main air current or any split of the 

main air current in a manner that could materially affect the safety 

and health of the miners, or any change to the information required 

in § 75.371 shall be submitted to and approved by the district 

manager before implementation. 

30 C.F.R. § 75.370(d). 

This particular standard involves three separate directives. First, the mine operator is 

restricted from implementing a proposed ventilation plan, or in this case a plan revision, before 

that plan is approved by the district manager. In this instance, the proposed revision of the plan 

involved a potential change in the method of monitoring the effectiveness of the bleeder system. 

Specifically, Mach, and apparently MSHA, were evaluating the possibility of utilizing remote 

monitoring of the bleeder system via a borehole. While it is undisputed that a borehole was 

drilled from the surface into the mine bleeders, I find that the proposed revision to the method of 

monitoring the bleeders had not been implemented by Mach and, as such, it was not necessary to 

obtain the district manager’s approval before drilling the borehole. 

Mach’s proposed revision, as pertinent to this case, addressed the means for determining 

the effectiveness of the bleeder system and any alternative methods of evaluation. The standard, 

by its plain language, would seem to require that the proposed change be “implemented” before 

approval in order for a violation to be found. In my order of June 29, 2009, which addressed the 

fact of violation in the context of Order No. 8414238, I found that “there [was] much more than 

a ‘potential’ that Mach [would] need to redesign its bleeder entries to accommodate the new 

34 FMSHRC Page 216

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panel configuration[,]” and, as such, there was a violation of the standard. Order at 2. Here, the 

situation is much different. While the potential existed that Mach would change the means for 

determining the effectiveness of the bleeder system, it was nothing more than that; it was a 

“potential” or “possible” change. Mach had not begun to evaluate the effectiveness of the 

bleeders by way of the borehole, and drilling the borehole did not necessitate a change. Instead, 

as Mach has pointed out, drilling the borehole simply hedged against a potential shutdown in the 

event Mach did in fact implement remote monitoring of the bleeder system via the borehole after 

obtaining MSHA approval to do such. While drilling the borehole may have been an initial step 

toward such a change, it does not amount to implementing such a change. I credit both Jones’ 

and Webb’s testimony that the borehole was never actually used as a means for monitoring the 

effectiveness of the bleeders and, accordingly, I find that it was never implemented into the 

mine’s ventilation plan. Instead, Mach continued to evaluate the bleeder system by its earlier 

approved methods. For the above reasons, I find that the drilling of the borehole did not amount 

to implementation of a proposed revision to the ventilation plan and, therefore, did not run afoul 

of the requirement that Mach obtain district manager approval. 

In order for the Secretary to succeed in proving a violation in the context of the 

remainder of the cited standard, she must prove one of two things: (1) that Mach intentionally 

changed the ventilation system and, in doing so, altered the main air current or any split of the 

main air current in a manner that could materially affect the safety and health of the miners, or 

(2) that there was a change in the information required by section 75.371. For the reasons that 

follow, I find that the Secretary has again failed to satisfy her burden. 

Again, it is undisputed that Mach intentionally drilled the subject borehole from the 

surface into the mine bleeders. Further, I credit Inspector Jones’ testimony that air from the 

mine was coming out of the hole on the surface. Given that air was traveling from the mine to 

the surface via the borehole, a change in the subsurface airflow was obviously made when the 

borehole was punched through the mine roof. That change involved an unknown quantity of air, 

which was once directed through the underground portion of the mine, now traveling through the 

borehole and out of the mine. However, the cited standard requires more than a change to the 

main air current or a split of such. The change must not only alter the air current, it must alter it 

in such a way that it “could materially affect the safety and health of the miners[.]” On this 

issue, the Secretary has not succeeded in satisfying her burden. 

While Jones believed that the borehole “had the potential to alter the airflow in the 

bleeder system,” he acknowledged that he could not say if the borehole altered the air current in 

such a manner that it could materially affect the safety and health of miners. He agreed that the 

“potential” was there for the change to materially affect the safety and health of miners, but he 

conceded that there was no evidence at the time that there were dangerous or combustible levels 

of methane in the bleeder system when the drill bit punched through. Moreover, Jones tellingly 

did not allege any other potential dangers that the creation of the borehole could have created. 

Webb, who has a mine engineering background, testified that no miners were in the area at the 

time of the punch through and that the methane readings were below dangerous levels. I credit 

Webb’s testimony. I find that Jones’ statement that the “potential was there” that the change 

34 FMSHRC Page 217

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could materially affect the safety and health of miners does not, without further evidence, come 

close to satisfying the Secretary’s burden on this element. Jones offered nothing to support his 

statement and I can find nothing in the record from which I could reasonably infer that the 

borehole could materially affect the safety and health of miners. It is significant that Mach had 

previously installed two bleeder shafts less that 200 feet from the subject borehole that were part 

of its approved ventilation plan. There were fans on the top of each of these shafts that pulled 

significant amounts of air out of the mine in the vicinity of the subject borehole. (Tr. 113-14). 

The Secretary did not establish, and probably could not establish, that the addition of this third 

borehole, which was not equipped with a fan, altered the main air current or any split of the main 

air current in a manner that could have materially affected the safety and health of the miners. 

Finally, with regard to the cited standard’s directive that district manager approval be 

obtained before there is any change to the information required by section 75.371, I find that the 

Secretary has failed to satisfy her burden. The standard requires that any change to the 

information required by section 75.371 be submitted to, and approved by, the district manager. 

Section 75.371 requires that the mine ventilation plan contain certain specific information. The 

required information is laid out in the subsections of the standard. Here, the Secretary alleges 

that changes related to subsections (y) and (z) were made prior to obtaining district manager 

approval. Subsection 75.371(y) requires that “[t]he means for determining the effectiveness of 

bleeder systems” be included in the mine’s ventilation plan. Likewise, as relevant to this 

analysis, subsection 75.371(z) requires that “[a]lternative methods of evaluation of the 

effectiveness of bleeder systems” be included in the mine’s ventilation plan. I find that, for 

many of the same reasons discussed above with regard to plan implementation, no changes to the 

subject mine plan information were made. Mach was only considering changing the means or 

alternative methods of determining the effectiveness of the bleeder system. Drilling a borehole, 

by itself, does not change the means, or alternative methods, of determining the effectiveness of 

the bleeder system. Again, as discussed above, at the time this order was issued, the mine 

continued to evaluate the effectiveness of the bleeder systems by approved methods. While 

drilling a borehole might be a small step in working toward such a change, it does not amount to 

a change in the information required by the referenced subsections of 75.371. For the foregoing 

reasons, Order No. 8414249 is VACATED. 

II. APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are not 

disputed by Mach. Mach is a large mine operator. Mach in good faith stopped mining the No. 3 

Headgate entries upon issuance of the order. The order was terminated on September 9, 2009, 

and a revised ventilation plan was subsequently approved. The penalty assessed in this decision 

will not have an adverse effect on Mach’s ability to continue in business. The gravity and 

negligence findings are discussed above. 

34 FMSHRC Page 218

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III. ORDER
 

For the reasons set forth above, Order No. 8414249 is VACATED. Order No. 8414238 

is MODIFIED to a section 104(a) citation, as set forth in this decision and my earlier orders, as 

discussed above. Mach Mining, LLC, is ORDERED TO PAY the Secretary of Labor the sum 

of $100.00 within 30 days of the date of this decision.2 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn 

St., 8th Floor, Chicago, IL 60604 

Daniel W. Wolff, Esq., Crowell and Moring, 1001 Pennsylvania Ave., NW Washington, DC 

20004-2595 

2 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. 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 18, 2012 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. LAKE 2011-584 

Petitioner A.C. No. 33-04526-250713 

v. 

BUCKINGHAM COAL COMPANY, Mine: Buckingham No. 6 

Respondent 

ORDER ACCEPTING APPEARANCE
 

DECISION APPROVING SETTLEMENT
 

ORDER TO PAY
 

Before: Judge Lesnick 

This case is before me upon a petition for assessment of a civil penalty under section 

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

The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be 

accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 

1994). 

The CLR has filed a motion to approve settlement of the two violations involved in this 

matter. The originally proposed penalty amount was $33,800.00, and the proposed settlement is 

for $8,225.00, a reduction in the proposed penalty amount of approximately seventy-six percent. 

Citation Nos. 8026170 and 8026171 remain unchanged, but the CLR states that, given the 

record, the citations did not warrant a special assessment. In support of this reduction, the CLR 

states that upon reviewing “the factual evidence surrounding the existence of the violation[s],” 

the Secretary was persuaded that a special assessment was not appropriate “because no egregious 

conduct was exhibited by the operator.” Sec’y Mot. at 2-3. The two violations at issue involved 

dust suppression sprays on a continuous miner. The CLR notes that (1) thirty of the dust 

suppression sprays on the miner were in operable condition, (2) no special assessment had ever 

been issued on that section under the cited standards, (3) the miner had not begun mining on the 

shift when pre-operational checks revealed problems with some of the sprays, and (4) all 

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workers were re-trained on the importance of checking and maintaining all of the dust 

suppression parameters of the miner at all times. Id. 

I have considered the representations and documentation submitted in this case. 

Although the magnitude of the proposed reduction in penalty is large, I note that it is consistent 

with the Secretary’s broad discretion in administering her Part 100 regulations. Section 100.5 of 

those regulations states in relevant part: “MSHA may elect to waive the regular assessment 

under § 100.3 if it determines that conditions warrant a special assessment.” 30 C.F.R. 

§ 100.5(a). Here, the Secretary reconsidered a determination that the cited conditions warranted 

a special assessment, which was consistent with the broad discretionary authority set forth in 

section 100.5(a). 

I also find that the settlement motion proffered by the Secretary and agreed to by 

Buckingham Coal Company is fully supported by the particular facts set forth in the motion. My 

authority to review settlement agreements filed by the Secretary and mine operators is found at 

section 110(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 110(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). 

Although I am not bound by the Secretary’s exercise of her discretion under the Part 100 

regulations, Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678-679 (Apr. 1987), in the 

context of the instant settlement agreement, I find it appropriate to defer to the judgment of the 

parties in arriving at an agreement that is consistent with those regulations and the factual bases 

for the change in the assessment formula used by the Secretary in proposing the penalties set 

forth in her motion. Particularly in light of the facts provided by the Secretary, I conclude that 

the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act and 

“consistent with the Mine Act’s objectives.” Knox County, 3 FMSHRC at 2479. 

The settlement amounts are as follows: 

Citation No. Assessment Settlement 

8026170 $20,900.00 $5,081.00 

8026171 $12,900.00 $3,144.00 

$33,800.00 $8,225.00
 

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Accordingly, the recommended settlement is APPROVED and the operator is 

ORDERED TO PAY $8,225.00 within thirty days of the date of this decision.1 Upon receipt of 

payment, this case is DISMISSED. 

/s/ Robert J. Lesnick 

Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: 

Barry L. Ryan, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 604 

Cheat Road, Morgantown, WV 26508 

Chris Cosgrave, Safety Director, P.O. Box 400, Corning, OH 43740 

/tjr 

1

Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

34 FMSHRC Page 222

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 18, 2012 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. YORK 2011-185 

Petitioner A.C. No. 18-00769-253489 

v. 

VINDEX ENERGY CORPORATION, Mine: Carlos Surface Mine 

Respondent 

ORDER ACCEPTING APPEARANCE
 

DECISION APPROVING SETTLEMENT
 

ORDER TO MODIFY
 

ORDER TO PAY
 

Before: Judge Lesnick 

This case is before me upon a petition for assessment of a civil penalty under section 

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

The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be 

accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 

1994). 

The CLR has filed a motion to approve settlement. A reduction in the penalty from 

$8,893.00 to $3,996.00 is proposed, a reduction in the proposed penalty amount of 

approximately fifty-five percent. In support of this reduction, the CLR states that upon 

reviewing the gravity of the underlying violation as set forth in Citation No. 8028750, it was 

more appropriate to characterize the likelihood of injury or illness as “reasonably likely” rather 

than “highly likely” as originally alleged in the citation. I have considered the representations 

and documentation submitted in this case. Although the magnitude of the proposed reduction in 

penalty is large, I note that it is consistent with the Secretary’s Part 100 regulations found in 30 

C.F.R. Under Part 100, changing the likelihood of injury or illness from “highly likely” to 

“reasonably likely” results in a ten point reduction in total points, specifically, from 116 to 106 

points. 30 C.F.R. § 100.3(e), Table XI. After applying a ten percent reduction to reflect the 

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operator’s “good faith,” the Part 100 formula results in a proposed penalty of $3,996, the amount 

agreed upon by the parties. 30 C.F.R. § 100.3(g), Table XIV. 

I also find that the proposed change in the likelihood of injury or illness from “highly 

likely” to “reasonably likely” is adequately supported by the facts as set forth by the parties in 

the motion. The violation at issue here involved a mechanical portable screen that was moved at 

least once a shift, but which moved at an extremely slow rate of speed and posed far less of a 

danger of injury than originally found by the Secretary’s representative. Motion at [2-3]. 

My authority to review settlement agreements filed by the Secretary and mine operators 

is found at section 110(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 110(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). 

Although I am not bound by the Secretary’s Part 100 regulations, Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 673, 678-679 (Apr. 1987), in the context of a settlement agreement, I find 

it appropriate to defer to the judgment of the parties in arriving at an agreement that is consistent 

with those regulations and for which the parties have provided an adequate factual basis for the 

change in the designated gravity of the underlying violation. I thus conclude that the proffered 

settlement is appropriate under the criteria set forth in section 110(i) of the Act and “consistent 

with the Mine Act’s objectives.” Knox County, 3 FMSHRC at 2479. 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citation No. 8028750 be MODIFIED to reduce the likelihood of 

injury or illness from “highly likely” to “reasonably likely.” 

It is further ORDERED that the operator pay a penalty of $3,996.00 within thirty days of 

this order.1

 Upon receipt of payment, this matter is DISMISSED. 

/s/ Robert J. Lesnick 

Robert J. Lesnick 

Chief Administrative Law Judge 

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

34 FMSHRC Page 224

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Distribution: 

Robert W. Radosevich, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, 604 Cheat Road, Morgantown, WV 26508 

Eric Metheny, Vindex Energy Corporation, 265A Glass Dr., Mt. Lake Park, MD 21550 

/tjr 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

January 20, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. CENT 2010-323-M 

Petitioner, : A.C. No. 39-01514-204704-01 

: 

v. : Docket No. CENT 2010-324-M

 : A.C. No. 39-01514-204704-02

 : 

BACHMANN SAND & GRAVEL, : Mine ID: 39-01514 

Respondent. : Mine: Unit 1 

DECISION 

Appearances: Beau Ellis, Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, for Petitioner; 

Wayne Bachmann, Bachmann Sand & Gravel, Winner, South Dakota, for 

Respondent. 

Before: Judge Miller 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration 

(“MSHA”), against Bachmann Sand & Gravel (“BSG”), at its Winner, South Dakota mine (the 

“mine”), 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”). This matter involves two dockets with six 

alleged violations, and a total proposed penalty of $8,686.00. The parties presented testimony 

and documentary evidence at the hearing held in Rapid City, South Dakota that commenced on 

December 7, 2011. At hearing, the Secretary vacated one citation, and modified two 104(d)(2) 

orders to 104(a) citations. The Secretary’s proposed penalties for the modified orders were 

recalculated and are set forth below. At the conclusion of the hearing, I issued a decision on the 

record. That decision, with appropriate edits and additions, is set forth below. 

I. LEGAL STANDARDS 

A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the 

Act as a violation “of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is 

properly designated S&S “if, based upon the particular facts surrounding that violation, there 

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

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[i]n order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

We have explained further that the third element of the Mathies 

formula “requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(1), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in consideration of the length of time that the violative condition existed 

prior to the citation and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Wayne Bachmann operates Bachmann Sand & Gravel in Winner, South Dakota. The 

mine is subject to regular inspections by the Secretary’s Mine Safety and Health Administration 

34 FMSHRC Page 227

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pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that BSG is the 

operator of the mine, that its operations affect interstate commerce, and that it is subject to the 

jurisdiction of the Mine Act. Jt. Ex. 1. 

Each of the citations in these cases were issued by Inspector Daniel Scherer, who has 

worked as a MSHA mine inspector since Sept 2006. Prior to becoming an inspector, Scherer 

worked in the mining industry for 16 years. 

BSG is a small sand and gravel operation, which produces mostly sand. The property 

contains a screening operation and stacking conveyor, as well as a pit wall and a trailer that is 

used as a weigh station. The mine operates intermittently but was in open status on 

October 20, 2009, the day the inspection commenced. When Inspector Scherer arrived at the 

mine property, he could not locate the operator or any employee. Given the distance that 

inspectors must travel and the fact that notice of an inspection may not be given to an operator, it 

is MSHA’s policy to attempt to contact mine owners and, if the owner cannot be contacted, to 

conduct inspections without anyone present. In this case, Inspector Scherer made several calls to 

Wayne Bachmann, the mine owner, without success. After making such attempts, he 

commenced his investigation. Shortly thereafter, a number of trucks driven by county 

employees arrived at the mine. The county employees began to operate the front end loader to 

load their own trucks and take away the sand. They explained to the inspector that they had 

received prior permission from the owner to be on the property and to load the sand onto their 

trucks in the event no one was present. Moreover, they indicated that Mr. Bachmann had been 

present the previous day loading the same trucks. Scherer observed that there were six county 

employees coming and going on the property. Mr. Bachmann did not arrive at the property to 

meet the inspector until the following day. 

After careful consideration of all of the testimony, and having viewed the witnesses 

during the course of the hearing, and taking into account the inspector’s unrebutted and credible 

testimony, I find Inspector Scherer to be a reliable and credible witness. I accept his assertions 

and testimony in all regards. Based on such, I find that the Secretary has established the fact of 

violation in each of the citations discussed below by a preponderance of the credible and 

probative evidence presented in this case. 

a. Order No. 6426224 (Docket No. CENT 2010-323-M) 

On October 20, 2009, Inspector Scherer issued Order No. 6426224 to BSG for a violation 

of section 56.14112(a)(1) of the Secretary’s regulations. The cited standard requires that 

“[g]uards shall be constructed and maintained to . . . withstand the vibration, shock, and wear to 

which they will be subjected during normal operation.” 30 C.F.R. § 56.14112(a)(1). The order 

alleges the following: 

Two expanded metal guards on the west side of the Kolman 

stacker conveyor at the self cleaning tail pulley were not 

constructed and maintained to withstand the vibration, shock, and 

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wear to which they were subjected. One guard was damaged and 

torn free on one end causing it to hang down presenting an opening 

10 inches wide by 4 inches high within 5 inches of the tail pulley 

and the other guard had shifted presenting an opening 4 inches 

wide by 20 inches high within 7 inches of the tail pulley. A miner 

works in this area as needed for clean up and to grease & maintain 

the equipment. Based on continued mining operations this 

condition exposes miners to contact with the tail pulley and to 

entanglement and the loss of limbs. The mine owner, Wayne 

Bachmann has engaged in aggravated conduct constituting more 

than ordinary negligence in that he had damaged the guard when 

operating the front end loader and had allowed the condition to 

continue to exist, also the owner has been cited on the two 

previous inspections for guarding on this conveyor at the tail 

pulley. This violation is an unwarrantable failure to comply with a 

mandatory standard. 

The inspector found that an injury was reasonably likely to occur, that the injury could be 

reasonably expected to be of a permanently disabling nature, 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 originally proposed a civil penalty in the 

amount of $4,000.00. At hearing, the Secretary modified this order to a 104(a) citation with high 

negligence, resulting in a newly proposed penalty of $363.00. 

[This] citation was issued for two expanded metal guards at 

the west side of the Kolman stacker conveyer . . . [near] the 

self-cleaning tail pulley. Those guards were not constructed and 

maintained to withstand the vibration, shock and wear to which 

they were subjected. The Inspector explains in detail his 

observations in his citation, and Mr. Bachmann has indicated that 

the observations of the Inspector are correct, including that two 

openings[, created by missing or inadequately attached guards,] 

were present near the moving pulley. One [opening] was 10 

inches wide by 4 inches high [and] within 5 inches of the tail 

pulley[, while the other opening] . . . was 4 inches wide by 20 

inches high [and] within 7 inches of the tail pulley. [Both 

openings were large enough to reach into.] 

. . . 

[The photographs in Secretary’s] Exhibit P-7. . . clearly 

show the condition of the pulley and the guards missing from that 

pulley. One of [the guards] is [hanging loose and] buried in the 

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sand, and the other one [was missing and not on the machine, but] 

Mr. Bachmann later found [it]. . . . [T]he photographs [in]. . . 

[Secretary’s Exhibit] P-7, . . . are a good indication of the 

condition of those guards and those pulleys. [see Sec’y Ex. P-7, 

pp. 4 and 5.] The two areas are open[]. One of [the guards] was 

buried in the sand . . . . [Id. at p. 5]. 

. . . 

The [condition of the] guards that were . . . cited by 

Inspector Scherer [was] . . . obvious as he came up to the tail 

pulley. [(Tr. 42). One guard] . . . had been loose and hanging 

down[, while the other was missing entirely]. . . . [I]n Inspector 

Scherer’s view they had been that way the day before when [the 

mine] . . . was running. [(Tr. 32).] One of his observations 

included the color of the sand and the location of the [one] guard[. 

Based on the color of the sand, Scherer determined that the guards] 

had been in that condition for some time[,] and that they had not 

been knocked off, as Mr. Bachmann alleges, the day before. [(Tr. 

33).] 

I credit Inspector Scherer’s testimony and find that the 

guards . . . [had] been in that condition for some time and that the 

Secretary has established, as required by the mandatory standard, 

that the guard was not constructed or maintained to withstand the 

vibration, shock and wear to which it was subjected during normal 

operations. 

While the belt was not operating at the time Inspector 

Scherer was there, it was clear that it had been operating the day 

before, and I find that it was operating with the guards in the 

condition as cited by Inspector Scherer. . . . I do not agree that the 

guards . . . had recently been knocked out of place by the loader[,] 

as alleged by Mr. Bachmann. I agree with Inspector Scherer that it 

was due to normal wear and tear and vibration and that the guards 

had been, over time, worn and somehow taken or moved on their 

own or by someone else from this particular area. The guard had 

shifted during working, and therefore I conclude that the Secretary 

has established a violation of Section 5614112[(a)(1)] as alleged 

by the Secretary. 

The evidence clearly shows that the pulley was not 

guarded, and the photograph taken by Inspector Scherer shows the 

[the one] guard was partially buried in the sand[, thereby] . . . 

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exposing the moving machinery. I find the guard was not 

adequately maintained to withstand the vibration that it was 

subjected to. 

There is no dispute that the guard was somehow damaged 

and that the tail pulley was exposed in two places. The exposed 

area was large enough for someone’s hand to fit through. . . . 

[A]lthough the belt was not running at the time Inspector Scherer 

arrived, there is credible evidence that it had been operating the 

day before in the condition he observed. 

Inspector Scherer was concerned that someone’s hand or 

clothing could get caught in the self-cleaning tail pulley, and the 

Inspector determined that it was likely that someone would be 

injured based on this particular violation. [(Tr. 29-31).] The 

Inspector credibly testified that crushing injuries would occur if 

someone came in contact with the tail pulley, or[,] given the nature 

and location of the guard[,] someone could be caught on the sharp 

edges and either cut or trip in the sandy area around the tail pulley 

and be seriously injured. [Id.] 

The violation created a hazard of someone coming in 

contact with moving machine parts[.] . . . [T]here was [a] 

reasonable [likelihood] . . . that . . . an accident would occur given 

the fact that . . . people have to come into this area to grease the 

tail pulley [and] . . . adjust the belt, sometimes with the conveyer in 

operation. . . . 

The photograph[s] clearly show[] that the [general] area is 

very sandy, uneven ground and could easily lead to someone 

falling into the [subject] area[. Sec’y Ex. P-7, pp. 4and 5. 

Moveover,] . . . someone working in the area to clean the tail 

pulley could become entangled in the area. Therefore[,] I agree 

with Inspector Scherer that there is a reasonable likelihood that 

someone would be injured and that . . . [the] injury would be 

serious, causing a disabling or even fatal injury[.] . . . I find that 

the violation is significant and substantial . . . .[1

] 

1

 I found this violation to be significant and substantial based upon the testimony of 

Scherer, which clearly described the openings, the access to the moving conveyor and machine 

parts, and the area around the conveyor, including the uneven and sloping, sandy ground. The 

tail pulley is accessed regularly to grease the pulley, adjust the belt, and monitor the equipment. 

The tail pulley and conveyor can easily be contacted by workers in the area and, as Scherer 

(continued...) 

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Finally, this citation was issued with high negligence . . . 

[b]ased upon . . . the Inspector’s understanding that Bachmann had 

been cited for this violation before[.] . . . [This] is borne out by the 

exhibit submitted by the Secretary to show that this . . . [same] area 

of the tail pulley had been cited about a year prior to this in . . . 

September 2008. [(Tr. 36-38); Sec’y Ex. P-17.] This inspection 

was in October 2009 [and it was] . . .indeed the same area [that] 

had been cited [before.] Mr. Bachmann’s conversation with the 

Inspector indicated that he was aware that . . . the guards were 

missing, . . . that he believed that they should not have to be in 

place, that he should not be required to keep them in place[,] and 

[that] he didn’t find it a hazard because he was the only one 

working in the area and he knew that they were not in place. 

This [area] . . . does fill up with material. I understand that 

Mr. Bachmann has to remove the guard to clean it, but it is his 

responsibility to return those guards when they’re done. I agree 

with the Inspector’s determination that Mr. Bachmann was highly 

negligent[.] [T]he company had a duty to maintain the guards to 

withstand the vibration, wear and tear . . . [and] to return them if 

they took those guards off [to conduct any maintenance]. 

After viewing the photographs of the guarding before and 

after the violation was issued, [Sec’y Ex. P-7, pp. 4-6] I find that . . 

. this violation was easily noticed by anyone, [i.e.,] that it was out 

in the open and would have been seen. . . . [I]n fact, Mr. 

Bachmann indicated to the Inspector that he knew those guards 

were off.[2] . . . [T]herefore[,] I find that the negligence is high. . . 

. [B]ased upon the seriousness of the violation [and] someone 

getting caught in this moving tail pulley and being seriously 

1

(...continued) 

noted, the pulley “is not forgiving”. There is a very real danger of getting tangled in the pulley 

or belt and of getting caught on the sharp metal edges of the dangling guard. The unguarded belt 

and pulley was a safety hazard if a person were to slip and contact the belt, the pulley, or even 

the bent guard. 

2

 Bachmann told Scherer that he knew the one guard had shifted. (Tr. 43-44). He also 

agreed that he had removed the other guard, knew where it was located, and would put it back. 

Both guards were repaired by the time Scherer returned the following day. When speaking to 

Bachmann about the guards, Scherer was told that Bachmann did not believe the guards were 

necessary and that he was tired of putting them back in place. 

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injured, and the fact that Bachmann demonstrated high negligence, 

I assess a $500 penalty for this violation. 

(Tr. 113-119). 

b. Citation No. 6426225 (Docket No. CENT 2010-324-M) 

On October 20, 2009, Inspector Scherer issued Citation No. 6426225 to BSG for a 

violation of section 56.14132(a) of the Secretary’s regulations. The cited standard requires that 

“[m]anually-operated horns or other audible warning devices provided on self-propelled mobile 

equipment as a safety feature shall be maintained in functional condition.” 30 C.F.R. § 

56.14132(a). The order alleges the following: 

The backup alarm on the CAT 980C front end loader (SN 

63X2069) had not been maintained in a functional condition and 

was not working when inspected. This front end loader is used to 

load out haul trucks in the stockpile area and to haul material from 

the pit walls to the hopper. Several haul trucks were operating 

near this front end loader and truck drivers were observed traveling 

in the area on foot. Based on continued mining operations this 

condition exposes the mobile equipment to collisions and the 

miners and mobile equipment operators in the area to crushing 

injuries from being run into or over. 

The inspector found that an injury was reasonably likely to occur, that the injury could 

reasonably be expected to result in a fatality, that the violation was significant and substantial, 

that one person would be affected, and that the violation was the result of moderate negligence 

on the part of the operator. The Secretary has proposed a civil penalty in the amount of $243.00. 

Citation 6426225 . . . refers to a backup alarm on the Cat 

980-C front-end loader [that] was not maintained in a functional 

condition and was not working when Inspector Scherer was at the 

mine. . . . Inspector Scherer had conversations with the county 

employees who were at the mine at the time[. (Tr. 55-56).] . . . 

[S]everal of these county employees were using the front-end 

loader to load the county trucks. They switched off during the day, 

taking turns using the front-end loader. . . . [T]his scenario . . . 

seems a little unusual to me. I have not heard of [situations where] 

. . . county employees come on . . . [a] mine site and . . . use the 

equipment of the mine site and load their own trucks, but they 

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were doing it at this [mine at the ] time [Inspector Scherer was 

there].[3] 

Inspector Scherer indicated that there were probably six or 

so county employees coming and going at the mine during that 

day. One of the employees who was operating [the] . . . front-end 

loader backed up the front-end loader for Inspector Scherer, and it 

was clear that the audible backup alarm was not operating at the 

time. 

Inspector Scherer testified that he had another employee of 

the county conduct the test a second time and[,] again[,] the 

backup alarm was not working. [(Tr. 57).] I credit Inspector 

Scherer’s testimony and find that indeed a violation of Section 

56[.]14132[(a)] has been shown in this case. . . . 

I understand that Mr. Bachmann asserts that he was not 

aware that . . .there was any problem with the backup alarm and he 

was not aware of how that alarm on the loader may have been 

repaired [between the time the violation was issued and when he 

returned to the mine the following day]. Nonetheless, I accept 

Inspector Scherer’s representation that it was not working when he 

conducted his inspection[.] . . . [T]here is a violation of the 

mandatory standard. 

This backup alarm standard is to protect people on foot and 

other people working in the area . . . [from] get[ting] injured. 

[O]ver the years . . . there have been a number of fatal injuries of 

people who have been injured by equipment backing up without an 

audible backup alarm. 

. . . Inspector Scherer . . . designated this as a significant 

and substantial violation, and I agree with him. There were county 

employees in the area who didn’t work at the mine . . . . Some of 

them were on foot. Some of them were in and out of this loader. 

Some of them were using other equipment. I can see how it would 

easily happen that[,] when this loader backed up, someone [or 

something] could be hit, either another piece of equipment or 

someone on foot. . . . [I]f they were hit, [it is more than reasonable 

to expect that] the injuries could be disabling or even fatal. [(Tr. 

60-61).] 

3

 Instead of locking out the equipment, Scherer allowed it to be operated on the condition 

that a spotter was always present. (Tr. 57-58). 

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. . . [D]ue to the number of people in the area, [including] 

people taking turns operating the loader . . . who are not familiar 

with this particular mine or who didn’t know the backup alarm was 

not functioning, there were a number of people exposed [to this 

hazard. I find that there was more than a reasonable likelihood 

that the hazard contributed to would result in an injury of a 

reasonably serious nature.] . . . I find that the Secretary has shown 

this . . . to be a significant and substantial violation. 

The Inspector found this violation to be moderate 

negligence on the part of the mine operator primarily based on his 

conversations with Mr. Bachmann that . . . Bachmann was not 

aware that the backup alarm was not functional. [I agree with the 

Inspector’s assessment of the negligence.] . . . [T]he Secretary has 

proposed a penalty of $243 for this violation, and that is the 

penalty that I assess in this instance. 

(Tr. 119-122). 

c. Citation No. 6426226 (Docket No. CENT 2010-324-M) 

On October 20, 2009, Inspector Scherer issued Citation No. 6426226 to BSG for a 

violation of section 56.14101(a)(2) of the Secretary’s regulations. The cited standard requires 

that, “if equipped on self-propelled mobile equipment, parking brakes shall be capable of 

holding the equipment with its typical load on the maximum grade it travels.” 30 C.F.R. § 

56.14101(a)(2). The citation alleges the following: 

The parking brake on the CAT 980C front end loader (SN 

63X2069) was not capable of holding the equipment with a typical 

load on the maximum grade it travels. The park [sic] brake offered 

no noticeable resistance when tested on a grade of approximately 

3% with an empty bucket. This loader is used to feed material to 

the plant and to load out haul trucks and is operated near several 

other pieces of mobile equipment. The loader is operated on 

grades of up to 20% as measured with an abney level. This 

condition exposes the loader operator and other equipment 

operators to crushing injuries from being run over or pinned 

between pieces of mobile equipment. 

The inspector found that an injury was reasonably likely to occur, that the injury could 

reasonably be expected to result in a fatality, that the violation was significant and substantial, 

that one person would be affected, and that the violation was the result of moderate negligence 

on the part of the operator. The Secretary has proposed a civil penalty in the amount of $243.00. 

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ve
[C]itation No. 6426226 refers to the same front-end loader 

as the previous violation[, Citation No. 6426225 ]. Mr. Bachmann 

. . . indicates that he was not aware that the parking brake was not 

working. [(Tr. 66).] Inspector Scherer issued the citation based on 

. . . checking the parking brake [with the assistance] of one of the 

county employees who was at the mine. [In order to prevent 

exposure of anyone to a hazard,] Inspector Scherer tested the brake 

on a fairly level surface[, which was significantly less of a grade 

than the maximum grade that the loader would travel during 

normal operation. (Tr. 67-68). After the loader was stopped by 

compressing the regular brake, and the parking brake set, it 

continued to roll forward. Given that the brake would not hold an 

empty bucket on the level grade, Scherer did not want to risk 

attempting it on the maximum grade and with a normal load. (Tr. 

67-68)]. 

As Inspector Scherer indicated in his citation, the parking 

brake was not capable of holding the equipment with a typical load 

on the maximum grade it travels. He could discern this because 

[when he tested it, the loader] . . . was . . . not even on the 

maximum grade it travels[,] . . . was not loaded[,] and the brake . . . 

[could] not hold the piece of equipment in place. He said there 

was no noticeable resistance when tested on a grade of 

approximately 3 percent[, a relatively level grade,] with an empty 

bucket. Again, the Inspector designated this violation as 

significant and substantial. 

Based upon the testimony of Inspector Scherer and what he 

observed on the front-end loader on that particular day[,] and given 

the test [was conducted] on a really light grade and the brake 

wouldn’t hold, I find that the Secretary has shown a violation of 

Section 5614101[(a)(2)] which requires that if equipped on 

self-propelled mobile equipment, parking brakes shall be capable 

of holding equipment with its typical load on the maximum grade 

it travels. 

Based on the Inspector’s testimony I find that the loader 

was equipped with parking brakes[,] but [the brakes] . . . were not 

capable of holding the loader with its typical load on the maximum 

grade. Therefore[,] I conclude that the company violated the 

regulation as alleged. I have found that there is a violation of this 

mandatory standard. I find that the violation creates a discrete 

safety hazard . . .[, i.e., that of the parking brake not holding while 

the vehicle is parked and someone is in the area of the equipment]. 

When the driver of the equipment gets out and expects the parking 

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brake to hold the truck in place and it doesn’t, the driver might 

inadvertently walk around the equipment and be run over by the 

equipment when the brake doesn’t hold. [(Tr. 70-71).] The same 

is true for any other person working in the area who may be 

exposed to this loader. [(Tr. 71).] 

. . . [G]iven the fact that there were at least six county 

employees on the mine site that day, none of whom . . . [were] 

aware of the condition of this loader until . . . Inspector Scherer 

tested it and explained to them that the parking brake didn’t hold, 

[and that] others come in and out of the area throughout the day 

and may not be aware of it, . . . if the loader had been parked . . . -

with the expectation that the parking brake would hold and it 

didn’t, . . . [it was] reasonably [likely that the condition would] 

cause a serious injury to miners. [Moreover, the county employees 

were not employees of the mine and were not, and could not be, 

completely familiar with equipment.] 

This condition created a hazard of an employee[, or anyone 

else in the area,] being injured should the loader roll from its 

parked position. It’s a hazard to the driver and to others in the area 

who assume the brake will hold. 

The [county] truck drivers were required to use alternate 

means to hold the loader when parked during their work on that 

day, and if they did not use this alternate means, the truck would 

roll and hit someone in the area, someone not aware of the 

problem, and the injury would be fatal. There was foot traffic, a 

number of people in the area, and therefore I find that it’s 

reasonably likely that an injury would occur as a result of this 

violation. [Any injury would be serious, and potentially fatal.] 

Mr. Bachmann indicated . . . that the brake was working 

fine the next day when he arrived and he was not aware that there 

was any problem with the violation. . . . [T]he Inspector 

designated this as moderate negligence, and I agree[.] . . . I assess 

the $243 penalty as proposed by the Secretary. 

(Tr. 122-126). 

d. Citation No. 6426227 (Docket No. CENT 2010-324-M) 

On October 20, 2009, Inspector Scherer issued Citation No. 6426227 to BSG for a 

violation of section 56.4130(b) of the Secretary’s regulations. The cited standard requires that 

“[t]he area within the 25-foot perimeter [of unburied, flammable or combustible liquid storage 

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tanks] shall be kept free of dry vegetation.” 30 C.F.R. § 56.4130(b). The order alleges the 

following: 

The area within the 25-foot perimeter of the elevated diesel storage 

tank at the fueling area was not kept free of dry vegetation. Dry 

grass and weeds up to 2 foot tall were under and around the tank 

and extended out to the road way and to an electrical panel 

presenting a fire hazard. Miners and truck drivers travel in this 

area daily and access this fuel tank on an as needed basis. This 

condition exposes miner to smoke inhalation and burns in trying to 

fight a fire in the early stages. 

The inspector found that an injury was unlikely to occur, but that any injury could reasonably be 

expected to result in lost workdays or restricted duty, that the violation was not significant and 

substantial, that one person would be affected, and that the violation was the result of moderate 

negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount 

of $100.00. 

Citation 6426227 . . . is a very straightforward . . .[,] 

non-S&S citation with a $100 penalty. . . . Inspector Scherer 

indicated that the area within the 25-foot perimeter of the elevated 

diesel storage tank at the fueling area was not kept free of dry 

vegetation, that dry grass and weeds up to 2 feet tall were under 

and around the tank and extended out to the roadway. [This 

condition created a potential hazard because of the combination of 

fuel and dry material that, if ignited, would threaten anyone in the 

area.] 

The Inspector cited the standard that requires that . . . [the 

25 foot perimeter around, in this case, an unburied, flammable or 

combustible liquid storage tank be kept free of dry vegetation]. . . . 

This [citation involves a] . . . diesel fuel [tank], which . . . [had] 

flammable liquid [in it]. . . . I credit the Inspector’s observation 

that there was dry grass within 25 feet of . . . [the tank]. [The 

condition was obvious. see Sec’y Ex. P-10, pp. 3-4.] 

Mr. Bachmann doesn’t dispute that there was grass within 

the 25 feet [of the tank], but [he does state that,] on the next day[,] 

when he arrived at the mine[,] it was raining and[,] therefore[,] he 

disputes that it was dry. [(Tr. 78).] I credit the Inspector’s 

testimony for what he observed on the day of his inspection. He 

designated this as not significant and substantial because[,] in his 

view[,] there was no likelihood that there might be some kind of 

fire[, since he did not observe an ignition source. (Tr. 80).] If 

there were [an ignition source,] someone might be seriously 

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injured, but he didn’t find there was a likelihood of that. 

Therefore[,] I agree with the Inspector and assess the $100 penalty 

as proposed by the Secretary. 

(Tr. 126-127). 

e. Order No. 6426229 (Docket No. CENT 2010-323-M) 

On October 20, 2009, Inspector Scherer issued Order No. 6426229 to BSG for a violation 

of section 56.16006 of the Secretary’s regulations. The cited standard requires that “[v]alves on 

compressed gas cylinders shall be protected by covers when being transported or stored, and by a 

safe location when the cylinders are in use.” 30 C.F.R. § 56.16006. The order alleges the 

following: 

The valve on the 120 lb. propane cylinder located alongside of the 

scale trailer on the roadway side was not properly protected by a 

cover. This propane cylinder was lying on its side parallel to the 

outside wall of the trailer with a regulator attached and was hooked 

into the trailers heating system. The cylinder valve was not 

provided with a protective collar or any type of protection. There 

were cinder blocks on the roof of the trailer located directly above 

the valve that were in use to hold roofing down. Various pieces of 

timber and pipe were in the area alongside of the cylinder. This 

cylinder had been placed this way for an extended period of time 

which exposes the valve to damage from contact. Miners and 

truck drivers travel in this area on a daily basis. This condition 

exposes miners and truck drivers to fire, explosion and impaling 

injuries from projectiles. Mine management has engaged in 

aggravated conduct constituting more than ordinary negligence in 

that they knew or should have been aware of this condition as it 

has existed for an extended period of time, was open and obvious 

and they are in this area on daily basis when the mine is in 

operation. This violation is an unwarrantable failure to comply 

with a mandatory standard. 

The inspector found that an injury was unlikely to occur, that any injury could be reasonably 

expected to be of a permanently disabling nature, that the violation was not 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 proposed a civil penalty in the amount of 

$4,000.00. At hearing, the Secretary modified this order to a 104(a) citation with high 

negligence, resulting in a newly proposed penalty of $100.00. The Secretary’s request to modify 

is GRANTED. 

[This citation involves a] propane tank stored next to[,] . . . 

under, [or] partially under the scale house[,] which is a trailer[.] 

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[Sec’y Ex. 11, pp. 3 and 4; Sec’y Ex. 12, p. 4] . . . [The] citation 

alleges that the propane cylinder alongside the scale trailer was not 

properly protected and [,]specifically[,] the cylinder valve was not 

properly protected. 

The Respondent is charged with the violation of the 

mandatory standard . . . for failing to provide protection for the 

valve[] on the gas cylinder which . . .[was] used at the scale house. 

[The intent of the standard is to protect against the exposure of gas 

cylinder valves to the possibility of being struck, thereby 

unexpectedly releasing gas under great pressure, which may, given 

the right conditions, pose a fire or explosion hazard.] 

Inspector Scherer referred to the valve[] . . . [on] the 

uncovered cylinder, as well as the attached line. . . .[A]ll of these 

devices were part of this one unit. [The photographs in 

Secretary’s] Exhibit P-12, . . .Page 4, and . . . [Secretary’s] Exhibit 

11[,] . . . show this cylinder laying on its side next to the trailer, 

[with] no cap cover or guard[.] . . . [The tank] was not stored in a 

safe location[,] as it was exposed to [loose] lumber that was stored 

in the area[,] . . . a port-a-potty or outhouse that was next to it[,] 

and . . . cinderblocks on the roof above. If any of those items fell 

on the . . . valve, it could cause the pressur[ized] . . . gas to be 

released[.] . . . [T]herefore[, the tank] . . . was not stored in a safe 

position nor was there a cap or cover to protect the valve. 

The valve on the . . . propane cylinder was not approved for 

horizontal use. [(Tr. 89-90).] The valve was not protected and was 

not in a safe location. There was a [gas] line running from the 

valve into the furnace located in[] the trailer. The valve is next to 

the outside of the trailer near the edge, and there [were] . . . 

materials . . . stacked alongside. . . . .[M]oving . . . materials . . . 

could strike the valve[. Morever,] . . . cinderblocks [were] located 

on the edge of the roof [directly] above the valve and[, according 

to Mr. Bachmann,] the port-a-potty next to [the cylinder] . . . had 

already been blown over at one point. [(Tr. 89, 100)] All of these 

things created a . . . hazard, but Inspector Scherer did not designate 

this as S&S. [Rather, Scherer] . . . determined that [an injury] . . . 

was not likely to occur. 

Mr. Bachmann [first] indicated that this cylinder had been 

used . . . for years to heat the trailer, but[,] on the second day [of 

the inspection] Mr. Bachmann and his brother . . . were discussing 

this violation [again] with Inspector Scherer, and the brother 

became very angry and insulting and threw the cylinder down. 

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[(Tr. 93-97).] Mr. Bachmann then opened the cylinder, and[,] in 

Inspector Scherer’s view[,] he heard the gas released. [(Tr. 98-

99).] Based on the sound and the smell [that came from the 

cylinder when it was opened, Scherer determined that] . . . some 

propane gas remained in that cylinder.[4 (Tr. 99).] It was full when 

it was installed, although it may have been [at] . . . a very low level 

at the time of the violation. 

The standard cited requires that . . . valves on . . . gas 

cylinders be protected by covers when they are stored[. This 

valve] was clearly not [protected] based upon the photograph. . . . 

I conclude that MSHA has established the violation and the 

citation is affirmed. 

. . . Inspector Scherer found that the violation was a result 

of high negligence . . . on the part of the operator . . . based upon 

the fact that [the cylinder] had been there for some time. . . . 

[However,] I’m not convinced that there was high negligence in 

this particular violation. . . .Mr. Bachmann’s testimony [was] that 

[the cylinder]. . . wasn’t used[,] . . . that it was [just] laying there[,] 

and that [he was not] . . . aware that it was a violation. [(Tr. 102-

104).] . . . I find Mr. Bachmann’s negligence to be moderate based 

upon his testimony . . . [and] I assess the [$100.00] . . . penalty that 

the Secretary has proposed in this particular case. 

(Tr. 127-130). 

III. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the authority to assess all civil 

penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

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

the Commission [ALJ] shall consider the six statutory penalty criteria: 

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

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

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

4

 Bachmann testified that the cylinder had been upright, and that no propane remained in 

the cylinder. However, I credit Scherer’s testimony to the contrary. 

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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). Based on my above findings, I assess the following penalties: 

Order No. 64262245 $ 500.00 

Citation No. 6426225 $ 243.00 

Citation No. 6426226 $ 243.00 

Citation No. 6426227 $ 100.00 

Citation No. 

Order No. 

6426228 

64262296 

Vacated by the Secretary prior to hearing 

$ 100.00 

Total: $1,186.00 

IV. ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

penalties listed above for a total penalty of $1,186.00. Bachmann Sand & Gravel is hereby 

ORDERED to pay the Secretary of Labor the sum of $1,186.00 within 30 days of the date of 

this decision. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

5

 At hearing Order No. 6426224 was modified by the Secretary to a 104(a) citation. 

6

 At hearing Order No. 6426229 was modified by the Secretary to a 104(a) citation. 

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Distribution: (U.S. Postal Service Certified Mail, Return Receipt Requested) 

Beau Ellis, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
 

Denver, CO 80202
 

Wayne Bachmann, Bachmann Sand & Gravel, 31357 U.S. Highway 18, Winner, SD 57580
 

34 FMSHRC Page 243

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500
 

Washington, DC 20001-2021
 

Telephone: 202-434-9933
 

January 24, 2011
 

LAKEVIEW ROCK PRODUCTS, : CONTEST PROCEEDING

 Contestant, 

v. 

: 

: Docket No. WEST 2009-1455-RM 

SECRETARY OF LABOR 

: 

: 

Citation No. 6580016; 08/31/2009 

Lakeview Rock Products 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

: 

: 

: 

Mine ID: 42-01975, 

: 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

: 

: 

CIVIL PENALTY PROCEEDINGS 

ADMINISTRATION, (MSHA), 

Petitioner, 

: 

: 

Docket No. WEST 2010-271-M 

A.C. No. 42-01975-200271-01 

v. :

 : Docket No. WEST 2009-1041-M 

LAKEVIEW ROCK PRODUCTS : A.C. No. 42-01975-188142 

Respondent : 

Decision 

Appearances: Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Mine Safety 

Kevin Watkins, Esq., General Counsel, Lakeview Rock Products, North 

Salt Lake, Utah. 

Before: Judge Moran 

This matter, originally involving many citations, was reduced to two matters at the hearing, 

which was held on August 2, 2011 in Salt Lake City, Utah. The first, Citation Number 6425423, 

alleges that Lakeview Rock Products, a sand and gravel operation, employing a single bench, failed 

to provide ample warning to persons within the blast area, in advance of blasting, and will be 

referred to as the “blasting violation.” The second, Citation 6580016, addresses the action required 

where hazardous ground conditions are present. That matter, which will be referred to as the 

“highwall violation,” asserts that miners were allowed to work below a hazardous highwall. For the 

reasons which follow, both citations are affirmed, along with the special findings, and the associated 

Contest Proceeding is dismissed. 

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The Blasting Violation; Citation Number 6425423, alleging a violation of 30 C.F.R. § 

56.6306(f)(1) by failing to provide ample warning to those within the blast area. 

As its title suggests, Section 56.6306 Loading, blasting, and security, addresses various 

safety aspects of blasting.1 At issue here is subsection (f)(1) which provides: 

Before firing a blast (1) Ample warning shall be given to allow 

all persons to be evacuated; (2) Clear exit routes shall be provided 

for persons firing the round; and (3) All access routes to the blast 

area shall be guarded or barricaded to prevent the passage of persons 

or vehicles. 

(emphasis added) 

“Blast area” is defined as: “[T]he area in which concussion (shock wave), flying material, or gases 

from an explosion may cause injury to persons. 30 C.F.R. § 56.2 Definitions. The definition 

continues with the following guidance: “In determining the blast area, the following factors shall 

be considered: (1) Geology or material to be blasted. (2) Blast pattern. (3) Burden, depth, diameter, 

and angle of the holes. (4) Blasting experience of the mine. (5) Delay system, powder factor, and 

1

 The full text of the standard provides: Part 56. Safety and Health Standards--Surface 

Metal and Nonmetal Mines. Subpart E. Explosives, Use § 56.6306 Loading, blasting, and 

security. (a) When explosive materials or initiating systems are brought to the blast site, the 

blast site shall be attended; barricaded and posted with warning signs, such as “Danger,” 

“Explosives,” or “Keep Out;” or flagged against unauthorized entry. (b) Vehicles and equipment 

shall not be driven over explosive material or initiating systems in a manner which could contact 

the material or systems, or create other hazards. (c) Once loading begins, the only activities 

permitted within the blast site shall be those activities directly related to the blasting operation 

and the activities of surveying, stemming, sampling of geology, and reopening of holes, provided 

that reasonable care is exercised. Haulage activity is permitted near the base of a highwall being 

loaded or awaiting firing, provided no other haulage access exists. (d) Loading and blasting 

shall be conducted in a manner designed to facilitate a continuous process, with the blast fired as 

soon as possible following the completion of loading. If blasting a loaded round may be delayed 

for more than 72 hours, the operator shall notify the appropriate MSHA district office. (e) In 

electric blasting prior to connecting to the power source, and in nonelectric blasting prior to 

attaching an initiating device, all persons shall leave the blast area except persons in a blasting 

shelter or other location that protects them from concussion (shock wave), flying material, and 

gases. (f) Before firing a blast – (1) Ample warning shall be given to allow all persons to be 

evacuated; (2) Clear exit routes shall be provided for persons firing the round; and (3) All 

access routes to the blast area shall be guarded or barricaded to prevent the passage of 

persons or vehicles. (g) Work shall not resume in the blast area until a post-blast examination 

addressing potential blast-related hazards has been conducted by a person with the ability and 

experience to perform the examination. (emphasis added). 

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pounds per delay. (6) Type and amount of explosive material. (7) Type and amount of stemming. 

30 C.F.R. § 56.2. The definition of “blast area” can be sharpened to focus on the issue presented 

here: the flyrock. Using that approach, the applicable portion of that definition is “the area in which 

flying material from an explosion may cause injury to persons.” While it is indisputable, under the 

plain text of the guidance, that the enumerated factors are to be considered, the list does not purport 

to exclude other relevant factors in determining the blast area. Thus the list, while helpful, does not 

represent an exclusive list of the factors that are to be considered when conducting the ultrahazardous activity of blasting. Restated, one must not lose sight of the fact that the definition of 

“blast area” cannot be overtaken simply by a list of factors that are to be considered. 

The facts are not in dispute; the issue here is the applicability of those facts to the cited 

provision. On April 10, 2009, at about 2:45 p.m., Lakeview “conducted a blast in an area high up 

on the east end of the mine’s highwall.” Sec. Br. at 3. That blast produced flyrock which penetrated 

the roof of a nearby residential home which was located off the mine site. The flyrock then 

proceeded to travel through the home’s attic and ended up in the home’s living room.2

 That home, 

a new residence, some 600 to 700 yards away from the detonation site, was situated above the 

mine’s highwall. As there is no dispute that the flyrock came from Lakeview’s blast and that it 

penetrated the house, the only issue is whether the standard applies to these admitted circumstances. 

The event was investigated by MSHA Inspector Marc Shadden. He determined that an area 

of the blast had “rifled,”3 and that this resulted in the flyrock reaching the residence. Factoring the 

location of the blast, the proximity of the residence and the risk of flyrock, Inspector Shadden 

concluded that the home was within the potential blast area. Once that determination was made, that 

the home was within the blast area, ineluctably the conclusion was reached by MSHA that, as it was 

undisputed that the homeowners were not given any warning before the blast was detonated, a 

violation of the standard occurred. 

The Parties’ Contentions. 

The Secretary contends that, to comply with the standard, there must be ample warning given 

to those within the “blast area.” Sec. Br. at 4. She looks to the definition of that term, “blast area,” 

2

 A matter of good luck, although the homeowners’ three children were home at the time 

of the blast event, as was their mother, no one was injured. To be precise, and as noted in the 

citation itself, the flyrock minimally penetrated the living room’s ceiling, “coming to rest just 

beneath [the] gypsum wall board lining the inner ceiling of . . . the living room.” The 

homeowner testified that some small particles reached the living room floor. Tr. 30. The fact 

the flyrock pierced the roof is ample evidence of the seriousness of the event. 

3

 “Rifling” refers to energy from a blast projecting upwards, instead of laterally. Poor 

loading practices or simply voids in the material being blasted can result in rifling. The 

conglomerate material being blasted at the Respondent’s mine increases the possibility of voids 

being present. Sec. Br. at 8. 

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which, as previously noted, is a defined term, and concisely expressed as “the area in which 

concussion (shock wave), flying material, or gases from an explosion may cause injury to persons.” 

The Secretary emphasizes that in this instance there is no need to speculate whether the flyrock 

could have caused an injury, since the rock not only reached the residence but pierced the structure 

itself. As damage actually happened here, the facts go beyond the situation where such material 

may cause injury, progressing to the point where it did cause damage to a residential home, and 

therefore the Secretary contends that the home was indisputably within the blast area. As ample 

warning must be given to those within the blast area, and Lakeview concedes it gave no warning at 

all to the residence’s occupants, the Secretary urges that the violation has been established. 

For its part, Lakeview contends that, at the time of the blast, it had no reasonable basis on 

which to extend the blast area to include the home, even though it acknowledges that the flyrock 

penetrated the structure’s roof, proceeded through the attic and ended up in the family’s living room.

 Lakeview relies upon the recounting of its blaster, who stated that the blast in issue was “nearly 

identical to prior blasts in the same area” and consequently it contends “that [the blaster, Robert 

Hylemon] acted reasonably and prudently with the ‘blast at issue.’” Lakeview Br. at 2-3. 

Accordingly, Lakeview asserts that, as the blast in question was only ten feet away from the 

previous blast and nearly identical to that earlier blast, it would be unreasonable to hold the mine 

liable under the cited standard and to expand the blast area simply because of the flyrock result here. 

Id. at 3. Thus, ultimately, it is Contestant’s position that the Citation should be vacated on the basis 

that the Secretary failed to meet her burden of proof. Id. at 4. 

In its Reply, the Secretary contends that Lakeview has missed the central point that its failure 

was not correctly determining the actual blast area. Sec. Reply at 1. Thus, Lakeview’s notifying 

those within the blast zone it identified means nothing if it incorrectly identified the zone itself.4 

Instead, the Secretary contends that the appropriateness of a blast zone is a blast-by-blast test, 

employed by an experienced mine blaster. In responding to Lakeview’s claim that the blast was “not 

unusual” from the other blasts it had detonated, the Secretary disputes that characterization, arguing 

that the location of the blast was certainly unusual due to its being located in the upper northeast 

corner of the highwall and so close to the recently built residences. The Secretary points out that 

even Lakeview’s Hylemon acknowledged that proximity to residences is a factor a blaster must 

consider. Yet Hylemon, the one who needed to know such information, did not even know of the 

existence of the nearby housing. A prudent blaster, the Secretary submits, should have examined 

the top of the highwall and thereby become informed as to what was above the spot where the blast 

was detonated. Without taking that action, Lakeview cannot claim that it made a proper assessment 

of the location of the blast. Id. at 2. 

The Secretary also challenges the claim by Lakeview that the incident in question was the 

only such occurrence by pointing out that the blaster, not learning until the next day of the damage 

4

 Illustrating the inadequacy of such a test, the Secretary asserts that if the blast zone is 

entirely up to the mine to designate, in theory, it could announce that the zone was as small as 

ten feet and then duly notify those in that area and meet its obligation. 

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to the house and being informed of this event by others, is hardly an authority on where flyrock had 

landed on other occasions.5 Last, the Secretary maintains that Lakeview misconstrues the 

Commission’s holding in Hobet Mining, arguing that the case stands for the principle that an 

experienced blaster must consider all relevant factors in determining the blast area. Here, it 

contends that Lakeview’s Hylemon failed to carry out that duty by not considering, in fact not even 

knowing, of the proximity of the blast to the nearby residences. Sec. Reply at 3. 

Discussion: Applicability of the standard to the uncontested facts. 

As Hobet Mining, 9 FMSHRC 200 (1987) was cited by both sides, and because that decision 

does address the duties attendant to blasting, it is a good starting point. Though a different standard 

was cited, 30 C.F.R. § 77.1303(h), it similarly provided that “[a]mple warning shall be given before 

blasts are fired.”6

 The standard also required that “[a]ll persons shall be cleared and removed from 

the blasting area” with “blasting area” itself defined as “the area near blasting operations in which 

. . . flying material can reasonably be expected to cause injury.” 30 C.F.R. § 77.2(f). In Hobet, the 

blast generated flyrock and one miner was struck by it, becoming paralyzed below his chest. The 

Commission expressed in that case that the Secretary must establish that the mine failed to properly 

consider and employ the factors which a reasonably prudent person, familiar with mine blasting and 

the protective purposes of the standard would have used, concluding that the Secretary did not meet 

that evidentiary requirement. Unlike the present case, in Hobet the inspector failed to ask if the 

blaster considered the various factors which included things like the amount and type of explosive 

used, the depth of the holes that constitute the shot, and the topography. Against that shortcoming 

the blaster testified, without contradiction, that he did take into account the various factors. 

Hobet is distinguishable from the present matter. As noted, Hobet vacated the order and 

citation on the basis that the Secretary failed to prove the alleged violation of section 77.1303(h). 

Per that decision, the determination of the blasting area depends upon a number of variables. These 

include, but are not limited to, factors such as the results of prior shots, the depths of holes for the 

shots, the experience of the blaster and the topography. The Commission expressly added that, 

while it identified some of the variables to be considered, its identification of some variables was 

not limited to those it mentioned. Id. at *203. Unlike in Hobet, where the blaster was not asked 

about the factors he considered before the blast, in the present matter Hylemon, Lakeview Rock’s 

blaster, was asked about his consideration of the nearby residences and he admitted that not only did 

5

 In the Court’s view, the Secretary’s point is well-taken. On this record, it is just as 

likely that on other occasions flyrock landed in other areas beyond where the blaster anticipated 

that it would. The record simply doesn’t inform about this, one way or the other. If for example, 

the flyrock here had landed in an open spot, such as an undeveloped lot in the residential area, 

and if no one was present to observe that event, it is very unlikely that Lakeview would have 

become aware of it, given what happened in this instance. 

6

 The text of the standard cited in Hobet as well as the definition of “blasting area,” 

remain the same in 2012, as in 1987. 

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he not consider the nearby homes, he did not even know of their presence, let alone their proximity. 

Thus, when the blaster was asked if he had calculated how nearby any residence was to where he 

was blasting and if he knew that a house had recently been built at that the location where the 

flyrock landed, he responded that he did not. Tr. 98. Nor did he go to the top of the pit where he 

was blasting and look around to see if anything new was up in that area. Tr. 99. The blaster also 

acknowledged the authoritativeness of the reference book, “Explosives and Rock Blasting,” though 

he was only “vaguely” familiar with it. Tr. 102-103. Importantly, the blaster agreed that “proximity 

to residences” is something a blaster should consider when planning a blast. Tr. 104. 

Although the Court considers it a side issue, the Secretary believes that the terms “blasting 

area” and “blast area” are distinguishable, asserting that the former has a limiting consideration – 

to flying material that can be reasonably expected to cause injury, but that the latter term, the one 

employed in section 56.6306, is broader in its application, encompassing the area where flying 

material may cause injury. Sec. Br. at 5. Thus, the Secretary asserts that there is no “reasonable 

expectation” limitation applicable to a “blast area.” Although asserting that there is a distinction, 

the Secretary alternatively submits that the circumstances in this case meet the “blasting area” 

definition anyway. It maintains that it has demonstrated the presence of the factors a reasonably 

prudent person, familiar with mine blasting and the standard’s protective purpose, would have 

considered, and which the Respondent failed to consider here. Such a reasonably prudent person 

engaged in blasting, it maintains, would have considered “the proximity of the blast to residences.” 

Sec. Reply at 3. 

In the Court’s view, although, strictly speaking, “blast area,” the term employed in this 

litigation and “blasting area,” the term examined by the Commission in the Hobet Mining case, do 

not share identical definitions, it is not easy to apply their differences. This is because, once one 

moves beyond these similar, albeit not identical, expressions, it becomes necessary to practically 

apply them. When so applied, in the Court’s view, there is no practical difference between the 

terms. This is because, the expression “ may cause injury” cannot reasonably be considered to apply 

to any possibility no matter how small. The effect of that conclusion is that, under Hobet, 

determining the “blast area” or the “blasting area,” both terms must mean the area where there is a 

reasonable expectation of an injury occurring. 

It is worth remembering that this case is not in the realm of speculation. Thus, there is no 

argument disputing that the blast occurred, that flying material left the mine site, that it landed on 

the house with sufficient force to penetrate the residence’s roof, not coming to rest until it reached 

the family’s living room. Sec. Br. at 4. The Secretary therefore contends, and the Court agrees, 

those undisputed facts demonstrate that the home was within the blast area.7 That being the case, 

7

 Though a fellow ALJ decision is non-binding on another ALJ, the Secretary notes that 

in Orica USA, 32 FMSHRC 709, 712 (2010) the judge did agree with the Secretary’s 

interpretation that a mine is not excused from the duty to protect those within the blast area 

simply because it is beyond the mine’s property lines. Sec. Br. at 4. 

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the Respondent was required to give ample warning to the homeowners and it is undisputed that the 

homeowners were given no warning at all.8 

Based on the foregoing discussion, the Court finds that the standard was violated. 

Although not the basis for this determination, the Court also considers that it would be 

reasonable to conclude that, absent a defiant employee’s intentional act, despite an ample warning 

to allow evacuation from the blast area, whenever there is injury to persons or structures housing 

persons resulting from blasting, liability under this blasting - ample warning and evacuation -

standard should be deemed as established. Remembering that, under the standard, ample warning 

shall be given before blasts are fired and that all persons shall be cleared and removed from the 

blasting area to protect them from blasting flyrock,9

 to allow all persons to be evacuated, it is clear 

that the intent of this standard is to ensure that miners are not injured from flyrock. Yet, in Hobet 

Mining, the Commission found no violation had where the blaster and two crew members “remained 

in the open . . . to detonate and observe the blast,” and a miner “sustained severe permanent injuries, 

including paralysis below his chest,” because of the lack of specific evidence to show that Hobet 

failed to consider “the various factors that affected flyrock generation.” Hobet at 203. Similarly, 

in Secretary v. Western Mobile New Mexico, Inc., 17 FMSHRC 2222 (December 18, 1995, ALJ), 

when an individual was “seriously injured” from flyrock, when he stood next to a pickup truck at 

the time of the blast, and the intended “shelter” was to take cover behind a pickup truck, the 

violation was vacated on the grounds that the blaster considered the factors a reasonably prudent 

blaster would have considered. 

These outcomes can be viewed as unusual, at least when individuals sustain injuries from 

blasting, and there is no willful defiance to take cover from flyrock. Such situations may be 

distinguished from situations where no injuries result from a blast and there is only speculation as 

to whether the blasting factors were fully considered. The non-liability determinations are unusual 

because, apart from this mine safety context, blasting is typically described in other liability contexts 

as an activity of an “ultra-hazardous nature” for which strict liability attaches for any resulting harm. 

In holding those conducting blasting accountable, courts frequently invoke the the principle of res 

ipsa loquitur. These principles have been long standing. For example, in Rote v. Bellefonte Furnace 

Company, 37 Pa. C.C. 315, 1906 WL 2951 (Pa. Comm. Pl.) (1906), homeowners close to a quarry 

8

 The Secretary notes that “ample” is not defined but that the dictionary defines it as 

something “‘marked by extensive or more than adequate size, volume, space or room’” and she 

draws from this that the warning must be “‘more than adequate.’” Sec. Br. at 5 (citations 

omitted). The Court notes that other dictionary sources include “[s]ufficient for a particular 

need,” under the definition of “ample.” Webster’s II New Riverside University Dictionary 

(1984). 

9

 While 30 C.F.R. § 56.6306 (f) speaks in terms of ample warning to allow evacuation 

from the blast area 30 C.F.R. § 77.1303 allows, as an alternative to evacuation from the blasting 

area, suitable blasting shelters to protect miners from flyrock. 

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had their dwellings hit by rocks produced by blasting. The mine failed to give notice of its blasting 

to the homeowners. As with Lakeview, the mine contended that it had “conducted [itself] along the 

safest and most careful lines known to the business.” Id. at * 1. However, the Court observed that 

“[s]uch blasting without ample warning is always dangerous, and might be fatal,” and it concluded 

that liability attached regardless of whether any negligence was involved. Id. at *3. Similarly, in 

Allegheny Coke Co. v. Massey, 174 S.W. 499, 163 Ky. 792, (March 26, 1915), the Pike County 

Circuit Court held that where blasting cast a rock upon one’s dwelling, the mine contractor was 

liable, regardless of negligence. There, ample warning was given before the blast and the family 

ran into their home. Unfortunately a rock went through a window, blinding a child in one eye. The 

point is that, where the activity is blasting, liability was found to be absolute. The Court observed, 

“it makes no difference whether precautions are used or not to prevent the injury . . . the act itself 

is a nuisance.” Id. at * 500. 

Thus, the cases involving blasting examine only whether harm resulted and hold those 

conducting that activity strictly liable. Accordingly, in cases such as Garland Coal & Mining 

Company v. Few, 267 F.2d 785 (10th Cir. 1959), an action by a landowner for damages from the 

adjacent mine’s blasting activity was upheld on a strict liability basis and that strict liability 

extended to more than flyrock, as it included damages from concussion and vibration. This has been 

the longstanding result in American jurisdictions where blasting operations produce harm; there is 

no duty to establish evidence of a breach of a standard of care to establish liability for harm from 

such activities. Smith v. Yoho, 324 P.2d 531, 533 (Okla. 1957), Ward v. H. B. Zachry Const. Co., 

570 F.2d 892, 895-96 (10th Cir. 1978). Thus, it seems an anomaly that, in the context of the remedial 

statute that the Mine Act is, liability for harm associated with blasting activity would be more 

burdensome to establish than in a common law proceeding. Obviously, adopting such a view would 

require a revisiting of the Hobet standard. However, if a strict liability approach were to be applied 

in instances such as Hobet and Western Mobile, mine operators would likely react with a more 

stringent approach in terms of these blast warning standards and situations such as the significant 

injuries in those cases would likely be reduced. So too, homes, such as the residence in this case, 

would be less likely to be assaulted by flyrock from blasting. 

Penalty Determination.
 

Significant and Substantial finding.
 

As noted, the blasting violation was marked as “significant and substantial” (“S & S”) by the 

issuing inspector. An S & S violation is described in section 104(d)(1) of the Act as a violation “of 

such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S 

“if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” 

Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has explained 

that 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 

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in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck 

Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 

F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance, offering “[w]e have explained further that the third element of the 

Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language 

of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must 

be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 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). 

Inspector Shadden marked Citation No. 6425423 as “S & S” upon his conclusion that the 

facts showed that there was a reasonable likelihood that the hazard contributed to would result in 

an injury of a reasonably serious nature. Speaking to the first two elements identified in Mathies 

Coal, the Secretary supports her assertion that this matter was significant and substantial based upon 

the establishment of the violation and that the risk of being struck by a rock from the blast 

contributed to a discrete safety hazard.10 As to the last two Mathies’ elements, the Secretary 

maintains that the lack of a warning denied the homeowners the chance to evacuate and thereby 

created a reasonable likelihood that the hazard would result in an injury. It is the Secretary’s 

position that the risk of flyrock is inherent whenever blasting is involved and, given that, the 

Respondent should have considered both that inherent risk along with the proximity of the 

residences to its blast site. Had those factors been appropriately considered in the equation, the 

Respondent would have been prompted to include the homeowners among those to be warned in 

advance.11 The Secretary asserts that the fourth Mathies’ element was clearly met, as the failure 

10 With regard to this element, the Secretary cites Central Appalachia Mining, 29 

FMSHRC 430 at 443-444 (June 2007) (ALJ), for the proposition that failure to provide ample 

warning of a blast creates a discrete safety hazard in that it deprives miners [and others] of the 

opportunity to take precautions to protect themselves from the blast’s possible consequences. 

11 As with a tornado warning, perhaps residents subjected to the risk of fly rock would 

retreat to their basement or some other more secure part of their homes if there had been a 

warning. Also, it is not unreasonable to assume that if the Respondent had been aware of the 

relatively close proximity of the homes, the mine would have taken other steps to reduce the 

(continued...) 

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to provide an advance warning of the blast created a reasonable likelihood of a fatal accident. Apart 

from GX 7, which is fatality report arising from an instance when flyrock from a blast struck a 

miner, the Court notes again that the fact the rock was able to go through the homeowner’s room and 

crash through to their living area more than suffices to demonstrate this element. A force of that 

size, creating the damage it did, obviously presented the risk of a serious injury. Accordingly, based 

on the above discussion, the Court finds that the violation was established as “significant and 

substantial.” 

Degree of Negligence 

Noting that the Part 100 regulations define “moderate negligence” as the situation when a 

mine operator did know or should have known of the violative condition or practice but for which 

there are mitigating circumstances, the Secretary maintains that when Lakeview moved to a new 

location for blasting, it was incumbent upon them to take steps to ensure that everyone in the blast 

area was adequately warned. Sec. Br. at 10. Instead, Hylemon not only failed to calculate and 

therefore consider the proximity of the residences to the blast site, he did not even know the homes 

were there. Had he examined the area above the top of the highwall, as he should have, he would 

have discovered the home sites. Further, while Hylemon asserted, in effect, that this was a one of 

a kind event and therefore, implicitly, unpredictable, the Secretary, as previously noted, observes 

that even after the event, Hylemon had no idea that flyrock had hit a residence until mine 

management so informed him the following day. Therefore, his testimony that this event was unique 

is unsupported. Given these undisputed circumstances, the Court agrees that Lakeview’s failures 

constituted at least moderate negligence. 

Based upon the Hobet standard, the finding that the violation was significant and substantial, 

and the result of at least moderate negligence, the remaining statutory criteria under Section 110(i) 

of the Mine Act also have been duly considered. Lakeview is a small to moderate operation, and 

its violation history is low to moderate. Exhibit A, associated with petition. Abatement was in good 

faith and there is no assertion that the penalties would affect the Respondent’s ability to continue 

in business.12 Upon consideration of those factors and the negligence and gravity, for which the 

Court believes the negligence is on the high end of moderate, approaching high negligence, and for 

the other aspects, as discussed above, the Court imposes a civil penalty of $1,000.00 (one thousand 

dollars) for this violation, an amount it considers to be a minimal assessment under these 

circumstances. 

11(...continued) 

flyrock. Even Hylemon agreed that the possibility of fly rock is the “number one thing” a blaster 

should consider in establishing a blast area, especially considering his acknowledgment that fly 

rock is the leading cause of injuries associated with blasting. 

12 These factors, excepting the analysis for gravity and negligence, apply equally to both 

matters involved in this litigation. See infra. 

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Citation No. 6580016. Alleged violation of 30 C.F.R. 56.3200.13 

During a regular inspection on August 31, 2009 at Lakeview Rock’s mine, MSHA Inspector 

Mary Busse observed what she believed to be an unstable highwall at the southeastern end of the 

mine. Her determination was based upon the presence of loose rock and the absence of an angle of 

repose. She also learned from a Lakeview supervisor that miners had been loading in the area at the 

base of that highwall only ten minutes before she observed the condition. Tr. 123. 

The Secretary notes, and it is uncontested, that Lakeview’s practice regarding the highwall 

is to bulldoze material from the top of the bench to the pit floor. This material then comes to rest 

at an angle of repose such that it stable and therefore safe for the day shift to then load it. Inspector 

Busse stated that on August 31st the material was not at an angle of repose. See, GX 8, GX 10, p. 

1, as marked by a dotted line and marked with a “C.”14 Adding to this, the Inspector observed a 

sheer vertical face of about 50 feet.15 Inspector Busse stated that there were several areas of loose 

material on the vertical face, including many rocks of football or basketball size. To these 

observations the Inspector stated that there was also a “crack,” also described as a “slip area,” on 

this wall, about 75 feet above ground level. This was significant to the Inspector because there was 

unstable material below that crack which could come down, posing a hazard to those below. 

In addition to Inspector Busse’s observations, MSHA Inspector Shane Mier also testified 

on the subject of the highwall. Mier was present on the same date as Busse and his testimony 

13 The cited standard provides: “Part 56. Safety and Health Standards--Surface Metal and 

Nonmetal Mines. Subpart B. Ground Control. Scaling and Support. § 56.3200 Correction of 

hazardous conditions. Ground conditions that create a hazard to persons shall be taken down or 

supported before other work or travel is permitted in the affected area. Until corrective work is 

completed, the area shall be posted with a warning against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry.” 

14 This was not the normal state of affairs. The absence of the normally present angle of 

repose was attributed to the bulldozer operator’s absence for a few days. Therefore the material 

from the top had not been pushed off, contrary to the customary practice. Although 

contradictory evidence was presented asserting that material had been pushed off from the top of 

the highwall on the Friday prior to the citation’s issuance, no one presented this claim to 

Inspector Busse at the time of citation’s issuance. For that reason, the Secretary urges that this 

tardy claim not be credited. The Court agrees that the claim is less reliable, coming late as it did. 

However, the more critical issue is whether the Court credits Inspector Busse’s observations that 

the highwall presented the dangerous conditions cited by the Inspector. The Court does so credit 

Inspector Busse’s assessment of the hazardous conditions with the highwall. The issue of when 

material had last been bulldozed from the top of the highwall is a secondary matter, not critical 

to the determination of whether there were hazardous ground conditions. 

15 This is indicated on GX 10, page 1, by a box between the two dotted lines and on GX 9 

at page 3, where the sheer face area was marked. 

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supported Busse’s findings, as he found the same hazards present. These included the presence of 

the “crack” Busse had observed, the failure to have the highwall sloped to the angle of repose, and 

the overhanging material above the area where the loader had been working. 

MSHA civil engineer James Pfeifer, qualified as an expert on highwall conditions, also 

concluded that the situation observed by Busse was hazardous.16 

Based upon the credible testimony of MSHA’s witnesses, the Court finds that there is 

substantial evidence that the highwall presented hazardous ground conditions at the time of 

Inspector Busse’s issuance of her citation. Though not critical to the finding of a hazard, there is 

also the testimony of Brad Trotter, Lakeview’s night shift supervisor, which also supports the 

conclusion that the highwall presented a hazard. Tr. 299-313. 

There is no genuine issue that miners were exposed to the hazardous conditions presented 

by the highwall, as Inspector Busse noted fresh tracks at the base of the wall and Mr. Trotter stated 

that the day shift crew had been in that area shortly before the Inspector’s arrival. Lakeview’s Pit 

Manager, Mr. Fowers, confirmed this as well, advising that a loader had been working at the base 

of the high until about 30 minutes before MSHA arrived. Based upon her observations, Inspector 

Busse issued a citation for a violation of 30 C.F.R. § 56.3200's requirement that “[g]round conditions 

that create a hazard to persons [are to be] taken down or supported before other work or travel is 

permitted in the affected area.” As the Inspector found the presence of loose, overhanging and 

cracked material and other dangerous conditions, the Secretary asserts that such hazards constitute 

a violation of the standard. Sec. Br. at 11, citing Hoover, Inc., 33 FMSHRC 751, 755 (ALJ 2011). 

The Court agrees. 

Lakeview’s perspective, while denying that the highwall was in fact hazardous, is more 

fundamental, as it contends that, even if one assumes that it was hazardous, the standard requires 

only that a barrier or a posting or warning be provided if workers could enter such an area 

“inadvertently.” Lakeview Br. at 4. Turning to MSHA’s Program and Policy Manual, Volume IV, 

it contends that, whatever the state of the highwall, the Secretary failed to provide any evidence that 

“workers could enter the area inadvertently.” Id. Lakeview notes that the Policy Manual “states that 

‘[p]osting of a warning against entry is required until corrective work is completed if workers could 

16 Engineer Pfeifer noted the presence of a semi-circular tension crack on the wall. Given 

that crack’s height on the wall, he believed a hazard existed. Pfeifer also concluded that there 

was a steep bank (described as a “scarp”) above the tension crack and this signified to him that a 

portion of the wall had already moved. These were not the only areas of concern he had with the 

highwall, as he detected the presence of semi-circular failure planes, indicative of past wall 

failures. The steepness and height of the wall below the scarp was another indicator that much 

material could fall. Last, Pfeifer noted the toe of the highwall was quite steep, a sign that a 

loader had been digging into the wall. Based on all of his observations, Pfeifer concluded that 

the safety of the highwall was at one or less, which is an unacceptable safety factor, presenting a 

hazardous condition. The Court credits Pfeifer’s analysis. 

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enter the area inadvertently.’” Id. at 4. In fact, Lakeview contends that inadvertent entry could not 

occur as the highwall was being attended “until at least a half an hour before the shift change,” and 

employees “were told or understood that ‘they [were] to stay out of the highwall.” Id. at 4, citing 

transcript at p. 301. In sum, Lakeview emphasizes that, although the Secretary spent much time 

concerning alleged highwall hazards, the standard is concerned about keeping miners away from the 

highwall and that miners are safe while working at or near it. Id. at 5. 

In its Reply Brief, the Secretary, assuming for the moment that Lakeview was correcting the 

highwall conditions when the citation was issued, maintains that such a claim does not disprove the 

violation.17 This is because MSHA’s Busse was informed that miners were working under the 

highwall when the violative conditions existed.18 The Secretary asserts that the standard requires 

that the area be posted with a warning against entry and when the area is left unattended a barrier 

must be installed to impede unauthorized entry and that these requirements must be in place until 

the corrective work is completed. Sec. Br. at 5. Here, it notes, there is no evidence in the record 

that any warning sign or barrier had been put in place. Id. In fact, the area was required to be 

bermed off in order to abate the citation.19 

Finally, the Secretary dismisses the claim that it is penalizing the mine operator for 

“addressing a hazardous condition in the course of Respondent’s normal operations,” because the 

standard requires that hazardous conditions are to addressed before work or travel occurs in such 

an area and the evidence shows that mining activity continued.20 Sec. Reply at 6. 

17 Describing it as irrelevant, the Secretary also asserts that the claim that a bulldozer was 

about to push material off the top of the highwall is unreliable as well because no one made such 

a claim to the MSHA Inspector at the time the citation was issued. The Secretary also points to 

contradictory testimony that Inspector Busse was advised no dozer operator would be present 

until the next day. Sec. Reply Br. at 5, citing Tr. 183. 

18 The Court agrees that when a mine is in the process of correcting a hazard when the 

inspector finds the violation, such activity does not foreclose the issuance of a citation where the 

evidence shows that the condition had not been corrected within a reasonable time after its 

discovery. Sec. Reply at 4, citing Peabody Coal, 1 FMSHRC 1121, 1135 (Aug. 1979) (ALJ) and 

Road Fork Development Co. , 2011 WL 4342749, *3, *14 (Aug. 2011) (ALJ). 

19 The Secretary also takes issue with the claim that there is no evidence in the record that 

the hazardous condition existed before she observed the conditions, pointing to the statement 

made to Inspector Busse admitting that miners had been beneath the highwall earlier that day 

and Mr. Trotter’s and Mr. Fowers’ concession that miners had been at the location shortly 

before. Sec. Reply at 6. 

20 Adding to that observation that conditions be corrected prior to work or travel 

occurring, the Secretary points out that Lakeview’s own night shift manager agreed that the 

(continued...) 

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Addressing Lakeview’s other contention, that the highwall did not present a hazard, the 

Secretary points to the testimony of MSHA witnesses Busse, Mier and Pfiefer, not to mention 

Contestant’s employee, night shift supervisor Trotter to refute that claim.21 

Discussion: 

An extended discussion of this violation is unnecessary. Given that the cited standard 

provides that “[g]round conditions that create a hazard to persons shall be taken down or supported 

before other work or travel is permitted in the affected area [and that] [u]ntil corrective work is 

completed, the area shall be posted with a warning against entry and, [further] when left unattended, 

a barrier shall be installed to impede unauthorized entry,” the evidence supports the Court’s finding 

that the ground conditions cited by Inspector Busse created a hazard, and that work occurred in the 

affected area before the hazard was corrected. Thus, the key to the standard is that ground 

conditions be corrected before work or travel occurs in the affected area. Here, with mining ongoing 

at the base of the highwall, the standard’s proscription against work in the affected area was 

violated. Accordingly, the violation was clearly established. 

Penalty Determination. 

As noted, Respondent was issued a section 104(d)(1) order, in which the negligence was 

marked as “high” and the gravity as “significant and substantial,” with the injury and illness 

category marked as “reasonably likely” and “fatal.” 

The standard for evaluating whether a violation is “significant and substantial” has been 

previously discussed. The unwarrantable failure terminology is taken from section 104(d) of the 

Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a 

violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. 

Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & 

20(...continued) 

conditions that the miners were exposed to were hazardous. Sec. Reply at 6, citing Tr. at 299, 

307-308. 

21 To Lakeview’s argument that the crack still existed after additional material was later 

pushed from the top of the highwall, the Secretary replies that does not refute that the condition 

cited was a hazard when cited by the inspector. In this regard the Secretary points out that an 

experienced inspector’s opinion that a hazard exists is entitled to substantial weight. Sec. Reply 

at 7, citing Twenty Mile Coal, 2011 WL 4440683, *29. (ALJ, August 2011). The Secretary also 

notes that the determination that a hazard existed was not limited to the crack as the sole basis 

for that conclusion. On the other side of the ledger, only Fowers’ testimony supports 

Lakeview’s claim. Reply at 8. Having considered the testimony of all the witnesses, the Court 

places more credence in those other witnesses. 

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Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); 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 of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 

FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest 

Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 

(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 

FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). 

All of the relevant facts and circumstances of each case must be examined to determine if an actor's 

conduct is aggravated, or whether mitigating circumstances exist. Consol., 22 FMSHRC at 353. 

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

unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., 

Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

Significant and Substantial finding. 

The Secretary contends that given the hazardous conditions found at the highwall and the 

exposure of miners working at its base, the violation was significant and substantial. Given the 

Court’s findings that the standard was violated and its finding that miners were exposed to the 

discrete hazard of highwall failure or a rock fall, the first two elements were clearly demonstrated. 

Regarding the likelihood element, the Secretary notes that the focus is whether the violation, if left 

uncorrected, could contribute to a safety hazard. The Court finds that Lakewood’s failure to 

adequately support the highwall and miners then working beneath that wall, contributed to a risk of 

serious, if not fatal, injury. 

Inspector Busse stated her belief that it was reasonably likely that a fatal injury would result 

from the conditions she observed and the exposure, she learned, that the miners faced. These views 

were well-supported by the record, as Inspector Busse expressed that a small provocation would 

have precipitated a highwall failure or a rock slide. The combination of the sheer face and the slip 

area coupled with the vehicles working at the base made it a reasonable likelihood that the hazard 

contributed to would result in an injury. Under these circumstances, it is plain that any such wall 

failure would result in injuries of a serious nature. The Court finds Inspector Busse’s assessment 

of the hazard and her determination that it was a significant and substantial violation to be the fact 

and it notes that the Inspector’s view was buttressed by the testimony of MSHA expert Pfeifer. 

Determination of Negligence and Unwarrantability 

The Secretary maintains that, as the condition of the highwall was obvious and presented a 

serious hazard, coupled with the fact that Lakewood knew or should have known about the 

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condition, establishes high negligence and unwarrantability. The Court agrees with this assessment 

of the negligence involved in this instance. Even Mr. Trotter agreed that the highwall was 

inadequate. Although the obviousness of the condition is sufficient to sustain the finding of high 

negligence and an unwarrantable failure to comply with the mandatory standard, pit manager Greg 

Fowers was in the area of the highwall and was or should have been aware of the highwall’s 

condition. Despite that, Mr. Fowers directed the loader operator to work at the base of the wall. 

While Mr. Fowers did not believe that the wall presented a hazard, that view has been rejected by 

the Court and the expression of Mr. Fowers’ view only serves to establish that he was aware of the 

state of the highwall, albeit that he held a very different perspective of its condition. Based on all 

the credible evidence of record, the Court finds that a high degree of negligence was involved and 

that Lakeview Rock’s failure constituted an unwarrantable failure. 

Order 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), and the 

discussion above, the Court assesses the following civil penalties: 

WEST 2009 1041, Citation No. 6425423 Penalty: $ 1,000.00 

WEST 2010 271, Citation No. 6580016 Penalty: $ 2,000.00 

For the reasons set forth above, Lakeview Rock Products is ORDERED TO PAY the 

Secretary of Labor the sum of $3,000.00 within 30 days of the date of this decision. Upon 

payment of the penalty, these proceedings are DISMISSED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

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Distribution: 

Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
 

800, Denver, CO 80202
 

Kevin Watkins, Esq., General Counsel, Lakeview Rock Products, P.O. Box 540700, 900 North
 

Redwood Road, North Salt Lake, UT 84054-0700
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 25, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. WEST 2009-168-M 

: A.C. No. 04-00119-166066 

: 

v. : 

GRANITE ROCK COMPANY, 

Respondent 

: 

: Mine: A. R. Wilson Quarry 

: 

DECISION 

Appearances: Larry Larson, Conference and Litigation Representative, 

U.S. Department of Labor, Mine Safety and Health Administration, 

Vacaville, California, on behalf of the Petitioner; 

Jan Coplick, Esq., U.S. Department of Labor, Office of the Solicitor, 

San Francisco, California, on behalf of the Petitioner;
 

Kevin Jeffery, Esq., Assistant General Counsel, Granite Rock Company,
 

Watsonville, California, on behalf of the Respondent.
 

Before: Judge Bulluck 

This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against 

Granite Rock Company (“Granite Rock”), pursuant to section 105 of the Federal Mine Safety 

and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil 

penalties in the amount of $3,990.00 for two alleged violations of the Act and her mandatory 

safety standards. 

A hearing was held in San Jose, California. The following are issues for resolution in 

this case: (1) whether Respondent violated 30 C.F.R. §§ 56.15005 and 56.11001; (2) whether the 

violations were significant and substantial; and (3) whether the violations were attributable to 

Granite Rock’s moderate negligence. Petitioner’s Post-hearing Brief is of record.1 For the 

reasons set forth below, I AFFIRM, as issued, the citations and assess penalties against 

Respondent. 

1

 Respondent elected not to file a Post-hearing Brief. 

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I. Stipulations 

The parties stipulated as follows: 

1. Respondent is the operator of the mine identified in the subject citations. 

2. Respondent is engaged in mining as that term is defined in the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801, the Mine Act. 

3. The Respondent is subject to the jurisdiction of the Mine Act. 

4. The Administrative Law Judge has jurisdiction in this matter. 

5. The history of violations as shown on Exhibit A attached to the Petition in this matter 

accurately reflects that of Respondent. 

6. The penalties of $3,990.00 will not affect Respondent’s ability to continue in business. 

7. When MSHA Inspector Jason Jeno issued the subject citations, he was acting in his 

official capacity as an authorized representative of the Secretary. 

8. Citation Numbers 6443254 and 6443255 were properly served by a duly authorized 

representative of the Secretary upon an agent of Respondent on the date and place stated herein. 

9. The two miners described in Citation Number 6443254 were not wearing fall 

protection equipment at the time Citation Number 6443254 was issued. 

10. Eric Lewis and Steve Davison were properly trained in the identification of fall 

hazards and the proper use of effective fall protection equipment. 

II. Factual Background 

Jason Jeno is an MSHA inspector, a position that he had held for three years at the time 

of the hearing. Tr. 12. Prior to working for MSHA, he had 10 years experience working in the 

mining industry as a lead man and operating engineer. Tr. 13, 39. His experience included 

operating a crusher, manufacturing materials at three hot plants similar to the products made by 

Granite Rock, and performing repairs on numerous conveyors. Tr. 39. 

The violations alleged in Citation Nos. 6443254 and 6443255 occurred on August 26, 

2008, when Jeno was conducting a regular inspection at the A. R. Wilson Quarry, a surface rock, 

sand, and gravel mine located in San Benito County, California. Tr. 14-15. Granite Rock 

produces rock and sand for construction and other uses. Tr. 14. Inspector Jeno was 

accompanied by William Edminister, an inspector trainee, Frank Marichi, the miners’ 

representative, and a mine foreman. Tr. 14. 

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Upon entering the area near the framework of the #4606 belt and #4919 magnet belt, 

Jeno saw two men working. Tr. 95. He approached the miners to observe their work practices, 

to ensure that lock-out/tag-out procedures were being followed, and to see whether they were 

wearing fall protection. Tr. 95. Once he arrived at the framework of the belts, he observed one 

miner standing on the #4606 conveyor belt and the other standing inside the framework of the 

#4919 magnet belt, working without wearing fall protection. Tr. 95-96. Consequently, he issued 

an imminent danger order to get the miners down from the conveyor belts. Tr. 95. Thereafter, 

based on his conversations with the miners, Jeno concluded that they were using the handrails 

and the framework of the conveyor to access and exit the belt and, accordingly, he issued the 

subject citations. Tr. 40. 

III. Findings of Fact and Conclusions of Law 

A. Citation No. 6443254 

Inspector Jeno issued Citation No. 6443254, alleging a “significant and substantial” 

violation of section 56.15005 that was “highly likely” to cause an injury that could reasonably be 

expected to be “fatal,” and was caused by Granite Rock’s “moderate” negligence. Section 

56.15005 requires that “[s]afety belts and lines shall be worn when persons work where there is a 

danger of falling; a second person shall tend the lifeline when bins, tanks, or other dangerous 

areas are entered.” 30 C.F.R. § 56.15005. The Condition or Practice is described as follows: 

Two miners who were working in an elevated position located in the secondary 

area of the mine were not wearing fall protection where there was a danger of 

falling. One miner was standing on belt #4606 helping another miner who was 

working inside the support structure for magnet belt #4919. This condition 

exposed the miners to an estimated 16 foot fall to the ground level below. A fall 

from this height would likely result in fatal injuries. 

Ex. P-1. The citation was terminated after the miners used a manlift, an altering forklift, 

extension ladders, and safety harnesses and lanyards to build a work platform to access the 

conveyor belts. Tr. 125. 

1. Fact of Violation 

In order to establish a violation of one of her safety standards, the Secretary must prove 

that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 

FMSHRC 2148, 2152 (Nov. 1989)). Granite Rock has conceded that the violation of section 

56.15005 occurred; however, it contests the gravity and negligence findings ascribed by the 

Secretary. Stip. 9; see Tr. 9. 

2. Gravity 

a. Likelihood and Type of Injury 

i. Testimony 

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Inspector Jeno testified for the Secretary. He opined that the violation was highly likely 

to result in an injury because the men, without fall protection and carrying hand tools, were using 

the handrails and the frame of the conveyor to climb onto and stand on the #4606 belt conveyor. 

Tr. 25, 44. Jeno explained that he took into account the surface itself, the tools, loose rock, and 

dust on the conveyor belt, the instability of working in a non-designated work area, the general 

unsafe conditions associated with working on top of a conveyor, and the nature of the work, 

itself. Tr. 36-37. Jeno estimated the #4919 magnet belt to be suspended from 16 to 18 feet 

above ground; the magnet belt was 16 feet on the lower side and 18 feet on the higher side of the 

#4606 belt conveyor. Tr. 25. Consistent with his training, Jeno added the height of the miner to 

the belt’s distance from the ground when he calculated the total fall distance. Tr. 48-49, 73-74. 

Jeno opined that a 16 to 18 foot fall, even a 12 foot fall, could be very serious because “usually 

falls from this height usually result in fatalities resulting from blunt force trauma striking an 

object on the way down, slip, trip, and fall hazard[s].” Tr. 26-28, 50-51. Furthermore, Jeno 

considered the configuration of the equipment and “took into account where the miner would 

fall, what he might fall into, what he might fall on and where he might fall[,]” when he evaluated 

the likelihood of an injury resulting in a fatality. Tr. 51. He testified that both miners could have 

fallen to the left onto the handrail or catwalk, or to the right onto the ground. Tr. 51. Jeno stated 

that he also took into account the fact that the miners could have fallen onto the travelway 

alongside the conveyor belt; however, he did not take into account the possibility that they could 

have fallen onto the screen deck, because the deck only covers the areas consisting of the width 

of the magnet belt and did not extend past the area where the miners were working. Tr. 52. 

Henry Ramirez, Granite Rock’s witness, had been the plant manager at the A. R. Wilson 

Quarry for 5 1⁄2 years. Tr. 119. He opined that the miners “made a poor judgment call in 

relation to whether they saw a hazard or not.” Tr. 120-21. He was told by the miners that they 

had used three points of contact when they climbed onto the #4606 conveyor to re-splice the 

#4919 belt.2

 Tr. 121-22. The three-points-of-contact method of access is covered under A. R. 

Wilson’s slip, trip, and fall safety training. Tr. 122. Ramirez also opined that four beams, 

situated to the left and right of the #4919 magnet belt, would provide some measure of protection 

against falling if the miners were kneeling or sitting on the conveyor belt to perform their work, 

but not if they were standing. Tr. 123-24; see Ex. R-3, R-4, R-5, and R-6. Furthermore, 

referencing three photographs in evidence, it was his opinion that if one of the miners were to 

fall off the conveyor belt to the right, he would land on the screen decking. Tr. 127; Ex. P-9, 

P-10, and P-11. 

Michael Herges, testifying for Granite Rock, had been the operator’s safety health 

services manager for 10 1⁄2 years. Tr. 139. Herges testified to the unlikelihood of injury based 

on the fact that the miners using three points of contact would have reduced the opportunity for 

2

 Inspector Jeno described the three-points-of-contact method as keeping “either both 

hands or both feet and then one foot or one hand on the equipment as you’re ascending or 

descending the area.” Tr. 84. 

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falling, one side of the conveyor belt was covered by a walkway and, on the other side, the 

greater height, the screen would have reduced the opportunity for a fall. Tr. 141-42. He 

measured the distance from the belt to the ground to vary from 6 to 8 feet, and the distance from 

the other side of the magnet conveyor and the pole to the ground to be 11 feet. Tr. 155-56. 

Herges also noted that the conveyor belt was dry and, therefore, posed no hazard. Tr. 148. He 

admitted, however, that he did not observe the conditions of the magnet belt and the surrounding 

equipment on the day that the citations were issued, but a day or two thereafter. Tr. 159, 173. 

Furthermore, he explained that there are four eyeholes on top of the magnet belt structure and a 

3/8 inch cable running the length of the conveyor that serve as sufficient tie-off points, and that 

the cable also serves as a barrier from falling on or against the belt. Tr. 159, 173, 176, 178. In 

his opinion, use of the cable to tie-off on the unprotected side of the belt would be effective, 

although he did not know whether it had been tested for its ability to sustain the weight of a 

person. Tr. 177, 181. Herges also testified that Granite Rock’s policy requires use of fall 

protection when working in elevations of over 4 feet without handrails, and that he had 

witnessed miners at the quarry wearing fall protection while working in elevated areas. Tr. 162. 

He opined that the two miners were properly trained, but stated that he had not personally 

witnessed them using fall protection. Tr. 162, 164. He testified that Granite Rock does not make 

a special effort to monitor use of fall protection; according to him, supervisors only check usage 

incidental to monitoring work progress. Tr. 165-66. 

ii. Analysis 

Jeno pointed out that, even if the miners had used three points of contact in accessing the 

work area and performing their tasks, they did not have use of handholds to climb, but only the 

frame of the #4919 belt, and they were carrying tools. Tr. 84. Moreover, because they were 

standing at least part, if not the majority, of the time that they were working, the #4919 magnet 

belt’s four beams would have provided only minimal, if any, protection. I credit Jeno’s 

assessment that both miners could have fallen to the left onto the handrail or catwalk, or to the 

right onto the ground, and incurred injuries in either scenario. Even if a left-sided fall onto the 

walkway or handrails would have broken the fall, the potential for serious injury, such as severe 

head trauma or even death, remains high. As for a fall from the right, the evidence indicates that 

the screen decking does not cover the entire right side of the framework, and falling onto the 

screen decking also poses a high likelihood of serious injury. See Ex. P-6, P-10. Respecting the 

work area, I find that the conveyor was in a troughing position, the surface was slippery, and the 

tools, dust, and rocks on the belt created slip, trip, and fall hazards. For these reasons, the 

Secretary has established the high likelihood that a miner would be seriously injured if he were 

to fall as a result of working in an elevated position of at least 8 feet, without wearing fall 

protection. Therefore, I conclude that Citation No. 6443254 was appropriately assessed as 

highly likely to result in an injury that could reasonably be expected to be fatal. 

b. Significant and Substantial 

Inspector Jeno opined that the violation was significant and substantial (“S&S”) because 

the miners’ method of accessing the conveyor put them above the safety devices provided, and 

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was not a suitable means of access to the conveyor.3 Tr. 27. He testified that “[t]he hazard [was] 

standing on a conveyor that’s not designed to be stand [sic] on or worked on. It’s a slippery 

surface. It’s in a troughing position, which cups and holds the materials. It’s not—it’s standing 

between the troughing rollers . . . .” Tr. 31. Furthermore, he asserted that the tools lying on the 

conveyor belt created tripping hazards, dust and loose rocks created slip, trip, and fall hazards, 

and standing between the troughing rollers created an unstable work surface. Tr. 37. 

In Mathies Coal Company, the Commission set forth four criteria that the 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies 

criteria). The Commission provided further guidance in U.S. Steel Mining Company: 

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.” We have emphasized that, in 

accordance with the language of section 104(d)(1), it is the contribution of a 

violation to the cause and effect of a hazard that must be significant and 

substantial. 

7 FMSHRC 1125, 1129 (Aug. 1985) (citations omitted); see also Musser Eng’g, Inc. And PBS 

Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). Additionally, “[t]he Secretary need not prove 

a reasonable likelihood that the violation itself will cause injury[.]” Musser at 1281. 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); 

U.S. Steel Mining Co., 6 FMSHRC 1573 (July 1984). Moreover, resolution of whether a 

violation is S&S must be based “on the particular facts surrounding the violation.” Texasgulf, 

Inc., 10 FMSHRC 498, 501 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 

(Dec. 1987). 

The first two Mathies criteria are easily satisfied. The fact of violation has been 

established, and the violation clearly contributed to the safety hazard of falling while working in 

an elevated position. The focus of the S&S analysis here is the third and fourth Mathies criteria, 

i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would 

3

 The S&S terminology is taken from section 104(d)(1) 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)(1). 

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be serious. As discussed above, falling a distance of at least 8 to 12 feet is reasonably likely to 

result in serious injury. 

In Great Western Electric, the Commission explained that a miner’s “position twelve feet 

above the ground presented a substantial height from which to fall.” 5 FMSHRC 840, 843 (May 

1983); see also generally Molton Co., LP, 31 FMSHRC 427 (Mar. 2009) (ALJ) (crediting an 

inspector’s testimony that fatal falls have occurred from heights of 10 feet or less, and finding an 

S&S violation where a miner was working without fall protection at a height of approximately 7 

feet); Cantera Green, 21 FMSHRC 310 (Mar. 1999) (ALJ) (finding S&S, safe access violations 

where workers were working 8, 10, and 12 feet above ground); Laramie Cnty. Road & Bridge, 

17 FMSHRC 902 (June 1995) (ALJ) (crediting an inspector’s testimony that miners have been 

seriously injured and killed as a result of falling from heights of 8 to 12 feet, and finding an S&S 

violation). Moreover, the Commission has acknowledged that “[e]ven a skilled employee may 

suffer a lapse of attentiveness, either from fatigue or environmental distractions, which could 

result in a fall.” Id. at 842. Based on the evidence, I find that a fall from 8 to 12 feet would 

reasonably result in serious injuries ranging from broken bones and head trauma, possibly death. 

Therefore, I conclude that the violation of section 56.15005 was S&S. 

3. Negligence 

Jeno testified that “the mine operator had provided training to the miners, and there was 

[sic] no immediate supervisors in the area. And based on training that the miners told me that 

they had received, I chose moderate negligence rather than high negligence to the company.” 

Tr. 28; Stip. 10. Harnesses and lanyards were located on the service truck nearby. Tr. 55. The 

aggravating factors that Jeno considered were lack of supervisory oversight of safety 

compliance, and lack of a job task analysis prior to commencement of the work. Tr. 55, 58. 

Jeno considered mitigating, the fact that two months prior, the same miners had identified a safe 

access hazard at another elevated work area, and the operator had permitted them to build a 

suitable work platform. Tr. 55-57. In summary, Jeno stated that the operator should have 

“[s]upervise[d] the area, instructed the miners in how to do it, [and performed] job tasks analysis 

before the work was conducted.” Tr. 58. I have considered Granite Rock’s fall protection policy 

and training, as well as its passive monitoring of compliance, and find that it was moderately 

negligent in violating the standard. 

B. Citation No. 6443255 

Section 56.11001 requires that “[s]afe means of access shall be provided and maintained 

to all working places.” 30 C.F.R. § 56.11001. Jeno issued Citation No. 6443255, alleging an 

“S&S” violation of the standard, after observing the manner in which the miners were accessing 

the area in which they were working on the belts. The Citation further alleges that the condition 

was “highly likely” to cause an injury that could reasonably be expected to be “fatal,” and was 

caused by Granite Rock’s “moderate” negligence. The Condition or Practice is described as 

follows: 

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A safe means of access was not being provided to access the magnet belt #4919 

located in the secondary area of the mine. Two miners were accessing the magnet 

belt by means of climbing up the travelway handrails for belt #4606 and standing 

on belt #4606. This condition exposed the miners to a fall of about 16 feet to the 

ground level below. A fall from this height would likely result in fatal injuries. 

Ex. P-3. 

1. Fact of Violation 

The Commission has held that section 56.11001 embodies the dual requirement of 

providing and maintaining safe access to working places. Watkins Eng’rs & Constructors, 24 

FMSHRC 669, 680 (July 2002). A violation may be found when either or both prongs of the 

standard are not met. An operator’s duty to “provide” a safe means of access incorporates the 

responsibility to instruct its employees on the procedure for safe access. Id. at 681. By 

interpreting “maintain” according to its plain meaning, the Commission has concluded that the 

term “requires an operator to uphold, keep up, continue, or preserve the safe means of access it 

has provided to a working place.” Lopke Quarries, Inc., 23 FMSHRC 705, 708 (July 2001); 

Western Indus., Inc., 25 FMSHRC 449, 452 (Aug. 2003). The Commission has further 

explained that the duty to maintain safe access requires constant vigilance because it 

“‘incorporates an on-going responsibility on the part of the operator to ensure that [the] means of 

safe access is utilized, as opposed to a purely passive approach in which an operator initially 

provides safe access and then has absolutely no further obligation.’” Watkins, 24 FMSHRC at 

680 (quoting Lopke, 23 FMSHRC at 708). More is required than simply making a safe means of 

access “available,” “[a]t a minimum, the standard’s requirement that operators ‘maintain’ safe 

access to working places mandates that management officials utilize that access, and require 

other miners to do so.” Lopke, 23 FMSHRC at 709. 

a. Testimony 

Inspector Jeno testified that he was told by the miners that “they had to use the handrails 

and the framework of the conveyor to enter and exit the belt” and, therefore, he concluded that 

they had misused the handrail as a ladder to access the #4606 conveyor. Tr. 40; see Tr. 35, 36. 

He described one miner’s access by testifying that “[t]he handrails would have been to his right. 

He stepped up onto the mid-rail to his right and then lifted himself up, swung his foot over onto 

the frame of the conveyor and then stepped onto the belt.” Tr. 107-08. Furthermore, he opined 

that, by stepping onto the handrail, the miners situated themselves above it and rendered it 

ineffective. Tr. 26. Jeno concluded that Granite Rock did not provide a safe means of access for 

the miners because no ladders were used, no ladders were provided at the end of the conveyor 

catwalk to access the #4919 magnet belt, and a man basket was available, but not used. Tr. 60. 

Additionally, he testified that he did not see any ladders or man baskets in the work area, and 

that he did not ask the miners whether they had been provided with ladders. Tr. 63-64, 78-79. 

In Jeno’s opinion, portable ladders would have provided safe access to the work area. Tr. 80. 

Jeno initially testified that no tie-offs were available to which the miners could attach their 

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lanyards but, subsequently, acknowledged that the four eyeholes may have been adequate tie-off 

points if they had been within their reach. Tr. 62-63. However, he pointed out that the eyeholes 

were inaccessible while the miners were actively climbing the framework. Tr. 75. He also 

opined that the miners, with tools in hand, could not have ascended onto the conveyor by using 

the three-points-of-contact method. Tr. 84-85. Furthermore, he noted that it takes both hands to 

repair or change belt clips. Tr. 90-91. 

Henry Ramirez testified that the miners told him “that they used three points of contact 

when they climbed onto 4406.” Tr. 121-22. Climbing on equipment with three points of contact 

is something that is covered in A. R. Wilson’s slip, trip, and fall safety training. Tr. 122. 

Ramirez did not see the miners access the work area, and was unsure of how the tools got onto 

the conveyor belt. Tr. 129-30. According to him, stepladders are standard equipment carried by 

the miners on their trucks but, because he was not present when the citations were issued, he did 

not know whether there was a ladder in the area at that time. Tr. 131-32. 

Michael Herges testified that Granite Rock’s safe means of access at the time of the 

citation would have been the three-points-of-contact method, and that miners are trained to use 

this procedure in accessing elevated areas. Tr. 145, 168. He opined that the standard was not 

violated because, presumptively, the three-points-of-contact method was used, sufficient tie-offs 

existed for use of lanyards and harnesses, and the conveyor belts could be accessed safely by 

using a portable ladder. Tr. 159, 163, 168. He drew these conclusions without having observed 

the miners accessing their work area on the day in question. Tr. 130, 164. As mentioned 

previously, Granite Rock only monitors miners’ implementation of safety training tangential to 

supervisory oversight of work progress. Tr. 165-66. 

b. Analysis 

The record does not support Granite Rock’s position that the three-points-of-contact 

method provided a safe means of access for the miners. Rather, I am persuaded that the miners 

could not have accessed the belts by keeping three solid points of contact at all times, especially 

because they had to climb the belt framework and, unlike climbing a ladder, there were no 

handholds for use during their ascent. Tools were present on the belt, and it is reasonable to 

infer that the miners carried some, if not all the tools, as they climbed up the conveyor belt 

framework. Moreover, the miners were repairing and changing belt clips which, as the Secretary 

has established, required use of both hands. Therefore, I find that at all times, the miners’ hands 

were encumbered while they were accessing the work area, as well as while they were working 

and, for that reason, they could not have utilized the three-points-of-contact method, even if it 

were a safe way to access the work area and perform their duties. 

The record also establishes that Granite Rock provided ladders to the miners for use in 

accessing the conveyor belts, based on credible testimony that stepladders are standard pieces of 

equipment on the trucks. Jeno opined that use of portable ladders is a safe means of accessing 

the work area, and admitted that, although he did not see a ladder at the end of the conveyor 

catwalk, he did not ask the miners whether ladders had been made available to them. 

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Additionally, the operator provided the miners with lanyards and harnesses. The four eyeholes 

located on top of the magnet belt structure and the 3/8 inch cable were sufficient tie-offs, and the 

cable also provided additional fall protection while they were working. Even Jeno conceded that 

the four eyeholes, overlooked in his initial assessment, may have been adequate tie-offs. 

Therefore, because Respondent provided the miners with safe access equipment, i.e., ladders, 

harnesses and lanyards, the first prong of section 56.11001 has been satisfied. 

Providing training and safety equipment alone, however, is not enough to satisfy the 

requirements of section 56.11001; the standard requires more. The operator has an on-going, 

active responsibility to ensure compliance with safe means of accessing work places. At the 

time that the citations were issued, no supervisors were in the area to ensure that elevated areas 

were being accessed safely by use of the safety equipment provided to the miners. As a result, 

the miners were unprotected, their lanyards and harnesses were in the truck, and no portable 

ladders were being used to access the framework of the conveyor belt. Moreover, although it has 

been established that the miners had been properly trained, it is clear from the record that Granite 

Rock’s compliance oversight was passive at best, the “purely passive approach” that the 

Commission has rejected in Watkins and Lopke. Accordingly, I conclude that the Secretary has 

established, by a preponderance of the evidence, that Granite Rock violated section 56.11001 by 

failing to maintain safe access to the #4606 conveyor and #4919 magnet belts. 

2. Gravity 

a. Likelihood and Type of Injury 

Jeno marked Citation No. 6443255 as “highly likely” to result in an injury because 

“[t]here was no ladder. There was [sic] no handrails. There was no platform to work on so, 

therefore, the miners were working from the belt.” Tr. 33. He did not consider how many points 

of contact the miners may have used when they accessed the work. Tr. 41. When asked how 

misusing the handrails was highly likely to cause death, Jeno responded that “they stepped onto 

the conveyor. They stepped onto the handrail, which puts them above the handrail. Now it 

becomes ineffective. And then they’re stepping across over onto the frame of the conveyor, 

which now they have to straddle for a brief second to put the other foot on the frame of the 

conveyor and then swing the other leg onto the conveyor itself.” Tr. 26. For the same reasons 

that were discussed respecting the fall protection violation, the Secretary has established the high 

likelihood that if a miner were to sustain a fall of 8 to 12 feet, the injury could reasonably be 

expected to be fatal. 

b. Significant and Substantial 

Under the same analysis applied to Citation No. 6443254, I find that the violation of 

section 56.11001 in Citation No. 6443255 was S&S. To reiterate, the violation has been 

established, it contributed to the hazard of falling from an elevated work area, it was reasonably 

likely to result in an injury because of the minimum fall distance of 8 to 12 feet, and the resulting 

injury would likely be serious, i.e., broken bones and head trauma, or death. 

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3. Negligence 

Jeno ascribed moderate negligence to the violation. He considered mitigating, the fact 

that Granite Rock had properly trained the miners in identification of fall hazards and proper use 

of fall protection equipment, provided them with access to portable ladders, lanyards and 

harnesses, and had permitted them to build a safe work platform two months prior to the instant 

violations. Aggravating factors that Jeno considered were absence of ladders in the work area, 

lack of supervisory oversight to ensure safety compliance, lack of a job task analysis, and 

Granite Rock’s overall passive approach to monitoring compliance with its safety policies and 

procedures. It is evident that Granite Rock knew or should have known that it had an on-going 

responsibility to ensure that its miners were utilizing the safe means of access that had been 

provided to them. Accordingly, I find that Granite Rock was moderately negligent. 

IV. PENALTY 

While the Secretary has proposed total civil penalties in the amount of $3,990.00, the 

judge must independently determine the appropriate assessment by proper consideration of the 

six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg 

Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, I find that Granite Rock is a large operator. Despite 

Stipulation No. 5, which purports to address the mine’s violations history, but does not, the 

Secretary has not proffered any evidence of prior violations of the subject standards during the 

relevant time period. Therefore, I find that Granite Rock’s history of violations is neither an 

aggravating nor mitigating factor. As stipulated by the parties, the total proposed penalty will 

not affect Respondent’s ability to continue in business. Stip. 6. I also find that Granite Rock 

demonstrated good faith in achieving rapid compliance after notice of the violations. Ex. P-1; 

Ex. P-4. 

The remaining criteria involve consideration of the gravity of the violations and 

Respondent’s negligence in committing them. These factors have been discussed fully, 

respecting each citation. Therefore, considering my findings as to the six penalty criteria, the 

penalties are set forth below. 

A. Citation No. 6443254 

It has been established that this S&S violation of 30 C.F.R. § 56.15005 was highly likely 

to cause an injury that could reasonably be expected to be fatal, that two persons were affected, 

that Granite Rock was moderately negligent, and that it was timely abated. Applying the civil 

penalty criteria, I find that a penalty of $1,995.00, as proposed by the Secretary, is appropriate. 

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B. Citation No. 6443255 

It has been established that this S&S violation of 30 C.F.R. § 56.11001 was highly likely 

to cause an injury that could reasonably be expected to be fatal, that two persons were affected, 

that Granite Rock was moderately negligent, and that it was timely abated. Applying the civil 

penalty criteria, I find that a penalty of $1,995.00, as proposed by the Secretary, is appropriate. 

ORDER 

WHEREFORE, Citation Nos. 6443254 and 6443255 are AFFIRMED, as issued, and it 

is ORDERED that Respondent PAY a civil penalty of $3,990.00 within 30 days of this decision. 

Accordingly, this case is DISMISSED. 

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

Administrative Law Judge 

Distribution: (Certified Mail) 

Larry Larson, CLR, U.S. Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor, 

Vacaville, CA 95687 

Jan Coplick, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite 3-700, 

San Francisco, CA 9410 

Kevin Jeffery, Esq., Assistant General Counsel, Granite Rock Company, 350 Technology Drive, 

Watsonville, CA 95076 

/cjw 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 27, 2012 

SECRETARY OF LABOR, MINE : CIVIL PENALTY PROCEEDING 

SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2011-34 

Petitioner : A.C. No. 12-02394-233729 

:

v. :

 :

BLACK PANTHER MINING, LLC, : Mine: Oaktown Fuels Mine No. 1 

Respondent :

 : 

DECISION AND ORDER 

Appearances:	 Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois for Petitioner 

Drew Miroff, Esq., Ice Miller, Indianapolis, Indiana for Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

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 Panther Mining, LLC (“Black Panther” or “Respondent”), 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”). In my view, as expressed in pre-hearing conference calls, this case should not have been 

tried, but MSHA refused to back off the unwarrantable failure designation. Accordingly, 

unnecessary time and resources were devoted to this litigation. 

A single section 104(d)(1) Order dated August 17, 2010 remains at issue.1 The condition 

1

 The parties made a joint motion on the record to settle the two other citations in Docket 

No. Lake 2011-34. The parties agreed that Order No. 8429032 alleging a section 104(d)(1) 

unwarrantable failure to comply with 30 C.F.R. 75.361(a) would be modified to a section 104(a) 

citation, with moderate negligence and a reduced penalty of $460. The parties further agreed 

that section 104(d) Order No. 8429035 would be modified to a section 104(d)(1) citation with a 

statutory minimum penalty of $2,000. I have considered the representations presented and 

(continued...) 

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or practice alleged to be a significant and substantial (S&S) and an unwarrantable failure 

violation of 30 C.F.R. § 75.1725(c)2 is as follows: 

Repairs or maintenance were being performed on the 2 Main South belt 

at crosscut number 2 without power removed from the drive motors and 

blocked against motion. The maintenance chief was observed with a 

chain hoist on two separate sections of belt frame ratcheting them 

together. Drive motors number 1 and number 2 were observed plugged 

into the power center at crosscut number 1 with the emergency stop 

switch for motor number 2 engaged. This violation is an unwarrantable 

failure to comply with a mandatory safety standard, and the 

maintenance chief has engaged in aggravated conduct constituting more 

than ordinary negligence. 

Pet. Ex. 1. The gravity is alleged to be reasonably likely to result in an injury or illness that could 

be reasonably be expected to result in lost workdays or restricted duty, with one person affected. 

Negligence is alleged to be high. The proposed penalty is $2,000, the statutory minimum under 

section 110(a)(3)(A). The Order was terminated when the work on the conveyor belt was 

completed before the situation could be addressed. 

Respondent admits operator, mine, authorized representative, and interstate commerce 

status, but denies the violation and concomitant gravity, negligence, S&S, and unwarrantable 

failure findings and the validity of the civil penalty. 

An evidentiary hearing was held in Indianapolis, Indiana on November 7, 2011, after 

repeated conference calls failed to settle this matter. The parties introduced testimony and 

documentary evidence, and witnesses were sequestered. At the conclusion of the hearing, based 

on the credible testimony from each of the Respondent’s witnesses and the inability of MSHA 

Inspector, Anthony DiLorenzo, to testify from firsthand knowledge as to how the power system 

worked, I granted a “directed verdict” vacating the citation. I found that the power was turned 

1

(...continued) 

conclude that the proposed settlement is appropriate under the criteria set forth in Section 110(i) 

of the Act. Accordingly, the joint motion to approve partial settlement in Docket No. Lake 

2011-34 is approved. See Tr. Tr. 25-26. 

2

 30 CFR 75.1725(c) provides: 

Repairs or maintenance shall not be performed on 

machinery until the power is off and the machinery is 

blocked against motion except where machinery motion is 

necessary to make adjustments. 

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off and the machinery was blocked against motion when Respondent’s maintenance chief, John 

Vennard, made the repairs at issue. Tr. 212. 

On the entire record, including my observation of the demeanor of the witnesses,3

 and 

after considering the post-hearing briefs, I make the following: 

II. Factual Background 

A. Stipulated Facts 

The parties stipulated to the following facts. 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over this 

proceeding. 

2. At all times relevant to these proceedings, Black Panther Mining, LLC's operations 

affected interstate commerce. 

3. At all times relevant to these proceedings, Black Panther Mining, LLC is owned and 

operated by the Oaktown Fuels Mine No. 1, which is located in Knox County, Indiana. 

4. The Oaktown Fuels Mine No. 1 is an underground mine for the extraction of 

bituminous coal. 

5. Black Panther Mining, LLC began underground mining at the Oaktown Fuels Mine No. 

1 in April of 2007. 

6. If the citation and penalty proposed in this case are upheld, Black Panther Mining, 

LLC's ability to continue operations would not be threatened. 

7. Citation No. 8426631, which is the order at issue, was issued to Black Panther Mining, 

LLC on August 17, 2010, pursuant to section 104(d) of the Federal Mine Safety and Health Act 

of 1977. 

8. The subject citation was properly served upon an agent of Black Panther Mining, LLC. 

9. Maintenance chief, John Vennard, was performing maintenance on the 2 main south 

belt assembly at crosscut number 2 on August 17, 2010. 

3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

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

other events, corroboration or lack of corroboration for testimony given, and consistency or lack 

thereof within the testimony of witnesses and between the testimony of witnesses. 

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10. At the time Mr. Vennard was performing maintenance on the 2 main south belt 

assembly, the belt's drive motors number 1 and number 2 were plugged into the power center at 

crosscut number 1. 

11. The emergency stop switch at the power center for drive motor number 2 was 

engaged. 

12. The emergency stop switch at the power center for drive motor number 1 was not 

engaged. 

B. The Inspection 

1. MSHA’s Witness 

On August 17, 2010, MSHA’s certified mine inspector, Anthony DiLorenzo,4 visited 

Respondent’s mine with a trainee (T. Blair)5 to conduct an EO2 spot ventilation inspection. Tr. 

37, 41, 44; P. Ex. 2, p. 2. DiLorenzo and Blair were accompanied underground by Respondent’s 

safety director, Matt Dowell. DiLorenzo made contemporaneous notes during the inspection, but 

otherwise I find that DiLorenzo’s testimony and recollection was not very reliable. Tr. 43, 47, 

194; P. Ex. 2. 

DiLorenzo spent the majority of the inspection at the active section (MMU-003-004) of 2 

Main South in an area where the roof had recently fallen near cross cut 16. Thereafter, 

DiLorenzo, Blair, and Respondent’s safety technician trainee, Bobby Cox,6 walked the 2 Main 

South belt from the tail piece out-by the belt drive, checking ventilation stoppings and air flow, 

and looking for coal dust or rock dust on surfaces. Tr. 42-43, 194; P. Ex. 2, pp. 1 and 3. 

DiLorenzo’s notes reflect the belt was down at that time. P. Ex. 2, p. 7. 

DiLorenzo initially testified that while walking the belt he saw Respondent’s maintenance 

chief, John Vennard, shift maintenance foreman, Jason York, and unit mechanic, Greg Simmons, 

ratcheting two pieces of the belt frame back together, with a standard chain hoist or come-along, 

in order to slide a cotter pin back into the structure. According to DiLorenzo, they were working 

both sides of the belt. Tr. 44-46, 96. DiLorenzo’s notes indicate that Vennard was performing 

4

 DiLorenzo was an acting field office supervisor at the time. He started with MSHA in 

July 2007, became an authorized representative in August of 2008, and had slightly over 4 1⁄2 

years of previous mining experience. Tr. 37-38. 

5

 Blair did not testify to corroborate the testimony of DiLorenzo, the Secretary’s sole 

witness. 

6

 Cox did not testify, but was still employed by Respondent. Tr. 199. Dowell testified 

that Respondent spoke to Cox before trial, but Cox purportedly could not recall anything about 

the citation at issue. Tr. 200. 

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the work and York and Simmons were standing in the area watching. P. Ex. 2, p. 9; but see id. at 

11 noting “men working on belt.” Dowell was apparently still in the travel way entry when 

DiLorenzo made this observation. Tr. 46-47. I do not credit this testimony from DiLorenzo 

since he distanced himself from this testimony in subsequent testimony and the preponderance of 

the credible evidence indicates that Vennard and Simmons were performing the work and York 

was stationed at the belt master, as explained below. 

DiLorenzo testified with uncertainty that he probably walked within a yard of where 

Vennard was performing the work and probably asked how are you doing, what’s going on, but 

could not recall whether he had any conversation with or made eye contact with Vennard before 

heading towards the power center, as described below. Tr. 91-92. DiLorenzo observed that the 

chain hoist was attached to two separate sections of the belt stretcher (rail) and Vennard had his 

arm on the inside of the stretcher between the structure and the belt and was ratcheting the two 

sections of the rail together from outside the structure in order to insert a cotter pin that was 

missing. Tr. 55-56, 93-94, 95; see R. Ex. 7. 

DiLorenzo never saw anyone in contact with the belt. Tr. 96. According to DiLorenzo, 

York and Simmons were just observing, standing there waiting. Tr. 55-56. Based on his 

experience performing similar maintenance, DiLorenzo testified that it would take less than 30 

minutes to ratchet two frames back together. Tr. 57. 

Subsequently, DiLorenzo testified that York and Simmons were just in the area and he did 

not see them perform any actual work. Tr. 57. On subsequent questioning from the Court during 

cross examination as to which side of the belt he saw York on, DiLorenzo testified that at one 

point in time York was on the off side of the belt (i.e., opposite the belt master), but “they were 

not just all standing in one location, they were moving around to different forms.” Tr. 88-89. I 

do not credit this testimony about York’s location. Rather, I find consistent with the credible 

testimony of each of Respondent’s witnesses, as set forth below, that Vennard posted York at the 

belt master and York did not leave that area. Thereafter, on further cross, DiLorenzo conceded 

that he never saw York or Simmons perform any work on the structure. Tr. 112. 

DiLorenzo testified that he observed Vennard for about one minute, more or less, and 

recalled that Vennard’s arm was inside the belt frame (over the structure) for about 10-15 

seconds. Tr. 60, 92, 103. DiLorenzo testified that if the belt started while Vennard’s arm was 

inside the frame, the chain hoist possibly could have unlatched and whipped around striking 

Vennard, or Vennard could have been hit by the chain structure or the belt itself, likely causing 

cuts or lacerations to his arm. Tr. 59. 

DiLorenzo then continued walking out-by toward the belt drive and then walked toward 

the power center in cross cut 1. Tr. 48. He could not recall whether anyone was at the belt 

master when he walked to the power center. Tr. 58. He testified that the belt master in 2 Main 

South belt was about 120-150 feet away from the power center, which was located in cross cut 1 

on the opposite side of the secondary escapeway. Tr. 58; see R. Ex. 8. DiLorenzo further 

testified that as he walked down the 2 Main South belt, he should have seen anyone who was 

posted at the belt master and would have annotated that in his notes. Tr. 58-59. His notes do not 

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reflect that anyone was stationed at the belt master. P. Ex. 2. I give little weight to this 

testimony from DiLorenzo because his recollection was not impressive, particularly concerning 

where York was located, and the Secretary adduced no testimony concerning DiLorenzo’s 

practice, customary or otherwise, with regard to taking notes. 

Dowell rejoined DiLorenzo at the power center. Tr. 49, 110. At that location, DiLorenzo 

observed that the power cable for drive motor no. 1 and 2 were coupled into the power center, and 

the emergency stop (e-stop) for drive motor no. 2 was engaged, i.e., physically depressed to open 

the circuit, but the e-stop for drive motor no. 1 was not engaged. The belt was not running. Tr. 

48, 80-81; see R. Ex. 1 and 2.7

 Dowell confirmed that the power center circuit was open as one 

of the e-stops was engaged, and the manual off switch and e-stop at the belt master were also 

engaged. Tr. 203-05. Consistent with his training and experience, DiLorenzo testified that 

“power off” meant that the circuit breaker is open and the power couplings are removed from the 

power source. Tr. 49, 57, 65, 116. 

DiLorenzo rhetorically asked Dowell, “Am I seeing this correctly” or “Is this really what 

it appears to be?” DiLorenzo testified that it was obvious that the power cables were still coupled 

into the power center that was supplying power to the drive motors and only one circuit breaker 

was open. Tr. 50, 65. He could not recall what Dowell said, if anything, in response, but opined 

that Dowell’s facial expressions conveyed displeasure. Tr. 50. Dowell could not recall 

indicating any displeasure and does not recall arguing with DiLorenzo at this point. Tr. 206. 

When repeatedly asked by the Court what specific facial expressions he observed, DiLorenzo 

could offer nothing more than the opinion that Dowell was tight lipped. Tr. 51-53. DiLorenzo 

testified that he remained at the power center about 10-15 minutes. Tr. 92. 

DiLorenzo and Dowell then traveled from the power center back towards the belt line, 

which was about 90 feet away, where Vennard, York, and Simmons were stationed along the belt. 

 DiLorenzo testified that he intended to remove all miners from the area until the power to the belt 

drive motors was turned off according to DiLorenzo’s understanding of MSHA policy. By the 

time DiLorenzo arrived, however, the work had been completed. 

The whole sequence of events lasted less than 10 minutes, but DiLorenzo testified in 

response to a leading question that the condition need not last a long period of time for an injury 

to occur because it would take just several seconds for someone to turn the belt back on. Tr. 55, 

66. DiLorenzo testified that Vennard was not in a position to prevent anyone from starting the 

drive motor no. 1 at the belt master. Tr. 59. 

7

 On cross examination, DiLorenzo conceded that if the e-stop was engaged on one drive 

but not on the other drive, the belt would not move. He further testified that if the belt was 

running and one of the e-stops was engaged, the belt would shut off. Tr. 80. DiLorenzo refused 

to concede, however, that if one attempted to restart the belt with only one circuit breaker open, 

the belt would not move. Rather, DiLorenzo opined, without verification or testing, that the belt 

could move because there was still one closed circuit to the second drive motor. Tr. 81-82, 105. 

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DiLorenzo testified that he spoke with Dowell and Vennard about the alleged violative 

practice and the potential action that he would be taking after checking his references. P. Ex. 2, p. 

12; Tr. at 67-69, 97. DiLorenzo further testified that as he was leaving to return to the surface, 

the operator restarted the 2 Main South belt, but DiLorenzo did not see how this was done. Tr. 

73. 

Once DiLorenzo returned to the surface, he reviewed the CFR and any PIBs, PILs or PPLs 

applicable to the standard, including P. Exs. 3 and 5. Tr. 69-70; P. Ex. 2, p. 12. P. Ex. 3 is 

Program Policy Letter No. PO8-V-01, effective March 18, 2008 through March 31, 2010. That 

PPL had expired at the time the instant Order was written on August 17, 2010. P. Ex. 4 is 

Program Policy Letter No. P11-V-01, effective February 8, 2011 through March 31, 2013, which 

post-dated the Order and clarified PPL PO8-V-01 in a manner not material here. 

PPL PO8-V-01, MSHA’s interpretation of the cited regulation (Tr. 76), provides in 

relevant part, as follows: 

Purpose 

This Program Policy Letter covers the MSHA policy concerning the 

requirements of Section 75.1725(c), Title 30 of the Code of Federal 

Regulations (CFR), in order to prevent injuries while machinery repairs 

or maintenance are performed. This policy letter addresses the meaning 

of 30 C.F.R. § 75.1725(c), and identifies a number of methods for 

complying with the standard. 

Policy 

Section 75.1725(c) provides that "[r]epairs or maintenance shall not be 

performed on machinery until the power is off and the machinery is 

blocked against motion, except where machinery motion is necessary to 

make adjustments." 

"Machinery" includes hydraulic jacks or cylinders, belt conveyors, 

longwall conveyors, and other machinery used in coal mines. "Repair" 

means to fix, mend, or restore to good working order. "Maintenance" 

means the labor of keeping machinery in good working order and 

includes clean-up, clearing jammed material or conducting 

examinations on or in close proximity to machinery. 

Methods to comply with this standard to prevent inadvertent or 

unexpected motion include: 

1.	 Opening the circuit breaker for the affected machinery, 

provided no energized parts or conductors are exposed, and 

placing the run selector switch for startup of the machinery in 

the "off" position. . . . 

2.	 Opening the circuit breaker at the power center that supplies 

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power for the affected machinery (30 C.F.R. § 75.900) and 

disengaging the power cable coupler that supplies power to the 

machinery (30 C.F.R. § 75.903). 

3.	 Opening a manual visible disconnect switch, either within the 

circuit or onboard the machinery, (30 C.F.R. § 75.903) and 

securing the switch against re-energization. A control circuit 

start-stop switch does not constitute a manual disconnect. 

4.	 In cases such as steeply inclined belt conveyors and suspended 

loads, when removing the power alone will not ensure against 

unintentional or inadvertent movement, the machinery shall be 

physically blocked, in addition to removing the power by one of 

the three methods described above. Physical blocking may be 

achieved by the use of such devices as bars, chocks, or clamps.8 

Other methods may be appropriate in particular situations to prevent 

unintentional or inadvertent movement. What method(s) is appropriate 

depends upon the circumstances and type of machinery. The critical 

determination is whether the method(s) used would effectively prevent 

motion. . . . 

In addition, it is important to emphasize that restoring power 

prematurely while repairs or maintenance are ongoing places a miner 

performing that work in harm's way. Operators must prevent inattentive 

restarting and assure that repairs or maintenance have ceased before 

power is restored to the machinery. Preventive measures operators can 

take include locking and tagging out, clearance checks, or visible or 

audible alarms with built-in time delays before restart to warn the 

miner(s) performing the work so power will not be restored without the 

miner's knowledge. 

See P. Ex. 3, pp. 1-2. 

DiLorenzo conceded that the standard does not require lock out and tag out and there were 

other methods to comply. Tr. 98, 111. On the other hand, DiLorenzo testified that the belt was 

electrically powered equipment because it receives power from two electric drive motors at the 

power center, which turns gears and pulleys to move the conveyor belt. However, he did not 

write a violation under 30 C.F.R. 75.511 because mechanical work was being performed on the 

belt, not electrical work on the belt drive motors. Tr. 120-21. In response to another leading 

question on direct, DiLorenzo testified that Respondent was working on a belt frame that 

8

 DiLorenzo testified on cross that both paragraphs nos. 3 and 4 were inapplicable here 

because the belt drive was not equipped with a manual, visible, disconnect switch (paragraph 3) 

and the record fails to establish that the belt being repaired was a steeply inclined belt conveyor 

(paragraph no. 4). Tr. 83. 

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contained a belt that actually could be moved by drive motors. Tr. 122. He further testified that 

if someone turned the power switch at the belt master to the “on” position, that would cause the 

motor on the closed circuit to run. Tr. 123. 

After reviewing his references, DiLorenzo wrote the instant Order and gave it to Dowell 

and Respondent’s operations manager, Brad Rigsby, while explaining why he had written the 

Order. Tr. 7-71; P. Ex. 2, p. 12. Di Lorenzo conceded that he did not know or inquire about 

what Black Panther’s training was concerning the restarting of belts that had stopped. Tr. 99, 

100. DiLorenzo testified that even if he knew that Black Panther miners were trained not to 

restart a belt until they knew why it was stopped, he still would have written the unwarrantable 

failure order. In his view, Vennard, York, and Simmons just happened to be close to the belt 

master, but there could be other situations where work was performed farther away from the belt 

master where somebody could walk over and turn the untagged belt master switches on, despite 

training not to do so in situations when they did not know why the belt was down. DiLorenzo 

explained that not everyone does what they are trained to do. Tr. 100-01. 

DiLorenzo testified that he designated the violation as S&S because an injury was 

reasonably likely to occur. DiLorenzo arrived at this conclusion based on the fact that Vennard’s 

arm was inside the frame between the belt structure and the belt when power was not turned off, 

and nothing prevented the 2 Main South belt from being turned on, such as by a miner turning the 

switch at the belt master from “off” to “manual” or to “auto” (automatic) at the belt master. Tr. 

60-61, 72. 

In designating the violation as an unwarrantable failure, DiLorenzo at first described 

Vennard’s conduct as intentional and “extensive” because he was the maintenance chief and an 

agent of the operator, who had performed maintenance on equipment without the power being 

shut off and in front of subordinates.9 DiLorenzo also considered the fact that Vennard had 

previously given DiLorenzo the impression that he knew or should have known the regulations, 

including the fact that one could not perform maintenance on equipment without the power being 

off. Tr. 61, 64-65, 108-09. In this regard, DiLorenzo testified that around June or July of 2010, 

he sat in on a safety talk that Vennard gave to third-shift personnel about turning power off and 

locking and tagging out machinery or equipment during maintenance or repair work. DiLorenzo 

described this talk as one of the best references to lock out/tag out that he had ever heard. Tr. 62­

63, 104.10 DiLorenzo testified that during the talk, he recalled Vennard describing “power off” 

as being removed from the power source and locked out, although he did not recall Vennard 

speaking about belts, just equipment generally. Tr. 63, 104. DiLorenzo was not aware of any 

prior violations of 30 C.F.R. 75.1725(c) at this mine, nor was he aware of any notification by 

9

 On cross, however, DiLorenzo testified that he did not believe that Vennard was 

intentionally violating the standard. Tr. 111. 

10 DiLorenzo conceded that he left the safety chat with the impression that Vennard knew 

his stuff about locking and tagging out, and about teaching his employees the proper way to do 

so in order to prevent unintentional or inadvertent movement, when necessary. Tr. 104. 

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MSHA that Respondent needed to make greater efforts to comply with the standard. Tr. 66-67, 

109-10. 

On cross examination, DiLorenzo testified that in his opinion, paragraph no. 2 of the 

expired PPL was not complied with because only one of two circuit breakers was open and it was 

his understanding that if one of the two drive motors was engaged, the belt could still move. Tr. 

77, 102.11 DiLorenzo testified that when leaving for the surface, he observed the Respondent 

attempt to restart the 2 Main South belt after the repairs were made without closing the circuit 

breaker that was already open, and the “belt did attempt to start and move, shut down.” Tr. 77­

78, 102. DiLorenzo did not explain what attempt to start or move meant. I give no weight to 

this testimony as it was little more than assumption given DiLorenzo’s previous testimony that he 

did not see the belt or how the belt was restarted when he left the power center, and he did not 

inquire as to how the belt master or power center worked. Tr. 73, 116-17. In this regard, there is 

no evidence that DiLorenzo ever asked anyone from Respondent how the power center or belt 

master or any switches or drive motors at those locations actually operated. In fact, DiLorenzo 

conceded that he never investigated how the belt master worked, but agreed that if the belt master 

switch was off and the e-stop was engaged, the e-stop would have to be disengaged and the 

master switch turned on before the belt could start moving. Tr. 101-02. Thereafter, he testified 

that engaging the e-stop on the belt master opens the circuit and guards against movement, but 

does not assure that movement cannot be resumed. Tr. 105. DiLorenzo never tested his theory 

that unless the power cables were unplugged, the belt could start up because the cables were still 

energized. 

With regard to paragraph no. 1 of the expired PPL, DiLorenzo testified that such method 

was not complied with because the affected machinery was the 2 Main South belt, which had two 

different motors, but only one of those motors had the circuit breaker open. DiLorenzo disputed 

Respondent’s position that both motors needed to be engaged for the belt to move. Tr. 84. As 

noted above, DiLorenzo testified that Respondent attempted to start the 2 Main South belt with 

only one of the circuit breakers closed while he was present and the belt did move, “attempted to 

start,”12 but did not have enough power or torque to turn the belt with only one drive motor 

running. I have declined to credit this testimony. I note that DiLorenzo did not see who 

attempted to start the belt from the belt master with only one circuit breaker open at the power 

source while he purportedly stood at the power center with Dowell where the catheads were 

11 The option in paragraph 2 requires “[o]pening the circuit breaker at the power center 

that supplies power for the affected machinery (30 C.F.R. § 75.900) and disengaging the power 

cable coupler that supplies power to the machinery (30 C.F.R. § 75.903) (underscore added). 

DiLorenzo did not address the second part of the conjunctive guideline, but there is no dispute 

that the power cable couplers were not disengaged. 

12 It is not clear that DiLorenzo could see or was looking at the belt when standing at the 

power center. See R. Ex. 8. He certainly could not see the belt master. Tr. 114. On 

questioning from the Court, he conceded that he assumed that somebody was attempting to start 

the belt at the belt master. Tr. 116-17. 

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engaged. Tr. 85, 112 . DiLorenzo testified, without detail as to personal observation, that the 

second time Black Panther attempted to start the belt, they closed both circuits to drive motor 1 

and 2 and the belt ran normally. Tr. 113-14. In short, I find DiLorenzo’s testimony too vague 

and imprecise to establish that belt actually moved when Respondent “attempted” to restart it as 

DiLorenzo was headed for the surface. On redirect, DiLorenzo answered affirmatively in 

response to the following leading question from counsel for the Secretary: “My question was 

basically getting to the point that while you were at the power center, one of the circuits to belt 

number 2, belt drive motor number 2, was still open, and the circuit for belt drive number 1 was 

closed when you were at the power center and you saw the belt move?” Tr. 115. In addition, 

DiLorenzo testified that to the best of his recollection, he believed that Vennard closed the circuit 

at the power center by resetting the circuit breaker on that drive motor (Tr. 115), but York 

contradicted DiLorenzo. 179-180. I credit York, who credibly testified on questioning from the 

Court that once he was cleared by Vennard to start the belt, he went to the power center and 

released the e-stop for the no. 2 drive motor and then went back to the belt master, released the estop, turned the power on, and started the belt. See Tr. 179-80. 

I also note that DiLorenzo never went to the belt master and did not know whether the belt 

master was in the “on” or “off” position or whether the e-stop was engaged, which would open 

the circuit for the belt master and guard against belt movement. DiLorenzo insisted that someone 

could reset the e-stop and turn the belt back on. Tr. 86-88, 105. He conceded, however, that the 

belt master controls whether the belt moves or not, and if the e-stop is on and the belt master 

control switch is off, the belt will not move, unless someone turns on the switch. Tr. 88, 90. 

2. Respondent’s Witnesses 

Respondent’s witnesses conveyed a slightly different version of events surrounding the 

inspection. John Vennard has been Respondent’s maintenance chief since June 2006 after 

working in several maintenance positions since 2001, including a two-year stint as maintenance 

foreman. Tr. 133-34. Vennard maintains all electrical and mechanical aspects of underground 

coal mine equipment. Three shift foreman, including York, and 35 electricians, report to 

Vennard. Vennard teaches an 8-hour refresher training course for all mechanics, holds an 

electrical card, and performs on-the-job training, whenever necessary. Tr. 135. 

Vennard testified that on August 17, 2010, he was leaving a continuous miner unit that 

was performing room and pillar mining when a belt examiner flagged him down because a belt 

was spilling coal. Tr. 137. Vennard examined the spillage area, walked to the belt master, 

turned the power switch from “auto” to “off”, engaged the e-stop button, and then went to the 

power center and hit the e-stop for one of the drive motors, but did not remember which one. Tr. 

138-39, 140.13 On his way back to the spillage area, Vennard encountered section foreman York 

13 On cross, based on his experience reading MSHA PPLs, Vennard was asked for his 

understanding of how MSHA defines power off. He opined that power off meant either the 

circuit breaker was open or the power to that circuit was open. He further opined that if you are 

(continued...) 

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and unit mechanic Simmons. Vennard instructed York to go to the belt master until Vennard 

flagged him to turn the belt back on. Tr. 138-39, 143.14 

After taking said precautions, Vennard then went to the spillage area to put the pin back in 

the belt structure. Vennard could not perform the task alone because the belt was loaded with 

coal and Vennard could not pick the structure up himself and replace the pin. Tr. 143. So 

Simmons went to the man-trip to retrieve a come-along (ratchet hoist). Vennard and Simmons 

then put the come-along on the belt structure, pulled the structure back together, and put the pin in 

it. There was no electrical work involved and Vennard testified that it was not possible to come 

in contact with the belt during the task, which was completed about 10-15 minutes after Vennard 

left the power center.15 

Vennard testified that York did not assist with the repair task and never left the belt 

master. Tr. 145. Dowell testified that he never saw York leave the belt master where they 

conversed. Tr. 201-02. York confirmed that Vennard explained to him that he had shut the belt 

down to re-pin the belt structure, that Vennard instructed York to stay at the belt until Vennard 

completed his work so no one could try to turn the belt on, that the whole job lasted about 5-10 

minutes, and that York never left the belt master until he was cleared to start the belt. Tr. 178, 

181-82, 188.16 

13(...continued) 

required to have a visual disconnect, one can remove the catheads and put a lock and tag on 

them, but power off is somewhat of a gray area. Tr. 164-65. 

14 York corroborated Vennard’s testimony that Vennard instructed York to post at the 

belt master until Vennard completed his work on the belt so the belt could be restarted. Tr. 177. 

York could see Vennard from the belt master, but not from the power center. Tr. 184. York 

testified that he has been posted at the belt master on other occasions, such as setting belt drives 

on new installations, and from that vantage point he has been able to observe the work being 

performed on various occasions. Tr. 185. 

15 Vennard testified that if he had been performing electrical work on the cables or at the 

power center, he would have used a physical log out and tag out mechanism. Tr. 157; cf. 163. 

Vennard further testified that he trained his shop that if the miners had any question in their mind 

as to whether lock out tag out applied or whether a piece of machinery could be turned on and 

could move or experience a power surge, then they should lock out and tag out and remove the 

cables. Tr. 169. 

16 With regard to training, Vennard testified that every belt drive has a mine phone and 

before starting a belt back up, a maintenance mechanic or foreman must call and find out why 

the belt is stopped. Tr. 149. Safety Director Dowell corroborated this testimony. Tr. 205. 

Typically, the miner who shuts the belt down is the miner who gives the order to start the belt 

back up. Tr. 151. 

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After completing the repair, Vennard proceeded down the belt line toward the belt master 

and told York to start the belt master, and then he turned right at crosscut one (towards the power 

center) and saw Inspector DiLorenzo with Dowell in the entry at the power center. Tr. 146-49, 

161-62.17 Vennard did not instruct DiLorenzo or Dowell to disengage the e-stop at the power 

center and does not recall when the belt started back up or where he was when the belt started 

back up, although he testified that he would not have left the area if the belt did not start back up. 

Tr. 162-63. Vennard could not recall who released the e-stop at the power center, which was 

necessary to start the belt back up. Tr. 161. On redirect, Vennard again could not recall whether 

he disengaged the e-stop at the power center. Tr. 170 On further questioning from the Court, he 

could not recall any details about the belt being started back up. Tr. 172. 

York testified that once he was cleared by Vennard to start the belt, he went to the power 

center and released the e-stop for the no. 2 drive motor and then went back to the belt master, 

released the e-stop, turned the power on, and started the belt. Tr. 179-80. York did not have any 

conversations with inspector DiLorenzo and does not recall seeing him, although York spoke with 

Dowell to ask what was going at some point when DiLorenzo was not with Dowell. Tr. 180, 188. 

Vennard testified that the belts shuts off if the power is turned off or the e-stop button is 

engaged, and with either action, the belt does not move. Tr. 140. Vennard further testified that 

he was familiar with 30 C.F.R. 75.1725(c) and believed that his actions complied with the 

standard by turning the power off and blocking the belt from motion. Moreover, there were no 

moving parts and Vennard did not come in contact with the belt or enter any pinch point area. Tr. 

151-52. 

In response to questioning from the Court, Vennard testified that it was not necessary to 

engage both e-stops at the power center because they feed through a series circuit and pushing 

one e-stop will shut down the circuit, which is monitored at the belt master and prevents the belt 

from moving. Tr. 142, 155.18 Vennard conceded that the power system was designed to run on 

one motor, and in such case, the e-stop for that motor was controlling, but when both motors were 

being used, as in this case, one e-stop controls both motors. Tr. 155. When asked on cross why 

he stationed York at the belt master if engagement of one e-stop at the power center would ensure 

that the belt would not move, Vennard testified, “I think I positioned him there as much as not to 

turn it on as when I flagged him to turn it on. So we could get the belt back up and running.” Tr. 

160. “He was positioned there as much as not to let the belt start, as to get the belt started as fast 

17 Initially, on direct,Vennard did not remember where he went after telling York to 

restart the belt. Tr. 147. 

18 Vennard did not explain this to inspector DiLorenzo and DiLorenzo did not ask. In 

fact, Vennard testified, contrary to DiLorenzo’s suggestion otherwise (Tr. 91-92), that 

DiLorenzo never spoke to Vennard while underground, and Vennard did not see DiLorenzo until 

DiLorenzo was at the power center when Respondent began the process of starting the belt back 

up. Tr. 142. I credit this testimony of Vennard over the uncertain testimony of DiLorenzo cited 

above. 

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as we could.” Tr. 165-66. Thereafter on cross, Vennard testified that he did not need to position 

York anywhere, but it was a hectic, moment and he was in a hurry to get the belt back up and 

running. Tr. 166, 169-170.19 On further aggressive cross examination concerning whether he 

was in a hurry and positioned someone there to protect him, but did not follow the standard, 

Vennard held tough and testified that he complied with the standard, which he acknowledged on 

redirect was designed to prevent motion or movement of equipment (Tr. 170), by turning the 

power off at the power center and removing power from the belt. Tr. 166-67. 

On further questioning from the Court, Vennard testified that the belt was blocked against 

motion during his repairs because the power was off and the belt could not move. Tr. 172. He 

testified that if the power had been on, the belt still would have been running. Tr. 173. He further 

acknowledged a difference between “power off” and “blocking against motion” and volunteered 

that one could actually put a belt block or tie on a belt to keep it from rolling, but such precaution 

was unnecessary in the circumstances of this case based on the type of machinery since the belt 

was loaded and was located on a flat surface without incline, and was not going to move with 

power off. Tr. 171-72, 174. The Secretary offered no probative evidence or persuasive argument 

to the contrary. 

Vennard also testified that it was not necessary to decouple the power cables for the two 

drive motors at the power source because there were three open circuits, the power was off, and 

the belt could not start. Tr. 157. Vennard testified and Dowell confirmed that in order for the 

belt to start moving again, one would have to release the e-stop at the power center, release the estop at the belt master, and then turn the switch back to the “on” position at the belt master. Tr. 

152, 208. He further testified that all three of these things needed to happen for the belt to move 

in any fashion or start back up. In fact, Vennard testified that he had tested this before and 

confirmed that such was the case. Tr. 153. Dowell also testified that in the past he had tried to 

start the belt when the e-stop to one motor at the power center was engaged and the belt would 

not move or even attempt to start up. Tr. 207. On cross, Dowell further opined that Vennard 

went above and beyond what 30 C.F.R. 75.1725(c) required by opening the circuits at the power 

center and belt master, turning the power off at the belt master, and stationing York at the belt 

master. Tr. 208. 

On questioning from the Court, Dowell opined that Vennard complied with the first 

paragraph of PPL PO8-V-01 concerning methods to comply with the standard to prevent 

inadvertent or unexpected motion, by opening three different circuits. Tr. 209. Dowell further 

opined that Vennard also complied with the second paragraph of PPL PO8-V-01 because when 

he hit the e-stop at the power center, he essentially disengaged the power cable couplers that 

supplied power to the drive motors for the belt because they could not function after the e-stop 

was engaged. Tr. 211. 

19 York candidly conceded on cross that Respondent was in a hurry to get the belt back up 

and running to increase production, but testified on redirect that hurrying does not equate to 

sidestepping or short-cutting safety requirements. Tr. 188-89. 

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York also confirmed on cross that Respondent took three steps to ensure that power was 

off for the belt line, i.e. engaging the e-stop at the power center and the e-stop and power off 

switch at the belt master. Tr. 183. On cross, York also acknowledged that the belt master 

controls the starter on the motors, but if the power center circuit is open, which it was, one cannot 

start the motors. Tr. 182-83. 

York further testified that 30 C.F.R. 1725(c) requires equipment to be powered off and 

blocked from motion, and Respondent’s practice under Vennard’s leadership was to turn the 

power switch off and trip the circuit at the power center. Tr. 186. On questioning from the 

Court, York opined that “power off” meant turning the key on the belt master to “off “(switch off 

at the belt master) to separate the circuit between the belt master and the starter box at the power 

center for the motors. York further noted that Vennard took the initiative to engage the e-stop on 

the belt master as well as the e-stop on one of the two motors that were tied together in a series at 

the power center. Tr. 189-90. York also opined that “blocked against motion” typically 

concerned maintenance on mobile equipment or rubber-tired vehicles that have been parked or 

left idle. He confirmed that the belt on which Vennard was performing repairs could not move if 

the power was off and the circuit was open at the power center, and that even if the belt master 

was turned back on, the belt would not move with the e-stops engaged. Tr. 190-91. 

Respondent’s final witness was Matt Dowell, Respondent’s representative throughout the 

hearing. As noted, Dowell drove the man-trip from the active working section to the end of the 

belt flight line, while DiLorenzo walked the belt line. Tr. 44. Dowell testified that DiLorenzo 

asked Dowell to pick him up at the end of the belt flight. Tr. 194. Dowell apparently arrived 

first (Tr. 200) and parked in the secondary escapeway at cross cut 1 near the power center. 

Dowell then walked over to the 2 main south belt line, which was down, and then out-by to the 

belt master, where he spoke to York. York explained to Dowell that guys were working in-by 

the belt line, where lights were visible, and they were fixing a problem with the belt. Tr. 194-95, 

197, 200. 

Dowell then heard DiLorenzo holler for him from around the corner at the power center 

about 90 feet away. When Dowell arrived back at the power center, DiLorenzo asked Dowell 

how come the belt was not locked and tagged out. Tr. 195, 200.20 Dowell testified that he did 

not respond to DiLorenzo’s inquiry, but noticed that the motor was engaged for one drive. Then 

DiLorenzo headed back over through cross cut 1 toward the belt area where Vennard and 

Simmons were completing their work. Tr. 195-97; see also R. Ex. 8. 

Dowell testified that he saw York again when DiLorenzo was questioning Dowell about 

why the catheads were not locked and tagged out. Tr. 202. I infer this is when York was headed 

toward the power center to open the circuit after Vennard flagged him following completion of 

20 As noted above, it is undisputed that the cited standard does not require log out and tag 

out. 

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the repair work. Dowell testified that DiLorenzo made some notes and then they proceeded 

outside. Tr. 202.21 

Dowell further testified that in the man trip on the way out, DiLorenzo was reading 

through his references and indicated that he had to check some sources once on the surface. Tr. 

202. Thereafter, DiLorenzo returned to Dowell’s office and indicated that he was issuing a 

104(d)(1) Order based on the PPL. Tr. 202. Dowell testified that operations manager Rigsby 

was present, but Rigsby did not testify. Tr. 203. Dowell testified that he questioned DiLorenzo 

about the Order, noting that the power was off. According to Dowell, DiLorenzo said that power 

off meant “locked out and tagged out in this instance.” I credit this testimony from Dowell. 

DiLorenzo’s contemporaneous notes confirm that he was viewing the alleged violation as a 

contravention of lock out and tag out requirements (P. Ex. 2, pp. 10 and 11), although DiLorenzo 

abandoned this theory at trial. Tr. 98, 111. 

3. The “Directed Verdict” 

At the close of Respondent’s case, I granted Respondent’s motion to dismiss (styled by 

Respondent as a motion for a directed verdict, see Tr. 124 and 212) and vacated the citation. I 

found, based on the credible testimony from each of Respondent’s witnesses and the inability of 

inspector DiLorenzo to testify from firsthand knowledge as to how the power system worked, that 

the requirements of 30 CFR 75.1725(c) were complied with because the power was turned off and 

the belt effectively was blocked against motion under the circumstances. Tr. 212-13. I reaffirm 

that decision in this written opinion. 

As Judge Gill noted when granting a contestant’s motion to dismiss at the close of the 

Secretary’s case in a slightly different context in Clintwood Elkhorn Mining Co., 32 FMSHRC 

1880, 1881 (Dec. 2010)(ALJ Gill), Fed. R. Civ. P. 52(c) allows the dismissal of a matter at the 

judge’s discretion when a party fails to prove a key element of their case. Fed. R. Civ. P. 52(c) 

provides: 

If a party has been fully heard on an issue during a nonjury trial and the 

court finds against the party on that issue, the court may enter judgment 

against the party on a claim or defense that, under the controlling law, 

can be maintained or defeated only with a favorable finding on that 

issue. The court may, however, decline to render any judgment until the 

close of the evidence. A judgment on partial findings must be supported 

by findings of fact and conclusions of law as required by Rule 52(a).

 Thus, during a non-jury trial, Rule 52(c) authorizes the court to enter judgment at any 

time that it is appropriate to make a dispositive finding of fact on the evidence. In Clifford Meek 

21 Dowell does not recall seeing Blair or Cox at the power center. Tr. 201. Further, 

Dowell never saw DiLorenzo speak to Vennard, York or Simmons. Tr. 202. 

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v. Essroc Corporation, the Commission found that a ruling on a motion for involuntary dismissal 

under Rule 52(c) was at the judge’s discretion and found “no error by the judge and affirm[ed] his 

procedural determinations.” Clifford Meek v. Essroc Corporation, 15 FMSHRC 606, 614 (April 

1993). In Sec’y of Labor v. Martin County Coal Corporation and GEO /Environmental, the 

Commission found that a judgment on a partial finding was appropriate because the judge had 

heard the Secretary’s entire case. Sec’y of Labor v. Martin County Coal Corporation and 

GEO/Environmental, 28 FMSHRC 247 (May 2006). In addition, the Commission found in 

Martin County Coal that the judge does not need to address every point of evidence. Id. The 

judge must only include findings and conclusions on “material issues of fact [and] law.” Id., 

citing Fed. R. Civ. P. 52(c). 

 In this case, I heard all the evidence from both parties before finding at the close of the 

Respondent’s case that the Secretary failed to establish a violation of the cited standard by a 

preponderance of the evidence. As discussed below, the Secretary failed to prove the key factual 

elements for her case by a preponderance of the evidence. Specifically, the Secretary failed to 

establish that a repair was made on the belt structure when the power was on or when the belt was 

not blocked against motion. All credible evidence is to the contrary. 

I credit the testimony of Respondent’s witnesses that Vennard examined the spillage area, 

walked to the belt master, turned the power switch from “auto” to “off”, engaged the e-stop 

button, and then went to the power center and hit the e-stop for one of the drive motors. 

Although Vennard did not decouple the power cables or catheads at the power center, such 

method of compliance was unnecessary per the PPL since Vennard had already opened all circuit 

breakers for the affected machinery and turned the power switch off. In addition, Vennard 

instructed foreman York to go to the belt master until Vennard flagged him to turn the belt back 

on. Tr. 138-39, 143. I credit the testimony of Respondent’s witnesses that York never left the 

belt master until he disengaged the e-stop at the power center after being flagged by Vennard to 

restart the belt once the minor repair was completed. The Secretary made no specific argument as 

to how the belt was not blocked against motion and her sole witness conceded that a log out and 

tag out procedure was not required. Further, I credit Vennard’s testimony that the belt was 

effectively blocked against motion because the belt was loaded on a flat surface without incline 

and could not move with the circuits open and the power off. 

In short, I find that Respondent complied with 30 C.F.R. § 75.1725(c). Cf. Island Creek 

Coal Company, 22 FMSHRC 822 (2000). Accordingly, Order No. 8426631 is vacated. 

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ORDER 

For the reasons set forth in note 1 above, the joint motion to approve partial settlement in 

Docket No. Lake 2011-34 is APPROVED under the criteria set forth in Section 110(i) of the Act.

 Accordingly, Order No. 8429032 alleging a section 104(d)(1) unwarrantable failure to comply 

with 30 C.F.R. 75.361(a) is modified to a section 104(a) citation, with moderate negligence and a 

reduced penalty of $460, and Order No. 8429035 is modified to a section 104(d)(1) citation with a 

statutory minimum penalty of $2,000. 

Order No. 8426631 is VACATED. 

If it has not already done so, within 40 days of the date of this decision, Black Panther 

Mining, LLC is ORDERED to pay a total civil penalty of $2460 for the alleged violations that 

have been settled. Upon payment of that penalty, this proceeding is DISMISSED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (E-Mail and Certified Mail) 

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn 

Street, Room 844, Chicago, Illinois 60604 

Drew Miroff, Esq., Ice Miller, 1 American Square, Suite 2900, Indianapolis, Indiana 46282 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

January 31, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. WEVA 2008-1623 

: 

: Petitioner, 

: A.C. No. 46-07908-158162 

v. : 

:

 :

 :

 : 

PINE RIDGE COAL COMPANY, LLC, : 

Respondent. : Mine: Big Mountain No. 16 

DECISION 

Appearances: J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor, 

Arlington, Virginia, for Petitioner;

 Melissa M. Robinson, Esq., Jackson Kelly, PLLC, Charleston, West 

Virginia, for Respondent. 

Before: Judge Paez 

This case is before me upon the Petition for Assessment of Civil Penalty 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 (2010) (“Mine Act”).1

 Pine Ridge Coal Company, LLC (“Pine Ridge”), 

contests two orders issued under section 104(d)(2) of the Mine Act arising from an inspection of 

its Big Mountain No. 16 mine.2

 The parties have stipulated to my jurisdiction over this matter, 

1

 In this decision, the following abbreviations are used: “Tr.” refers to the hearing 

transcript; “Ex. J-#” refers to the parties’ joint exhibits; “Ex. G-#” refers to the Secretary’s 

exhibits; “Ex. R-#” refers to the Respondent’s exhibits; “Sec’y Br.” Refers to the Secretary’s 

Post-Hearing Brief; “Resp’t Br.” refers to the Post-Hearing Brief of Pine Ridge Coal Company; 

and “Resp’t Reply” refers to the Post-Hearing Reply Brief of Pine Ridge Coal Company. 

2

 The parties stipulated that Pine Ridge Coal Company owns and operates Big Mountain 

No. 16, an underground coal mine in West Virginia. (Sec’y Br. 2.) The parties also agree that 

(continued...) 

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as well as the Secretary’s jurisdiction over Pine Ridge’s operations at Big Mountain No. 16. 

(Sec’y Br. 2.) 

I. Statement of the Case

 The Secretary filed her petition against Pine Ridge for six alleged violations of her mandatory 

safety standards. Pine Ridge timely filed its Answer, and thereafter the case was assigned to me. 

I held the hearing in this matter in Charleston, West Virginia. 

 At the hearing, the parties reported that they had resolved four of the six alleged violations in 

this docket.3

 The two remaining violations, Order Nos. 7269756 and 7269757, were issued on 

May 16, 2007, and assert, respectively, that Pine Ridge violated 30 C.F.R. § 75.370(a)(1) (2006), 

by breaching its mine ventilation plan through ineffective ventilation controls in the 023 MMU 

return entry, and 30 C.F.R. § 75.364(b)(2), by failing to conduct an adequate weekly 

examination of the return entry. The Secretary asserts that both orders involve significant and 

substantial (“S&S”) violations arising from Pine Ridge’s unwarrantable failure to comply with 

the cited mandatory safety standards.4 The Secretary proposes a civil penalty of $45,000 for 

each of these violations for a total proposed penalty assessment of $90,000.

 The Secretary presented one witness, Gary L. Frampton, the MSHA inspector who issued the 

orders contested in this case. (Tr. 9–63.) Pine Ridge also presented one witness, Big Mountain 

No. 16 Mine Superintendent Chris Matkins. (Tr. 64–120.) The parties submitted post-hearing 

briefs following receipt of the transcript. 

II. Issues

 The Secretary asserts that the conditions were properly cited as violations and that the S&S and 

unwarrantable determinations are valid. She further submits that in analyzing whether a 

violation of an operator’s ventilation plan is S&S, the Commission should assume the occurrence 

of the event the plan was designed to prevent or lessen in severity. Pine Ridge denies that any 

violations occurred and denies the allegations set forth in the orders. The operator further 

(...continued)
 

the Secretary’s inspector was acting in his official capacity as an authorized representative of the
 

Secretary and that true copies of the orders before me were served on Pine Ridge, as required by
 

the Mine Act. (Id.)
 3

 The Secretary vacated Order Nos. 7269790 and 7269791, and the parties settled Order 

Nos. 7269730 and 7262200. (Tr. 5.) I subsequently issued a Decision Approving Partial 

Settlement on November 19, 2010, resolving these four orders. 

4

 The S&S terminology is taken from section 104(d)(1) of the Mine 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)(1). The 

unwarrantable failure terminology also derives from section 104(d)(1) of the Mine Act, 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.” Id. 

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contends that if the orders are not vacated then they should be modified to non-S&S section 

104(a) citations, inasmuch as the facts do not support the S&S and unwarrantable failure 

designations. 

 Accordingly, the following issues are before me: (1) whether the cited conditions were 

violations of the Secretary’s mandatory health and safety standards; (2) whether the Secretary’s 

assertions regarding the gravity and S&S determination are supported by the record; (3) whether 

the Secretary’s determination that the violations constitute unwarrantable failure on the part of 

Pine Ridge is supported by the record; and (4) whether the proposed civil penalties are 

appropriate. 

For the reasons that follow, Order Nos. 7269756 and 7269757 are hereby AFFIRMED. 

III. Findings of Fact 

A. Big Mountain No. 16’s Ventilation System

 Big Mountain No. 16 uses a “blowing” ventilation system to circulate fresh air through its 

mine. (Tr. 12.) A fan at the mine’s surface generates pressure by pushing air from outside into 

the mine, which circulates through the mine’s interior via main tunnels known as “entries” and 

smaller tunnels that perpendicularly intersect them, which are known as “crosscuts.” (Id.) Fresh 

air from the surface, known as “intake air,” follows a carefully prescribed route, and various 

specialized structures, such as regulators, seals, stoppings, and overcasts, ensure that the air 

follows its designated path. (Ex. R-1.) These structures guide the air by relying on the 

fundamental fact that air will move from areas of higher pressure to areas with relatively lower 

pressure. (Tr. 92, 106–07.) As fresh air passes through the mine it collects methane gas, coal 

dust, and rock dust emitted by the mine itself, as well as in areas where miners are removing 

coal. (Tr. 12.) The contaminated air, known as “return air,” is then directed out of the mine via a 

separate route. (Id.) At the time the orders in this case were issued, Big Mountain No. 16’s 

specific blowing ventilation system used two fans on the surface to circulate fresh air through the 

mine. One fan blew fresh air along the belt corridor system and ventilated seals on that side of 

the mine. (Id.) The other fan, located at the main portal, ventilated the rest of the mine, 

including the areas where miners worked. (Id.) 

 An important element of Big Mountain No. 16’s ventilation system is the overcast, which 

ensures proper ventilation at the intersection of entries carrying two different airflows. When 

properly constructed, an overcast prevents air flowing through one entry from mixing with air 

flowing through the other entry where they intersect. In the 023 MMU return entry at Big 

Mountain No. 16, management had constructed three new overcasts. The overcasts were built by 

erecting two cinder block and mortar walls spanning the width of the intersection and up to a 

height of approximately five feet, or about half the height of the mine entry. (Tr. 17.) Then, 

pieces of metal decking, forming what is known as a “Kennedy panel,” were laid across the top 

of the walls. (Tr. 17, 71–72.) The pieces of metal decking were approximately twenty-feet long, 

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two-feet wide, and six-inches thick. (Tr. 17, 72.) To increase their load-bearing capacity, each 

piece is hollow with three- to four-inch solid caps at its ends, as well as a solid lip running 

around its edges, such that when the panel is laid across the walls, it resembles an upside-down 

canoe. (Tr. 22, 76, 79; Ex. J-5, at 126.) Finally, two other cinder block walls were built on top 

of them, spanning the width of the entry running perpendicular to the entry blocked by the 

bottom two walls. (Tr. 70.) The overcasts were finished with a coat of plaster to seal the air and 

ensure the two air courses remained separate. (Tr. 73.) Walkways were also built over the lower 

walls covered by the Kennedy panel to allow miners to cross over the top of the overcast. (Tr. 

18, 70–71.) In addition to these walkways, each overcast featured a doorway built into its lower 

wall known as a “man door” to allow miners access to the other entry spanned by the overcast. 

(Tr. 70–71.) 

 Once finished, the overcast’s lower walls direct air flowing through the entry over the Kennedy 

panel and through the intersection. The walls on top of the Kennedy panel prevent this air from 

commingling with air passing perpendicularly through the other entry. In turn, the overcast’s 

upper walls channel the air passing through the intersection by directing it underneath the 

Kennedy panel. The Kennedy panel and the lower walls prevent this air from mixing with the 

air flowing above the Kennedy panel. 

 Maintaining a proper ventilation system is vital to ensuring a safe environment in the mine. 

Company officials must comply with MSHA regulations regarding proper mine examination to 

ensure that ventilation problems do not exist. For example, if a fire occurs in one section of the 

mine and air from the section’s return entry is leaking through the overcast into the mine’s entry 

designated as an escapeway, then miners could be forced to escape through smoke-filled 

airways. (Tr. 32.) Moreover, return air contaminated with rock and coal dust from the working 

section could leak through a faulty overcast into the intake entry, contributing to the risk of 

respiratory diseases such as black lung. (Id.) 

 On May 16, 2007, Pine Ridge was operating two mechanized mining units (MMU’s), the 022 

MMU and the 023 MMU, in different parts of the mine. (Tr. 33.) This case concerns the 

ventilation controls in these two MMU’s, particularly the return air course from the 023 MMU. 

The fresh air ventilating these sections flowed nearly two-and-a-half miles into the mine from 

the mine fan blowing at the surface, until reaching a pair of regulators. (Tr. 29.) The regulators 

split this stream of intake air, turning part of it toward the 023 MMU, and directed the remaining 

fresh air deeper into the mine toward the 022 MMU. (Tr. 15–16; Ex. R-1.) 

After fresh air circulated through the 023 MMU, it exited the section and flowed over a series 

of three overcasts before reaching the main return entry and exiting the mine. (Ex. R-1.) The 

first overcast was designed to direct the return air over the mine’s main intake entry ventilating 

the 022 MMU, as well as the 022 MMU’s primary escapeway. (Tr. 15–16, 27–28; (Ex. R-1.) 

From there, the return air flowed past two breaks at Survey Spad Nos. 11464 and 11449, where 

the operator had constructed stoppings to separate the return air course from two entries 

intersecting the return. (Tr. 21; Ex. R-1.) From these two survey spads, the return air course 

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continued over a second overcast spanning the coal conveyor belt entry at survey spad no. 

11446. (Tr. 22–23; Ex. R-1.) Finally, the return air passed over a third overcast, which crossed 

a roadway that all miners working in the mine’s active areas used in their daily travels. (Tr. 25, 

33; Ex. R-1.) This roadway also served as the secondary escapeway for the 022 MMU. (Id.) 

 At the time these orders were issued on May 16, 2007, the 023 MMU was a new, active 

section of the mine. Construction of the overcasts was completed by approximately April 29, 

2007, in conjunction with the ventilation change that was to circulate fresh air through the 

section. (Tr. 111; Ex. J-1.) The 023 MMU went into production on May 4, 2007. (Tr. 39–40; 

Ex. J-1.) On Monday, May 14, 2007, immediately after returning from a week of leave due to 

the birth of his daughter, Pine Ridge Superintendent Matkins performed a check of the 023 

MMU return entry. (Tr. 95–96.) Matkins determined that an adequate volume of air was 

flowing through the conveyor belt entry and roadway entry. (Tr. 95.) He also determined that 

the only air leakage in these two entries involved fresh air flowing into the 023 MMU return 

entry. (Id.) 

B. Inspection of Big Mountain No. 16 mine

 The two disputed orders in this matter were issued on May 16, 2007, during Frampton’s routine 

inspection of the Big Mountain No. 16 mine as a result of his walk-through of the 023 MMU 

return entry. (Ex. J-1; Ex. J-2.) Frampton’s inspection of the return air course proceeded out of 

the 023 MMU and over the three overcasts spanning three entries: (1) the main intake entry, (2) 

the conveyor belt entry, and (3) the roadway entry, respectively. As Frampton approached the 

first overcast, he noticed that the Kennedy panels created holes, which were obvious to him 

because the panels were not sitting flush on top of the walls. (Tr. 16.) The space between the 

overcast’s lower walls was two to three feet shorter than the length of the metal decking 

composed of the Kennedy panel, thus allowing the hollow portions on the bottom of the decking 

to stretch over the walls and into the return entry. (Tr. 18–19, 22, 60.) Ideally, the Kennedy 

panel would have sat neatly on top of the two lower walls. Instead, they extended about a foot to 

a foot-and-a-half past each lower wall. Unlike an upside-down bowl that would be sealed if left 

on a counter, the Kennedy panels were more like upside-down bowls that extended over the edge 

of a counter, thus creating a gap where air could flow freely. 

 After discovering the holes in the overcast, Frampton conducted a smoke tube test to determine 

which direction the leaking return air was flowing. (Tr. 18–19.) He observed air flowing 

through the holes from the return entry and into the primary intake, towards the 022 MMU 

working section of the mine. (Tr. 20.) Frampton conducted several more smoke tube tests at the 

overcast and reached the same results each time. (Tr. 20–21.) He observed that contaminated 

return air flowing through the return entry was seeping under the Kennedy panel, through the 

hollow spaces in the decking, and into the intake via the approximately six-inch by two-foot 

holes between the decking pieces and the wall. (Tr. 78.) 

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 In conducting the smoke tube tests, Frampton also examined the man door in the overcast. 

(Tr. 21.) The overcast’s man door was located in the lower wall facing the 023 MMU, allowing 

miners access to the intake entry. (Tr. 21; Ex. R-1.) When Frampton opened the door to check 

his smoke tube results, he observed contaminated air from the 023 MMU return entry flowing 

into the intake entry and turning immediately right in the direction of the 022 section. (Id.) 

 Pine Ridge disputes Frampton’s discovery that return air was leaking into the primary intake entry. 

(Resp’t Br. 5; Resp’t Reply 3.) Superintendent Matkins asserted at the hearing that, had that 

been the case, the return airflow out of the 022 MMU would have been reversed from its proper 

direction. (Tr. 85–86.) Because Matkins’s section foreman was required to check the area every 

four hours, Matkins asserted that his foreman would have detected reversal of the return airflow 

out of the 022 MMU. (Tr. 86.) Nevertheless, Matkins did not personally investigate the first 

overcast with Frampton. (Tr. 109–10.) Moreover, Frampton also explained that the regulators 

splitting the intake air between the 022 MMU and the 023 MMU, as well as the mine’s return 

capacity, contributed to the airflow he witnessed at the primary intake. (Tr. 36–37.) I have 

noted that Matkins has a bachelors of science in mine engineering from Virginia Tech and 

approximately sixteen years of experience in the coal mining industry. (Tr. 65–66.) However, I 

find that Frampton’s direct observations of the first overcast, bolstered by his thirty-seven years 

of experience in underground coal mining up to the level of a compliance officer at a large mine 

operator, Massey Energy (Tr. 10–11, 43), establish that air was leaking from the 023 MMU 

return entry into the primary intake entry.

 Frampton continued his inspection by walking further down the return toward the next
 

overcast. As Frampton walked by Survey Spad Nos. 11464 and 11449, he passed the area where
 

two entries crossed the 023 MMU return entry.5 (Ex. R-1.) There, Frampton observed four
 

stoppings, two on his left and two on his right—one pair per entry—that were built to block
 

return air from going into the other entries. (Tr. 21.) Looking at each of stoppings on his left
 

from the return entry, Frampton could see the string of electric lights illuminating a conveyor
 

belt four crosscuts away through holes in the stoppings. (Tr. 21–22; Ex. R-1.) The stoppings
 

should have been airtight, blocking any light from the conveyor belt. (Tr. 37.) Upon closer
 

inspection, Frampton noticed holes of up to eight by six inches in size in the stoppings. (Tr. 22.) 

Frampton also conducted a smoke tube test near the holes in each of the four stoppings. (Id.) He
 

found that air was flowing out of the stoppings on the left toward the surface with the H2
 

conveyor beltline. (Tr. 23.) As for the stoppings on the right, Frampton found that contaminated
 

air was leaking out of them and deeper into the mine near the H2 conveyor beltline and
 

travelway. (Tr. 23; Ex. R-1.) 

 Frampton then approached the second overcast in the return, which crossed one of the mine’s 

conveyor belts, the H2 beltline, at Survey Spad No. 11446. (Tr. 22–23.) This overcast was 

designed to direct contaminated return air over the H2 conveyor beltline. (Tr. 22.) However, 

Frampton again saw that the metal decking of the Kennedy panel extended beyond the overcast’s 

lower walls by approximately eighteen inches on both sides of the overcast. (Id.) Frampton 

5

 Survey spads are underground markers corresponding to particular points in a mine and
 

are identified by number. 

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again found that contaminated air was flowing from the return air entry into the entry containing 

the H2 conveyor belt. (Tr. 22–23.) Frampton also observed that when the man door was 

opened, air from the return flowed into the conveyor entry. (Tr. 23–24.) This finding indicated 

the air pressure was wrong, as fresh air from the beltline should have flowed out of the man door 

and into the 023 MMU return entry, not the other way around. (Id.) 

 Frampton then continued walking through the return and came upon the third and final overcast, 

which crossed over a roadway and secondary escapeway for 022 MMU. (Tr. 25.) Frampton 

noticed the same construction flaw as he had seen in the other two overcasts, namely that the 

Kennedy panel’s metal decking extended well beyond the overcast’s walls. (Tr. 26.) The holes 

in this overcast were obvious to Frampton. (Id.) Frampton again found that contaminated air 

was flowing from the return, through the holes in the overcast, and into the entry containing the 

roadway. (Tr. 25–26.) When Frampton opened the man door at the overcast, which faced the 

stream of return air, he determined found that air was again allowed to flow improperly into the 

roadway entry. (Tr. 25.)

 Frampton determined that the holes in these overcasts stemmed from their construction and 

not from any other factors, such as an impact with mining equipment. (Tr. 40, 60–61.) 

Frampton explained: “The construction of the overcast was not complete as I saw it.” (Tr. 30.) 

The twenty-foot long metal decking of the overcasts’ Kennedy panels extended two to three feet 

beyond the overcasts’ lower walls, which were only seventeen to eighteen feet apart. (Tr. 19, 22, 

25–26, 30–32, 60.) Thus, the decking stretched out approximately eighteen inches on either side 

of the overcasts’ lower walls. (Tr. 31.) As a result, Frampton found “too many [holes] . . . to 

note.” (Ex. J-4, at 80.) Similarly, Frampton concluded that the holes in the stoppings also 

stemmed from their shoddy construction. (Tr. 37, 40.) 

 However, Pine Ridge Superintendent Matkins asserted that the overcasts were plastered in 

an attempt to seal them. (Tr. 73.) Nevertheless, Matkins admitted the holes in these overcasts 

had most likely been present since their construction (Ex. J-5, at 147), which was completed 

around April 29, 2007, in advance of the ventilation change corresponding with the start of 

production on the 023 MMU on May 4, 2007.

 Based on these findings, Frampton issued Order No. 7269756 for an alleged violation of 30 

C.F.R. § 75.370(a)(1) (Tr. 26; Ex. J-1), providing the following verbatim: 

The Approved Mine Ventilation Plan is not being complied with. Return air flow, 

from the West (023-0 MMU), was found leaking into the primary escape way for 

the South section (022-0 MMU), into the H2 energized belt conveyor entry, and 

into the roadway of the H Zone. Energized electrical installations, nonpermissible diesel and battery powered equipment were out by the point of the 

return air flows, entering the belt line and the roadway and the intake entry’s. 

Obvious holes in stopping’s, and overcast were present, in addition to numerous 

places that poorly sealed stopping’s contributed to the hazard. When man doors 

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were opened, the pressures were found to be in reverse of the required air flow 

directions. 

(Ex. J-1.)

 Frampton determined that this violation created the highly likely risk of permanently disabling 

injuries to twenty miners. (Ex. J-1.) Frampton noted that miners in the 022 MMU would be 

exposed to rock and coal dust leaking into the 022 MMU intake entry and travelway entry, as 

well as smoke in primary and secondary escapeways in the event of a fire. (Tr. 44.) 

Accordingly, Frampton designated the alleged violation as S&S. (Id.) Additionally, Frampton 

determined that Pine Ridge had been highly negligent in allowing this allegedly violative 

condition to exist, conduct which in his view amounted to an unwarrantable failure to comply 

with 30 C.F.R. § 75.370(a)(1). (Ex. J-1.) Specifically, Frampton asserted that Pine Ridge had 

allowed the holes in the overcasts and stoppings to persist for twelve days since their 

construction, despite being obligated to conduct a weekly examination of the return, as well as 

daily preshift examinations of the conveyer belt and roadway running beneath the second and 

third overcasts of the 023 MMU return, respectively. (Tr. 40–41, 56–61.) 

 Because the 023 MMU was required to be inspected once a week, Frampton reviewed the 

weekly examination book. (Tr. 40; Ex. J-2.) Frampton did not find notations of any of the holes 

in the overcasts or stoppings. (Id.) Based on these observations, Frampton concluded that Pine 

Ridge violated 30 C.F.R. § 75.364(b)(2) and issued Order No. 7269757, which stated: 

An adequate weekly examination of the one return entry of the Northwest section, 

(023-0 MMU) has not been conducted and recorded in the weekly examination 

record book. When examined, return air was found leaking through holes in 

permanent stopping’s, and large holes in recently completed overcasts. Also, 

when man doors were opened, air flowed into the primary escape way of the 

South Section (022-0 MMU), H2 belt conveyor entry, and the roadway. These 

holes would be obvious to the most casual observer. This 023-0 MMU, started 

producing coal on 5/4/2007. 

(Ex. J-2.)

 Frampton asserted that the alleged violation created a highly likely risk of permanently 

disabling injuries to twenty miners. (Ex. J-2.) Accordingly, Frampton designated the alleged 

violation as S&S for the same reasons as he designated Order No. 7269756 as S&S. (Id.) 

Moreover, based on his perception that the holes in the overcasts were obvious, Frampton 

determined that Pine Ridge was highly negligent in allowing the condition to exist, thus engaged 

in conduct which rose to the level of an unwarrantable failure to comply with the Secretary’s 

mandatory safety standard. (Tr. 45; Ex. J-2.) 

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 After Frampton issued the orders in this case, Pine Ridge worked to fix the holes in its 

ventilation controls. (Tr. 67.) A few hours after the holes had been fixed, Pine Ridge 

Superintendent Matkins went to meet with Frampton. (Tr. 67, 91.) Matkins had heard that the 

miners were unable to correct a difference in air pressure that was causing contaminated return 

air from the 023 MMU to flow improperly through the holes in the overcasts into the other 

entries. (Id.) Matkins met Frampton at the third overcast where it crossed over the roadway. 

(Tr. 67.) Using a smoke tube, Frampton showed Matkins that air from the 023 MMU return 

entry was still leaking through the man doors on the overcasts spanning the conveyor belt and 

roadway entries. (Tr. 67–68, 109.) Matkins, however, did not accompany Frampton to the 

stoppings or the first overcast at the 022 MMU intake entry. (Tr. 109–10.)

 To change the pressure in the return entry and attempt to correct the problem, Matkins 

made a small adjustment to a return regulator located at a punch-out from the mine to the 

surface. (Tr. 89–90, 99.) The adjustment lowered the air pressure in the 023 MMU return. (Tr. 

113.) Matkins went back to Frampton at the third overcast spanning the roadway, where they 

determined that the leakage of air from the return entry to the roadway entry had been corrected. 

(Tr. 90.) As a result, Frampton terminated Order No. 7269756 concerning Pine Ridge’s 

violation of its ventilation plan. (Ex. J-1.) 

IV. Principles of Law 

A. Operator Liability

 Under the Mine Act, operators are strictly liable for violations of the Secretary’s mandatory 

health and safety standards. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008) (citing 

Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F2d 1195 (10th Cir. 1989)). 

The actions of an operator’s weekly examiner may be imputed to the operator for the purposes of 

analyzing its negligence. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194–96 (Feb. 

1991). To determine whether a particular condition violates a broadly worded standard, the 

Commission employs the objective “reasonably prudent person” test, which provides: 

[T]he alleged violative condition is appropriately measured against the standard 

of whether a reasonably prudent person familiar with the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the 

mining industry, would recognize a hazard warranting corrective action within the 

purview of the applicable regulation. 

Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656 (Aug. 2008) (quoting Alabama By-Products 

Corp., 4 FMSHRC 2128, 2129 (Dec. 1982)). 

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B. S&S 

 The Mine Act defines an S&S violation as one “of such nature as could significantly and 

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

30 U.S.C. § 814(d)(1). A violation is S&S “if, based on the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). To establish an S&S violation under National Gypsum, the Secretary 

must prove the four elements of the Mathies test: 

(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); accord Buck Creek Coal v. 

MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); 

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

criteria). An evaluation of the reasonable likelihood of injury should be made assuming 

continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 

1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 

1984)). 

 The third element of Mathies, which requires “a reasonable likelihood that the hazard 

contributed to will result in an injury,” is by far the most difficult element of the Mathies test. 

See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862, 870 (June 1996) (Marks, Comm’r, 

concurring in result) (observing that during the 12-year period immediately following Mathies, 

over 93% of the Commission’s 47 decisions involving an S&S issue concerned the third 

element). In U.S. Steel IV, the Commission held that “the third element of the Mathies test does 

not require the Secretary to prove it was ‘more probable than not’ an injury would result.” 

18 FMSHRC at 865 (citation omitted). 

In Ziegler Coal Co., the Commission considered the Operator’s argument that its violation 

of allowing contaminated return air to pass over non-permissible equipment, that is, equipment 

that could ignite coal dust or methane, was not S&S. 15 FMSHRC 949, 952–54 (June 1993). 

The Commission noted that in a case involving injuries connected to a mine fire, “[t]he 

reasonable likelihood of an ignition is the necessary precondition to the reasonable likelihood of 

an injury.” Id. at 953 (citing U.S. Steel Mining Co. (U.S. Steel II), 6 FMSHRC 1834, 1836 (Aug. 

1984)). The Commission determined that the Judge did not make a finding on the reasonable 

likelihood of an ignition and remanded the case for further analysis of the third element of 

Mathies. Id. at 953–54. 

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 At the same time, the Commission has long held that “[t]he fact that injury [or a condition 

likely to cause injury] has been avoided in the past or in connection with a particular violation 

may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting OzarkMahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC 899, 

906–07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to 

violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 

18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative 

equipment does not preclude S&S finding). 

 The Commission recently reiterated these principles in Cumberland Coal Resources, LP, 

2011 WL 5517385 (FMSHRC Oct. 5, 2011),6 and Musser Engineering, Inc., 32 FMSHRC 1257 

(Oct. 2010). Citing Elk Run Coal and Blue Bayou Sand & Gravel, the Commission emphasized 

that the test under the third prong of Mathies is whether the hazard fostered by the violation is 

reasonably likely to cause injury, not whether the violation itself is reasonably likely to cause 

injury. Cumberland Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC 1280–81. 

C. Unwarrantable Failure

 The unwarrantable failure terminology derives from section 104(d)(1) of the Mine Act and 

refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d). 

In Emery Mining Corp., the Commission determined that an unwarrantable failure is aggravated 

conducted constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987). 

Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester & 

Pittsburgh Coal, 13 FMSHRC at 194; see also Buck Creek Coal, 52 F.3d at 136 (approving the 

Commission’s unwarrantable failure test).

 Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist, 

such as the length of time that the violation has existed, the extent of the violative condition, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

the operator’s efforts in abating the violative condition, whether the violation is obvious or poses 

a high degree of danger, and the operator’s knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 

FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest 

6

 The Commission in Cumberland Coal Resources remanded to the Administrative Law 

Judge for a reassessment of civil penalties, as it vacated the Judge’s conclusions on the issue of 

S&S. 2011 WL 5517385, at *11. Cumberland Coal Resources appealed the Judge’s Decision 

on Remand to the Commission, which denied its Petition for Discretionary Appeal. Cumberland 

Coal Res., LP, Docket No. PENN 2008-189 (FMSHRC Nov. 14, 2011). The Administrative 

Law Judge’s decision is currently on appeal before the United States Court of Appeals for the 

D.C. Circuit. Cumberland Coal Res., LP, Docket No. PENN 2008-189 (FMSHRC Oct. 25, 

2011) (ALJ), appeal docketed, No. 11-1464 (D.C. Cir. Nov. 29, 2011). 

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Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 

(Feb. 1994); Peabody Coal, 14 FMSHRC at 1261; BethEnergy Mines, Inc., 14 FMSHRC 1232, 

1243–44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the 

relevant facts and circumstances of each case must be examined to determine if an actor’s 

conduct is aggravated or whether mitigating circumstances exist. Consolidation Coal Co., 22 

FMSHRC at 353. 

V. Further Findings of Fact, Analysis, and Conclusions of Law 

A. Order No. 7269576 – Ventilation Controls 

1. Violation – § 75.370(a)(1)

 Order No. 7269756 alleges a violation of the Secretary’s mandatory safety standard at 30 C.F.R. 

§ 75.370(a)(1), which provides: 

The operator shall develop and follow a ventilation plan approved by the district 

manager. The plan shall be designed to control methane and respirable dust and 

shall be suitable to the conditions and mining system at the mine.

 Every ventilation control between the 023 MMU return entry’s turn out of the 023 MMU and 

its intersection with the main return entry had significant holes. These ventilation controls were 

designed to prevent any combustible coal dust or methane gas in the return air from mixing with 

intake air ventilating the main intake, conveyor belt, and roadway. Here, Frampton discovered 

that the leaky ventilation controls allowed return air to enter the streams of fresh intake air. The 

ventilation controls thus failed their purpose of controlling the flow of methane or coal dust 

through the mine. 

 Most importantly, Pine Ridge Superintendent Matkins admitted that the holes in Pine Ridge’s 

overcasts and stoppings were improper and needed repair: 

Q:	 You’re not testifying that it was okay to have those holes there, are you? 

A:	 No, if the holes had been discovered through the weekly examination or

 just through construction of the overcast, they would have been repaired. 

Q: But those holes are not in compliance with your ventilation plan? 

A: You’re not supposed to have holes in your stoppings. That’s a bad

 practice... . 

. . . .

 . . . [Y]ou would just have a hole in the stopping that needs repaired. 

(Tr. 115–16.) (See Ex. J-5, at 134–35 (stating that holes in overcast would have been repaired 

had they been discovered).) 

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 However, Pine Ridge’s position is that the holes themselves did not violate its ventilation 

plan. (Resp’t Br. 4–6; Resp’t Reply 2–5.) According to Pine Ridge, the only violation was the 

improper pressure differential between the 023 MMU return and the entries it intersected. (Id.) 

Pine Ridge points out that the pressure differential remained even after the holes in the overcasts 

and stoppings were repaired. (Resp’t Br. 5–6; Resp’t Reply 4–5.) Had the entries’ air pressures 

been at the proper levels, fresh air would have leaked into the return entry, which would not have 

been as hazardous as contaminated air mixing with fresh air. (Tr. 20, 115–16.) Therefore, the 

pressure differential was the problem, not the holes in the ventilation controls. (Resp’t Br. 6; 

Resp’t Reply 4–5.) 

 It is true that the hole-ridden ventilation controls did not cause the leak of return air, insofar 

as the higher air pressure in the 023 MMU return entry pushed contaminated air into the lowerpressure primary intake entry, conveyor belt entry, and roadway entry. However, this view of 

the evidence is incomplete. It overlooks the crucial fact that the defective stoppings and 

overcasts gave passage to return air escaping from the 023 MMU into areas designated for intake 

air, including three entries. Had the holes not been present, return air would have escaped into 

the other entries primarily through opening the overcasts’ man doors, which typically remain 

closed. As Pine Ridge Superintendent Matkins acknowledged, underground mining conditions 

are dynamic, and events occurring during the course of “normal mining activity,” such as a 

collapsing block of coal or a change in the outdoor barometric pressure, can precipitate sudden 

changes in the mine ventilation system’s pressure, which may not be immediately detected. (Tr. 

99.) As the discoveries of MSHA Inspector Frampton show, effective ventilation controls are 

vital to maintaining the proper flow of air through the mine. Pine Ridge’s defective ventilation 

controls significantly contributed to improper airflow through the mine. Matkins admitted that 

fixing the holes was a necessary repair, just as a reasonably prudent mine operator would have 

recognized the holes in the overcasts and stoppings as hazards and repaired them. Accordingly, I 

determine that Pine Ridge violated 30 C.F.R. § 75.370(a)(1). 

2. Gravity and S&S

 I have concluded that Pine Ridge violated 30 C.F.R. § 75.370(a)(1), one of the Secretary’s 

mandatory safety standards, thus satisfying the first element of the Mathies test. 

 According to MSHA Inspector Frampton, the defective ventilation controls created two discrete 

safety hazards. First, by allowing contaminated return air to seep into the 022 MMU intake entry 

and the roadway entry, the violation increased miners’ exposure to coal and rock dust, 

contributing to the risk of occupational respiratory diseases such as black lung. (Tr. 32.) 

Second, Frampton determined that should a fire have occurred in the 023 MMU area of the mine, 

smoke could have permeated the primary entry to the 022 MMU and the roadway, which serve 

as the primary and secondary escapeways for the 022 MMU area, respectively. (Id.) That would 

have forced miners working on the 022 MMU to travel through smoke-filled passageways on 

their more than two-mile trip to the surface of the mine. (Id.) These discrete safety hazards 

satisfy the second element of Mathies. 

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 The next issue is whether the hazard fostered by Pine Ridge’s violation was reasonably likely 

to result in an injury. The Secretary’s position on this question is that “in evaluating whether the 

violations of [s]ection 75.370(a)(1) are S&S, one should assume the occurrence of the event that 

properly implemented ventilation plans are designed to prevent or lessen in severity.” (Sec’y Br. 

15.) Pine Ridge submits that analysis of the S&S issue should consider “the conditions and 

particular sequence of events as the inspector found them when the violation was written” and 

that the facts here do not support a conclusion of S&S. (Resp’t Br. 7–11; Resp’t Reply 5–10.) 

 Here, Pine Ridge Superintendent Matkins admitted that the violation exposed miners to coal and 

rock dust, though, alluding to the slow, progressive nature of black lung disease, he thought that 

what he perceived as the brief duration exposure was not problematic: “The only hazard that I 

believe could have existed is this respirable dust, and again, that’s not something that’s going to 

develop over two days.” (Tr. 103–04.) 

 Notwithstanding the Mine Act’s thirty-five-year-old mandate to ensure “to the greatest extent 

possible, that the working conditions in each underground coal mine are sufficiently free of 

respirable dust concentrations in the mine atmosphere to permit each miner the opportunity to 

work underground during the period of his entire adult working life without incurring any 

disability from pneumoconiosis [black lung disease] or any other occupation-related disease,” 

30 U.S.C. § 841(b), coal dust-induced respiratory ailments remain a pernicious risk to coal 

miners’ health. Recent data from the National Institute for Occupational Safety and Health 

indicate that black lung is becoming more common among the nation’s coal miners, with even 

younger miners showing evidence of advanced and seriously debilitating lung disease. 

Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust 

Monitors, 75 Fed. Reg. 64,412, 64,413 (Oct. 19, 2010). 

The Commission has long recognized the insidious nature of black lung disease: 

There is no dispute, however, that overexposure to respirable dust can result in 

chronic bronchitis and pneumoconiosis. The effects of the health hazards 

associated with overexposure to respirable dust usually do not cause immediate 

symptoms—as noted, simple pneumoconiosis is asymptomatic. This factor 

makes precise prediction of whether or when respiratory disease will develop 

impossible. Likewise, it is not possible to assess the precise contribution that a 

particular overexposure will make to the development of respiratory disease. In 

sum, the present state of scientific and medical knowledge . . . do[es] not make it 

possible to determine the precise point at which the development of chronic 

bronchitis or pneumoconiosis will occur or is reasonably likely to occur. 

Consolidation Coal Co., 8 FMSHRC 890, 898 (June 1986), aff’d, 824 F.2d 1071 (D.C. Cir. 

1987). Indeed, the nebulous, progressive nature of black lung disease is why a violation of the 

Secretary’s underground respirable dust concentration standard raises the rebuttable presumption 

that the violation is S&S. 8 FMSHRC at 899. 

34 FMSHRC Page 304

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 Similarly, Pine Ridge has acknowledged that its violation exposed its miners to the hazards of 

respirable dust. Although Frampton did not take samples of the air during his inspection (Tr. 

53), it is more likely than not that the violation would have subjected miners to heightened levels 

of coal and rock dust during the course of continued normal mining operations, as return air was 

allowed to flow into the 022 MMU’s primary intake entry and the roadway entry used by the 

miners in both working sections. Moreover, during the course of continued normal mining 

operations, this dust exposure would be reasonably likely to contribute to the development of 

black lung disease, a condition with debilitating health consequences. The hazard associated 

with this violation satisfies the third and fourth elements of Mathies. 

 As for the second safety hazard present at the mine, the salient question is whether the seepage 

of smoke through the numerous holes in the overcasts spanning the primary and secondary 

escapeways during a mine fire was reasonably likely to result in injuries in the event of a mine 

fire. The specific likelihood of a fire or explosion at the mine is not at issue, as that was not the 

hazard associated with the violation. Smoke leaking through the numerous holes in these 

overcasts would have affected miners as they attempted their two-mile journey to the surface, 

with the attendant risks of serious injuries from smoke inhalation or falls. Thus, I determine that 

this hazard satisfies the third and fourth elements of Mathies, too.

 Based on the foregoing, the discrete safety hazards associated with Pine Ridge’s violation were 

highly likely to result in reasonably serious injuries. Accordingly, the gravity allegations set 

forth in Order No. 7269756 are affirmed, and I conclude that the violation was S&S. 

3. Negligence and Unwarrantable Failure

 Undoubtedly, Pine Ridge’s failure to properly construct the overcasts and stoppings constituted 

negligent conduct. Here, the hole-ridden overcasts and stoppings amounted to a violation posing 

a reasonable risk of serious injury. These ventilation controls were supposed to prevent 

contaminated air flowing through the 023 MMU return entry from infiltrating the entries lying 

between the return entry’s turn out of the 023 MMU and the intersection with the main return 

entry. In fact, this area had only two other ventilation controls in addition to seven cited by 

MSHA Inspection Frampton. Frampton found that not one of these seven poorly-built controls 

(four stoppings and three overcasts) was effective. Pine Ridge Superintendent Matkins even 

acknowledged that the holes in the one overcast that he saw stemmed from an inherent flaw in its 

construction—namely, that the mostly-hollow metal decking of the Kennedy panels extended 

approximately eighteen inches on either side of the overcast. Significantly, I grant significant 

weight to Frampton’s testimony that these were some of the worst ventilation controls he has 

seen in his thirty-seven-year career in underground coal mining. (Tr. 43–44; Ex. J-4, at 113.) 

Moreover, the holes were visible. The holes in two of the stoppings were so large that they 

could be seen from dozens of feet away, as they were illuminated by lights hung along a 

conveyor belt running through an entry four crosscuts back from the stoppings. Though Pine 

Ridge speculates that these lights could have been switched off, nothing in the record before me 

34 FMSHRC Page 305

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supports that proposition. (Resp’t Br. 15; Resp’t Reply 15.) The holes in the overcasts were also 

readily visible, as they were formed by the defective Kennedy panel’s eighteen-inch span over 

each side of the overcast’s lower walls, which were approximately just below eye-level at five 

feet. Matkins insisted that the holes were not readily visible because, to be seen, one had to 

hunch down to see the hollow portions of the Kennedy panel’s metal decking, which was about 

five feet off the mine floor. (Tr. 77.) Indeed, the breaches of the overcasts’ protective barrier 

were located in the overhang between the hollow Kennedy panel decking and the overcasts’ 

lower walls. Nevertheless, the defects in the overcasts were so extensive and obvious that a 

superficial inspection of any of the overhangs of the overcasts’ Kennedy panels by slightly 

hunching down near one would have revealed the problem. 

 The violative condition was also permitted to persist for an extended period of time—twelve 

days. Matkins admitted that these holes most likely had existed since the overcasts’ construction 

immediately prior to the start of production on the 023 MMU on Friday, May 4, 2007. (Tr. 75.) 

Moreover, Matkins admitted that these holes constituted necessary repairs. At the same time, 

Matkins inspected the return two days prior to Frampton’s May 16 inspection, but he made no 

mention of the conditions of ventilation controls themselves. Matkins conducted this inspection 

after he had just returned from a week of leave for the birth of his daughter. Together I find this 

evidence insufficient to overcome the conclusion that the holes pervading the ventilation controls 

of the 023 MMU return were inexcusably overlooked.

 Based on these considerations, the other evidence held out by Pine Ridge to mitigate its 

negligence does not lessen its culpability for this violation. Matkins’s observation that even 

well-made ventilation controls leak is minimally relevant here because its ventilation controls 

were not well-made and needed significant repairs. (Tr. 73–74; Resp’t Reply 15.) Additionally, 

Pine Ridge’s post-violation efforts to correct the condition did not reduce its culpability for the 

violation itself. (Resp’t Br. 13; Resp’t Reply 12.) Rather, Pine Ridge was required to do so to 

avoid further sanctions under the Mine Act. See 30 U.S.C. § 820(b)(1) (providing civil penalty 

for failure to abate a violation). Finally, Pine Ridge notes that the evidence does not demonstrate 

how long the improper airflow persisted through the 023 MMU return. (Resp’t Br. 14–15; 

Resp’t Reply 14.) However, this misstates the issue. The problem in this case is that Pine Ridge 

used inadequate ventilation controls, which failed to control the flow of return air due to 

changing conditions associated with normal mining operations. The fact that a poorly built dam 

does not leak during the dry season is not evidence that it will prevent a flood during a strong 

summer storm.

 Given the gravity of this violation, its extensive and obvious nature, and the fact that it was 

allowed to persist for twelve days, I conclude that Pine Ridge’s violation arose from aggravated 

conduct constituting more than ordinary negligence, and thus was an unwarrantable failure to 

comply with the Secretary’s mandatory safety standard. 

34 FMSHRC Page 306

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4. Penalty

 Under Section 110(I) of the Mine Act, the Administrative Law Judge must consider the following 

six criteria in determining an appropriate civil penalty: 

[T]he operator’s history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator, 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). 

 As the Commission noted in Rushford Trucking, “the principles governing the Commission’s 

authority to assess civil penalties de novo for violations of the Mine Act are well established.” 

22 FMSHRC 598, 600 (May 2000). 

 Here, Pine Ridge demonstrated good faith in attempting to achieve rapid compliance once MSHA 

Inspector Frampton issued the order. Pine Ridge is also a relatively large operator, and the 

assessed penalty would not inhibit its ability to remain in business. Pine Ridge’s history of 

violations shows eleven prior S&S violations of the Secretary’s ventilation plan standard at 30 

C.F.R. § 75.370(a)(1), which were significantly less grave than the one presented in this case. 

(Ex. G-2.) However, Pine Ridge’s failure to address the holes in nearly every ventilation control 

of the 023 MMU return entry between the entry’s exit from the section and the main return entry 

for at least twelve days prior to Frampton’s inspection was an unwarrantable failure to comply 

with the Secretary’s mandatory safety standard. The gravity of Pine Ridge’s violation was 

serious, as it was S&S and posed the risk of permanently disabling injuries. Based on these 

considerations, I assess a $45,000 penalty for this violation. 

B. Order No. 7269757 – Weekly Examinations

 1. Violation 

 As for Order No. 7269757, the Secretary alleges that Pine Ridge violated 30 C.F.R. § 75.364 which 

states: 

(b) Hazardous Conditions. At least every 7 days, an examination for hazardous
 

conditions at the following locations shall be made by a certified person
 

designated by the operator:
 

. . . . 

(2) In at least one entry of each return air course, in its entirety, so that the entire
 

air course is traveled. 

34 FMSHRC Page 307

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 As discussed above, Pine Ridge’s hole-ridden stoppings and overcasts did not comply with 

its ventilation plan and posed a significant safety hazard that created the risk of permanently 

disabling injuries to twenty miners. See discussion supra Part V.A.1 and Part V.A.2. The holes 

constituted necessary repairs, as they were important to controlling the flow of contaminated 

return air leaving the 023 MMU section. Id. As for this violation, Pine Ridge disputes that the 

holes were inherently hazardous. It asserts that its weekly examiner could have seen the holes 

but determined they were not “hazards,” as the air pressure at the time of the examination could 

have forced fresh air from the intake entry, conveyor belt entry, and roadway entry into the 

return entry, instead of the other way around, as MSHA Inspector Frampton’s investigation 

revealed. (Resp’t Br. 16–17; Resp’t Reply 15–17.) Pine Ridge’s reasonable doubts about the air 

pressure of this area of the mine during the weekly examination preceding the Order is too thin 

of a reed upon which to rest a conclusion that these defective ventilation controls were not 

hazardous. The determination of compliance with this safety standard is an objective inquiry 

that asks whether the reasonably prudent operator conducted an adequate examination for 

“hazardous conditions.” 

As stated above, these holes were inherently hazardous because they failed to control the 

flow of return air through the mine during continued normal mining operations. See discussion 

supra Part V.A.1 and Part V.A.2. A reasonably prudent mine operator would have recognized 

and noted the significant risks they posed. Id. MSHA Inspector Frampton’s review of Pine 

Ridge’s inspection records revealed no notation of these hazards. An adequate weekly 

inspection would have noted these obvious problems. See discussion supra Part.A.3. Pine 

Ridge should have detected and recorded these hazards during its weekly examination of the 

return that took place between Friday, May 4, 2007, and Frampton’s inspection twelve days later 

on Wednesday, May 16, 2007. It did not. Therefore, I determine that Pine Ridge violated 

30 C.F.R. 75.364(b)(2). 

2. Gravity and S&S

 As noted above, the Secretary has established that Pine Ridge violated 30 C.F.R. 

§ 75.364(b)(2), a mandatory safety standard, thus satisfying the first element of Mathies. Pine 

Ridge’s failure to adequately examine the mine constituted a discrete safety hazard, meeting the 

second element of Mathies. The holes overlooked by its examination exposed the miners to the 

risk of black lung disease. See discussion supra Part V.A.2. Moreover, in the event of a fire in 

the 023 MMU, smoke would have flowed through these holes and into the primary and 

secondary escapeway and obstructed the miners in their attempt to safely escape the mine. Id. 

The hazards overlooked by Pine Ridge were reasonably likely to result in an injury of a 

reasonably serious nature. Id. This conclusion satisfies the remaining two elements of Mathies.

 Therefore, I determine that Pine Ridge’s failure to adequately examine the return entry rises to 

the level of an S&S violation. The gravity allegations set forth in Order No 7269757 are 

affirmed. 

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3. Unwarrantable Failure

 As previously noted, Pine Ridge should have detected the holes in the overcasts when 

performing its weekly inspections, notwithstanding the fact that a modicum of effort was 

involved in stopping slightly to peer underneath the Kennedy panels jutting out of the overcasts 

and into the return entry. See discussion supra Section IV.A.3. These holes were spread across 

seven of the nine ventilation controls separating the 023 MMU return entry and the other 

perpendicular entries lying between the 023 MMU section and the main return entry. The 

pervasive nature of the holes in the overcasts, which stemmed from the fact that the overcasts’ 

Kennedy panels visibly stuck out from the overcasts’ walls, is highly significant. The obvious 

nature of this design flaw should have attracted the attention of Pine Ridge’s weekly examiner. 

By that same token, the stoppings also had large, easily visible holes, which again were the result 

of their poor construction. These holes existed for at least twelve days. MSHA Inspector 

Frampton, who has thirty-seven years of underground mining experience up to the highest levels 

of private industry as a compliance officer, even noted that these ventilation controls were some 

of the worst he has ever seen. Coupled with Pine Ridge’s belief that a condition may be “nonhazardous” in the absence of any contingencies of normal mining operations that could make 

that condition dangerous, it is apparent that the failure to address these holes rose to the level of 

inexcusable indifference toward the Secretary’s safety standard. Again, Pine Ridge’s position 

would absolve the builder of a shoddy dam of responsibility for a flood due to a seasonal 

summer storm just because the dam worked during the dry winter months. This surely does not 

reflect the prophylactic purpose of the Secretary’s regulations. I conclude that Pine Ridge’s 

conduct rose to the level of aggravated conduct constituting more than ordinary negligence, and 

thus was an unwarrantable failure to comply with the Secretary’s mandatory safety standard 

4. Penalty – Weekly Examinations

 As noted above, I have considered Pine Ridge’s history of violations, which does not show a 

significant history of breaching 30 C.F.R. § 75.364, as well as Pine Ridge’s efforts to correct its 

violative conduct once it was identified by MSHA Inspector Frampton. Pine Ridge is also a 

relatively large operator, and the imposition of the Secretary’s proposed penalty would not 

inhibit its ability to remain in business. As I have concluded above, however, the gravity of this 

violation was very serious and resulted from Pine Ridge’s unwarrantable failure to comply with 

the Secretary’s mandatory safety standard. Accordingly, I assess a penalty of $45,000 for this 

violation. 

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VI. Order 

Based on the foregoing, Order Nos. 7269756 and 7269757 are hereby AFFIRMED. 

Pine Ridge is ORDERED to pay a penalty of $90,000 within 40 days of this decision. 

/s/ Alan G. Paez 

Alan G. Paez

 Administrative Law Judge

 Distribution: 

J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

 Blvd., 22nd Floor West, Arlington, VA 22209

 Melissa M. Robinson, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, P.O. Box 

 533, Charleston, WV 25322 

/jts, nev 

34 FMSHRC Page 310

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ADMINISTRATIVE LAW JUDGE ORDERS
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th Street, Suite 443
 

Denver, CO 80202-2500
 

303-844-3577/ FAX 303-844-5268
 

January 3, 2012 

SECRETARY OF LABOR o/b/o : DISCRIMINATION PROCEEDING

 CHARLES SCOTT HOWARD, : 

Complainant, : Docket No. KENT 2011-1379-D 

: 

v. : 

: 

CUMBERLAND RIVER COAL COMPANY, : Mine: Band Mill No. 2 

Respondent : Mine ID 15-18705 

ORDER GRANTING, IN PART, THE SECRETARY’S 

MOTION TO COMPEL PRODUCTION 

On November 3, 2011, the Secretary of Labor filed a Motion to Compel (“Motion”), 

joined by Complainant Charles Scott Howard, seeking the disclosure of documents listed on the 

privilege log prepared by Respondent, Cumberland River Coal Company (“CRCC”). The 

Respondent filed a motion in opposition, and subsequently an in camera review was conducted 

in order to determine if the privileges claimed by Cumberland were adequate to prevent the 

disclosure of the documents. 

The documents submitted by Respondent for review include 77 pages made up primarily 

of single or two-page emails. The Respondent provided an updated privilege log with the 

documents and, at the same time, provided this revised list to the Secretary and Howard. The 

privilege log indicates that each of the 77 pages is withheld on the basis of the attorney-client 

privilege and the work product privilege. 

Plaintiff Charles Scott Howard alleges that his employment was terminated as a result of 

his prior protected activities and that CRCC sought a medical opinion that would bar Howard’s 

return to work. Sec’y Br. 1-2. Howard was working as an underground miner at CRCC in July 

2010 when he suffered a head injury. In addition to the physicians who treated Howard, CRCC 

sought to have Howard examined by Dr. Granacher in March 2011. Sec’y Br. 2. Dr. Granacher 

concluded that Howard was able to do all the jobs he was trained to do with the only restriction 

being working “at heights” due to Howard’s head injury. Sec’y Br. 2. Thereafter, Valerie Lee, 

the human resources director for CRCC, sent a questionnaire to Dr. Granacher seeking further 

information and a conclusion concerning Howard’s ability to return to coal mine employment. 

Sec’y Br. 3. In May 2011, Howard’s physician and a neurologist to whom he was referred 

released Howard to return to his prior employment without restrictions. Sec’y Br. 3. Howard 

returned to work on May 16, 2011. Sec’y Br. 3. The mine sought the further opinion of 

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Dr. Granacher who then signed the questionnaire stating that Howard was totally and 

permanently disabled for all work around moving machinery. Sec’y Br. 4. Howard was then 

terminated from employment at CRCC. Sec’y Br. 4. 

With the exception of seven or eight pages, the documents withheld by CRCC are emails, each 

with a number of recipients. Howard asserts that those emails contain information about the 

company’s plan to enlist the help of Dr. Granacher, who is known to support the position of 

employers, and to seek an assessment from Granacher that would prevent Howard from 

returning to work. All but a handful of the emails are from Penny Carter, an RN, employed by 

Bluegrass Health Network. CRCC indicates that Carter is their agent “re: Howard’s workers 

compensation claim.” Carter sent emails to Denise Hartling of the risk management and 

insurance department of Arch Coal, and to Valerie Lee, a CRCC human resources manager. The 

emails also listed a string of additional recipients, including Sue McReynolds, a claims 

administrator for Underwriters Safety & Claims (“Underwriters”) which is listed by CRCC as 

their agent for Howard’s workers compensation claim, other CRCC and Arch employees, and in 

some instances a copy was sent to Mike Kafoury, assistant general counsel for Arch. Based 

upon the limited information provided by CRCC, it appears that CRCC utilizes the services of 

Underwriters Safety & Claims to administer workers compensation benefits, and Underwriters in 

turn has a contract with Bluegrass Health Network for case management services. CRCC Br. 4. 

Therefore, McReynolds works for a company contracted by Arch, and Carter, in turn, is a 

contractor for McReynolds’ employer. The communications from Carter, an RN with Bluegrass 

Health, therefore go to McReynolds, an employee of Underwriters, and to various people at Arch 

and CRCC. A number of those individuals who either sent or received the emails in question are 

potential witnesses in the case. 

The Secretary alleges that the documents being withheld are central to the CRCC 

decision-making process regarding whether or not Howard would be allowed to return to work. 

I agree that they may shed some light on that process. The documents reviewed in camera 

contain many communications between CRCC employees, contractors, agents and others 

concerning the status of Howard’s ability to return to work, and actions taken by the company in 

that regard. Moreover, many emails are back and forth, setting appointments, asking if a report is 

ready, and updating on the actions primarily of Penny Carter and her interaction with 

Granacher’s office. CRCC states that Penny Carter is employed by Bluegrass Health and was 

responsible for scheduling doctors’ appointments for Howard, receiving his diagnosis and 

prognosis, and monitoring the status of his recovery. CRCC Br. 4. The many recipients listed 

on various emails are employed either by CRCC, their parent Arch Coal, the workers 

compensation claims company and their subcontractors. Nearly all of the documents relate 

either directly (e.g., setting appointments) or indirectly (e.g., let’s have a conference call) to the 

workers compensation claim of Mr. Howard and, specifically, to his ability to return to work. 

While CRCC alleges that the only communications withheld are those that are “created by or 

directed to” outside counsel for workers compensation, Denise Davidson, or Arch counsel, 

Michael Kafoury, that is not necessarily the case. CRCC Br. 6. CRCC also argues that these 

two attorneys were included, along with a list of other recipients, for the purpose of providing 

legal advice. CRCC is involved in a number of legal cases involving Howard, including other 

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discrimination cases before the Commission and before the U.S. District Court. In the cases not 

related to workers compensation, CRCC is represented by other outside counsel, and not by 

Davidson or Kafoury. 

The Secretary argues first that the attorney-client privilege does not apply because the 

neither the person writing the email or receiving it is a “client” of CRCC, nor are the emails 

always directed to attorneys for CRCC. In addition, some of the emails, including those to 

Denise Hartling contain facts which she will be called upon to testify about and those cannot be 

shielded by a privilege. Further, the Secretary argues that there can be no work product privilege 

because the documents were not gathered in anticipation of litigation, nor are they a part of any 

information gathered by an attorney who represents a party in this discrimination litigation. She 

argues that, since Denise Davidson is a workers compensation counsel for Underwriters and 

Kafoury is an assistant counsel for Arch Coal, their work product applies only to the workers 

compensation litigation. 

CRCC argues that a number of emails are directed to their outside workers compensation 

counsel, Denise Davidson, and Arch’s Assistant General Counsel, Michael Kafoury. The 

remaining names on the emails are either employed by CRCC or are their agents, or the persons 

have a “common business purpose.”1

 The documents were either generated for the purpose of 

obtaining legal advice or with an “eye toward existing or anticipated litigation.” CRCC Br. 3. 

CRCC further argues that these emails were written to the in-house or outside attorney, and they 

supply information to the attorney for the purpose of receiving legal advice. 

The Attorney-Client Privilege 

The mine alleges that the attorney-client privilege applies to each of the 77 pages 

provided for in camera review. The documents can be divided into three general groups. First, 

the emails, described above, primarily from Penny Carter to a myriad of people with an 

occasional response. Next, the memos or pages from day planners from Jack McCarty, a CRCC 

employee and Valerie Lee, a CRCC human resources employee, are a separate group. Finally, 

there are four letters from Denise Davidson regarding the workers compensation claim of 

Howard.2

 I put these letters in a separate category, as they are the only pages that may have a 

legitimate claim of attorney-client privilege. 

The Supreme Court has explained that the attorney-client privilege “rests on the need for 

the advocate and counselor to know all that relates to the client’s reasons for seeking 

representation if the professional mission is to be carried out.” Trammel v. United States, 445 

U.S. 40, 51 (1980). The Court reiterated this “need to know” focus in Upjohn v. U.S., 449 U.S. 

1

 The only common business purpose that I can see is that of following Howard through the 

workers compensation process, as they would do any employee, whether or not in litigation. 

2

 It is not clear from the documents submitted by CRCC whether Davidson is employed and paid 

by Arch, by CRCC, or by Underwriters but all of her correspondence is addressed to 

Underwriters. 

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383, 390 (1981), where it stated that “the privilege exists to protect not only the giving of 

professional advice to those who can act on it but also the giving of information to the lawyer to 

enable him to give sound and informed advice.” 

The attorney-client; 5482;5482 privilege generally protects communications made by the 

client in confidence to his attorney. In order to claim the privilege, CRCC must demonstrate that 

the criteria for the attorney-client privilege have been met, namely: 

(1) the asserted holder of the privilege is or sought to become a 

client; (2) the person to whom the communication was made (a) is

 a member of the bar of a court or his subordinate and (b) in 

connection with this communication is acting as a lawyer; (3) the 

communication relates to a fact of which the attorney was 

informed (a) by his client (b) without the presence of strangers (c) 

for the purpose of securing primarily either (i) an opinion on law 

or (ii) legal services or (iii) assistance in some legal proceeding, 

and not (d) for the purpose of committing a crime or tort; and (4) 

the privilege has been (a) claimed and (b) not waived by the client. 

See Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (citing U.S. v. Jones, 696 F.2d 1069, 

1072 (4th Cir. 1982). 

CRCC has met none of the requirements in addressing the emails as privileged. First, 

although a number of the emails contain the name of the in-house attorney for Arch, there is no 

indication that those emails came from someone who holds the status of “client.” CRCC merely 

alleges that it is self-insured and, as a result, sees those working for Underwriters as employees 

or agents of CRCC. Penny Carter is even further removed from CRCC, as she is a contractor for 

Underwriters, not an employee or agent of CRCC. While I agree that employees, and in some 

cases, agents, can be clients of in-house counsel, the relationships here are too tenuous to 

indicate an attorney-client relationship. However, if Penny Carter or persons at Underwriters 

have an attorney-client relationship with CRCC attorneys, the emails are not sent to the in-house 

attorneys for the purpose of securing an opinion on law or legal services. Further the 

communication was made to any number of persons or strangers. The attorneys were merely 

another name on the string of recipients, and the fact that an attorney may have been on the 

string of recipients, does not make the email a privileged communication. I find, that there is not 

sufficient proof that the information-givers have significant ties to CRCC or share a common 

interest or business purpose, as asserted by CRCC. Even if they do, the emails are not for the 

purpose of seeking legal advice or opinion. Hence, CRCC has not met its burden of 

demonstrating that it meets the criteria for asserting the attorney-client privilege for the emails. 

Moreover, factual information that may have been conveyed to Respondent’s counsel by 

one or more authors of the emails, is generally not privileged or protected by the attorney-client 

privilege or the work product doctrine simply because the same facts have been conveyed to an 

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organization’s attorney. Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1981). Thus, “a party 

cannot conceal a fact merely by revealing it to his lawyer.” Id. at 396; United States v. Davis, 

131 F.R.D. 391, 401 (S.D.N.Y. 1990) (“[I]n house counsel’s law degree and office are not to be 

used to create a privileged sanctuary for corporate records.”); Bank Brussels Lambert v. Credit 

Lyonnais (Suisse) S.A., 93 Civ. 6876, 1995 U.S. Dist. Lexis 14808, (S.D.N.Y. Oct. 10, 1995) 

(“Discoverability of a communication depends on its nature, rather than its source. A fact is 

discoverable regardless of how a deponent came to possess it.”). Accordingly, documents 

prepared by the employees of contractors of CRCC or its parent company that contain factual 

information, are not protected. A review of the emails here demonstrates that each and every 

one contains factual information, such as appointment times and dates, the receipt of reports 

from various doctors concerning Howard’s condition, and a general report regarding the actions 

taken by one of the contractors for CRCC or Underwriters. There is one email from CRCC’s 

outside attorney simply forwarding an email from Howard’s attorney (# 63-64) and some emails 

that include Kafoury, an Arch attorney, as one of many on a string of addresses, containing a 

brief response. (#49, 52 and 69-72). I find nothing that appears to be information provided to an 

attorney from a client in any of the emails, that were submitted for the purpose of obtaining legal 

advice and I find that they contain no advice from an attorney, but merely the conveyance of 

facts and an occasional inquiry into the status of Howard’s appointments and forthcoming 

physicians reports. Therefore, I find, not only, that none of the items listed as an email on the 

privilege log provided by Respondent are subject to the attorney-client privilege but that the 

documents contain factual information that is not protected. 

Outside of the 69 pages that are emails, there is a claim of attorney-client privilege for 

the day planner of Valerie Lee (#1-2), the day planner of Jack McCarty (#67), and a memo from 

Jack McCarty (#75). While they are not subject to an attorney-client privilege, the information 

redacted relates to other employees whose privacy may be violated by the disclosure of the full 

document. CRCC represents that these four documents have been provided in the redacted 

version, and I find that the redactions are appropriate. The material redacted appears to be 

information about other employees and not related to Howard in any way. 

Finally, there are several letters from Davidson, the workers compensation attorney, to 

Underwriters concerning Howard (#19, 39, 53 and 59). These letters are directed to Sue 

McReynolds, the claims adjuster at Underwriters, and while they merely repeat what the doctors 

have told Underwriters, they do include some limited legal opinion as to the meaning of the 

reports. Although CRCC has not demonstrated that Davidson has an attorney-client relationship 

with them, I err on the side of caution in this instance. Therefore, I find these four documents to 

be subject to the attorney-client privilege and protected from disclosure. 

Work Product Doctrine 

The 69 pages of emails discussed above are also claimed as privileged under the theory 

of attorney work product. The attorney work product doctrine protects from disclosure materials 

assembled by or for an attorney in anticipation of litigation. FED. R. CIV. P. 26(b)(3) and (4). It 

includes documents prepared by someone other than an attorney, but for the same purpose. The 

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protected documents may be ordered disclosed only upon a showing that the party seeking 

discovery has substantial need for them and is unable to obtain their substantial equivalent by 

other means. “In ordering discovery . . . the court shall protect against disclosure of the mental 

impressions, conclusions, opinions or legal theories of an attorney or other representative of a 

party concerning the litigation.” Fed. R. Civ. P. 26(b)(3). 

Commission Procedural Rule 56(b), 29 C.F.R. § 2700.56(b), provides that parties may 

obtain discovery of any relevant matter that is not privileged. In ASARCO, Inc., 12 FMSHRC 

2548 (Dec. 1990), the Commission discussed the;1329;1330;1331;1329;1330;1331 work product 

privilege accepting the general standards of the federal court. In order to be protected by this 

immunity under FED. R. CIV. P. 26(b)(3), the material sought in discovery must be: (1) 

“documents and tangible things;” (2) “prepared in anticipation of litigation or for trial;” and (3) 

“by or for another party or by or for that party’s representative.” See generally 8 C. Wright & 

A. Miller, Federal Practice and Procedure § 2024, pp. 196-97 (1970); 6 J. Moore, J. Lucas & 

G. Grotheer, Moore's Federal Practice ¶26.64 (2d ed. 1989). It is not required that the 

document be prepared by or for an attorney. Wright & Miller, supra, § 2024, pp. 207-09; Moore, 

supra, ¶26.64[2]; U.S. v. Chatham City Corp., 72 F.R.D. 640, 642-43 (S.D. Ga. 1976). 

If materials meet the tests set forth above, they are subject to discovery “only upon a 

showing that the party seeking discovery has substantial need of the materials in the preparation 

of the party’s case and that the party is unable without undue hardship to obtain the substantial 

equivalent of the materials by other means.” FED. R. CIV. P. 26(b)(3). If the court orders that the 

materials be produced because the required showing has been made, the court is then required to 

“protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of 

an attorney or other representative of a party concerning the litigation.” Id.; Asarco 12 FMSHRC 

2548 (Dec. 1990). The burden of satisfying the three-part test is on the party seeking to invoke 

the ;1522;1523;1524;1522;1523;1524privilege, but once that party has met its burden, the 

burden shifts to the party seeking disclosure to make a requisite showing that there is substantial 

need and undue hardship to overcome the;1557;1557 privilege. P. & B. Marina, Ltd. 

Partnership v. Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991), aff'd, 983 F.2d 1047 (2d Cir. 

1992). 

As in ASARCO, the key question here is whether the materials sought were prepared in 

anticipation of litigation. The materials in dispute were prepared by some contractors, and in 

some instances by employees of Arch or CRCC. In light of the nature of the emails, the 

documents cannot be fairly said to have been prepared with of the prospect of litigation. Instead, 

I find that the documents were prepared in the ordinary course of business and not for the 

purpose of litigation. The 69 documents are primarily a summary by a contractor of the actions 

she has taken with regard to Howard’s work injury. They include information about doctors, 

appointments, transmittals of doctors reports and schedule changes, and are simply not directed 

at litigation but would be generated in the normal course of business. 

The phrase “prepared in anticipation of litigation” was defined in Hickman v. Taylor, 329 

U.S. 495 (1947), which answered “the basic question” of whether one party’s counsel may 

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“inquire into materials collected by an adverse party’s counsel in the course of preparation for 

possible litigation.” Id. at 505. Attorney work product was defined as the “files and the mental 

impressions of an attorney . . . reflected . . . in interviews, statements, memoranda, 

correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and 

intangible ways.” Id. at 510-11. The court notes, with regard to factual information that may 

have been conveyed to Respondent’s counsel by one or more of these employees or contractors, 

that purely factual information is generally not privileged or protected by the work product 

doctrine simply because the same facts have been conveyed to an organization’s attorney. 

Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1981). 

Here the emails contain almost entirely factual information. I have found no deliberation, 

opinion, comments, or revelations of mental impressions of an attorney or a person other than an 

attorney. The facts of this particular case, and a review of the 69 pages of documents, lead me to 

conclude that the documents were not generated in the course of an investigation, were not 

prepared for possible litigation, and were not prepared by an attorney or someone acting in her 

place. The documents were not prepared “in anticipation of litigation.” 

Finally, even if it could be said that the documents were subject to the work product 

privilege, the Secretary has shown a substantial need for the factual information in the 

documents. A review of the documents has established that they contain information so related 

to critical events that Howard could have a substantial need for the documents in preparation of 

his case. At the heart of this case is the allegation that CRCC deliberately chose Dr. Granacher 

to render an opinion and sought to influence that opinion. The emails contain facts that relate to 

those allegations, and Howard would have no other means to establish those facts. Hence, the 

need for disclosure is substantial. I see nothing in the emails that would lead me to believe that 

they need to be redacted to remove any impression or opinion of a CRCC or Arch attorney. 

The documents, the 69 emails, are therefore shielded neither by the attorney-client nor 

the attorney work product privileges asserted by Cumberland River Coal Company (“CRCC”). 

The Secretary’s Motion to Compel Production is GRANTED, in part, and CRCC is hereby 

ORDERED to provide a copy of each document attached to its privilege log with the exception 

of the documents numbered 1, 2, 67, 75, 19, 39, 53, and 59. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

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Distribution:
 

Mary Sue Taylor, Office of the Solicitor, U.S. Dept. of Labor, 618 Church St., Suite 230,
 

Nashville, TN 37219.
 

Tony Oppegard, P.O. Box 22446, Lexington, KY40522
 

Wes Addington, Appalachian Citizens Law Center, 317 Main St., Whiteburg, KY 48158
 

Willa Perlmutter and Glenn Grant, Crowell & Moring LLP, 1001 Pennsylvania Ave N.W.,
 

Washington D.C. 20004-2595
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 10, 2012 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. WEVA 2011-862 

Petitioner A.C. No. 46-08646-241826 

v. 

ROCK N ROLL COAL COMPANY, Mine: Mine No. 3 

Respondent 

ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 

OF ORDER REJECTING SETTLEMENT 

Before: Judge McCarthy 

The Secretary’s Motion and Commission Rule 31 

On November 9, 2011, the Secretary of Labor, acting through counsel in the Solicitor’s 

office, submitted a Motion to Approve Settlement and a Consent Order Approving Settlement 

pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, which provides: 

§ 2700.31 Penalty settlement. 

(a) General. A proposed penalty that has been contested before the 

Commission may be settled only with the approval of the Commission 

upon motion. In all penalty proceedings, except for discrimination 

proceedings arising under section 105(c) of the Mine Act, 30 U.S.C. 

815(c), a settlement motion must be accompanied by a proposed order 

approving settlement. In discrimination proceedings, a party shall file a 

motion to approve settlement that includes the factual support described in 

paragraph (b)(1) of this section, and that shall be filed and served in 

accordance with the provisions of 29 CFR 2700.5 and 2700.7, 

respectively. In discrimination proceedings, a party need not file a 

proposed order. 

(b) Content of motion. 

(1) Factual support. A motion to approve a penalty 

settlement shall include for each violation the amount of the penalty 

proposed by the Secretary, the amount of the penalty agreed to in 

settlement, and facts in support of the penalty agreed to by the parties. 

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Rather than setting forth such information in detail, the motion may 

incorporate by reference the information which has been included in the 

accompanying proposed order as required by paragraph (c)(1) of this 

section.

 (2) Certification. The party filing a motion must certify that 

the opposing party has authorized the filing party to represent that the 

opposing party consents to the granting of the motion and the entry of the 

proposed order approving settlement. 

(c) Content of proposed order. 

(1) Factual support. A proposed order approving a penalty 

settlement shall include for each violation the amount of the penalty 

proposed by the Secretary, the amount of the penalty agreed to in 

settlement, and facts in support of the penalty agreed to by the parties. 

Forms for proposed orders approving settlement are available on the 

Commission’s website (http://www.fmshrc.gov). Although parties are not 

required to use the forms on the Commission’s website, if proposed orders 

fail to include pertinent information, the motion and proposed order may 

be rejected for filing by the Commission in accordance with paragraph (f) 

of this section. Proposed orders shall not be submitted in PDF format. 

(2) Appearance by CLR. If a motion has been filed by a 

Conference and Litigation Representative (“CLR”) on behalf of the 

Secretary, the proposed order approving settlement accompanying the 

motion shall include a provision in which the Judge accepts the CLR to 

represent the Secretary in accordance with the notice of either limited or 

unlimited appearance previously filed with the Commission. A CLR does 

not need to obtain authorization from the Commission to represent the 

Secretary before the CLR files a motion to approve settlement and 

proposed order. 

(d) Filing and service of motion accompanied by proposed order.

 (1) Electronic filing. A motion and proposed order shall be 

filed electronically according to the requirements set forth in this rule and 

instructions on the Commission’s website (http://www.fmshrc.gov). Filing 

is effective upon the date of the electronic transmission of the motion and 

proposed order. The transmitting party is responsible for retaining records 

showing the date of transmission, including receipts. 

(i) Signatures. Any signature line set forth within a 

motion to approve settlement submitted electronically shall include the 

notation “/s/” followed by the typewritten name of the party or 

representative of the party filing the document. Such representation of the 

signature shall be deemed to be the original signature of the representative 

for all purposes unless the party representative shows that such 

representation of the signature was unauthorized. See 29 CFR 2700.6. 

(ii) Status of documents. A motion and proposed 

order filed electronically constitute written documents for the purpose of 

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applying the Commission’s procedural rules (29 CFR part 2700), and such 

rules apply unless an exception to those rules is specifically set forth in 

this rule. Any copies of the motion and proposed order which have been 

printed and placed in the official case file by the Commission shall have 

the same force and effect as original documents.

 (2) Filing by non-electronic means. A party may file a 

motion to approve settlement and an accompanying proposed order by 

non-electronic means only with the permission of the Judge.

 (3) Service. A settlement motion and proposed order shall 

be served on all parties or, if parties are represented, upon their 

representatives, by the most expeditious means possible and at least five 

business days before the motion and proposed order are filed with the 

Commission. If a party cannot be served by email, facsimile transmission, 

or commercial delivery, a copy of the motion and proposed order may be 

served by mail. A certificate of service shall accompany the motion and 

proposed order setting forth the date and manner of service.

 (e) Filing of motion and proposed order prior to filing of petition. 

If a motion to approve settlement and proposed order is filed with the 

Commission before the Secretary has filed a petition for assessment of 

penalty, the filing party must also submit as attachments, electronic copies 

of the proposed penalty assessment and citations and orders at issue. If 

such attachments are filed, the Secretary need not file a petition for 

assessment of penalty.

 (f) Non-acceptance of motion and proposed order. If a party filing 

a motion to approve settlement and a proposed order fails to include in the 

motion and proposed order pertinent information required by this rule and 

the Commission’s instructions posted on the Commission’s website, the 

Commission will not accept for filing the motion and proposed order. 

Rather, the Commission will inform the filing party of the need for 

correction and resubmission.

 (g) Final order. Any order by the Judge approving a settlement 

shall set forth the reasons for approval and shall be supported by the 

record. Such order shall become the final order of the Commission 40 

days after issuance unless the Commission has directed that the order be 

reviewed. A Judge may correct clerical errors in an order approving 

settlement in accordance with the provisions of 29 CFR 2700.69(c). 

In her Motion to Reconsider, the Secretary requests that Citation No. 8093045 be 

modified to change the classification of the citation from a 104(d)(1) citation to a 104(a) citation 

and to reduce the level of negligence from “high” to “moderate.” The modification was 

accompanied by a reduction in the penalty from $13,609 to $3,690. No factual basis was 

provided to justify the proposed modification to the citation or the resulting change in penalty. 

In particular, no factual explanation of mitigating circumstances was offered by the Secretary. 

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On December 8, 2011, the Secretary was informed by my office that I was unable to 

properly assess the adequacy of the proposed settlement without some factual basis for the 

proposed modification. Having failed to respond to my first request after eleven days, the 

Secretary was informed by my office that she would have until December 23, 2011 to submit a 

revised settlement. On December 20, 2011, following subsequent communication with the 

parties and after it became clear that the Secretary was not willing to comply with my request to 

provide additional factual support, I issued an Order rejecting the Secretary’s proposed 

settlement. In consideration of the impending holidays, the Order granted the Secretary an 

additional fifteen days to make the appropriate modification to the proposed settlement. 

On January 4, 2012, rather than submitting a revised settlement, the Secretary filed a 

Motion to Reconsider and Approve Settlement. In her Motion to Reconsider, the Secretary 

essentially contends that the Mine Act does not impose any duty to provide factual justification 

for settlement when the Secretary’s proposed reduction in penalty is consistent with the 

assessment criteria set forth in 30 C.F.R. § 100. Mot. at 2. The Secretary argues that the power 

to make substantive modifications to citations and orders is within the Secretary’s unreviewable 

prosecutorial discretion and that the Commission’s review of settlement proposals should be 

limited to whether the agreed upon penalty amount is consistent with the agreed upon 

substantive modification. Mot. at 3. The Secretary relies on the plain language in the last 

sentence of section 110(i) of the Act, which provides that “[i]n proposing civil penalties under 

this Act, the Secretary may rely upon a summary review of the information available to him and 

shall not be required to make findings of fact concerning the above factors.” Thus, the Secretary 

argues, the plain language of the Act does not require that she submit detailed factual findings in 

support of the penalty criteria. Id. Furthermore, the Secretary contends that providing detailed 

evidentiary or factual justifications for substantive modifications to citations and orders will 

necessarily require the Secretary to reveal her evidentiary evaluations, her legal theories, and her 

work product in a settlement motion, and inject the Commission into prosecutorial matters that 

would discourage voluntary settlements. Mot. at 4, 5. The Secretary also argues that it is 

absurd to conclude that the Secretary has unreviewable discretion to completely vacate a 

citation, but lacks the same level of discretion to make modifications short of vacation. Mot. at 

4. Finally, the Secretary represents that the Respondent’s representative has reviewed and 

agrees with her Motion. Mot. at 5. 

Analysis and Disposition 

The Commission derives its authority to review the adequacy of settlements proposed by 

the Secretary from section 110(k) of the Act which states that; “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). Thus, the Secretary 

arguably maintains unreviewable prosecutorial discretion to modify the citation during preassessment conference proceedings before the matter is contested before the Commission, but 

absent such early intervention, the Commission retains authority to approve settlements of civil 

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penalties in matters contested before the Commission.1 Congress, through Section 110(k), 

obviously thought it was important for miners' safety and health that the Commission review the 

Secretary's attempts to compromise, mitigate or settle proposed penalties in contested cases. 

Congress made clear, when it enacted the 1977 Mine Act, that the terms of all settlements had to 

be on the record and that the Commission has the final say on the settlement of contested cases. 

The following excerpt from the legislative history makes this clear: 

In addition to the delay in assessing and collecting penalties, 

another factor which reduces the effectiveness of the civil penalty as 

an enforcement tool under the Coal Act is the compromising of the 

amounts of penalties actually paid. In its investigation of the penalty 

collection system under the Coal Act, the Committee learned that to a 

great extent the compromising of assessed penalties does not come 

under public scrutiny. Negotiations between operators and Conference 

Officers of MESA are not on the record. Even after a Petition for Civil 

Penalty Assessment has been filed by the Solicitor with the Office of 

Hearings and Appeals, settlement efforts between the operator and the 

Solicitor are not on the record, and a settlement need not be approved 

by the Administrative Law Judge. Similarly, there is considerable 

opportunity for off the record settlement negotiations with 

representatives of the Department of Justice while cases are pending in 

the district courts. 

While the reduction of litigation and collection expenses may 

be a reason for the compromise of assessed penalties, the Committee 

strongly feels that since the penalty system is not for the purpose of 

raising revenues for the Government, and is indeed for the purpose of 

encouraging operator compliance with the Act's requirements, the 

need to save litigation and collection expenses should play no role in 

determining settlement amounts. The Committee strongly feels that the 

purpose of civil penalties, convincing operators to comply with the 

Act's requirements, is best served when the process by which these 

1

 In January 2012, MSHA will resurrect an abandoned but effective practice of 

implementing pre-assessment conferencing procedures to help reduce any backlog of future 

violations before the Commission. As noted in MSHA’s press release, under the procedures in 

most MSHA districts, a mine operator and miners’ representative may request a conference 

regarding a contested citation or order only after MSHA proposes a penalty assessment, and any 

settlements require approval by the Commission. The new conferencing process is designed to 

provide early resolution of disputes and reduce the number of contested citations and orders by 

resolving disputes before litigation ever occurs. See Press Release, Dep’t of Labor, MSHA to 

Start Using Pre-Assessment Conferencing Procedures (Dec. 1, 2011), available at 

http://www.msha.gov/MEDIA/PRESS/2011/NR111201.pdf. 

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penalties are assessed and collected is carried out in public, where 

miners and their representatives, as well as the Congress and other 

interested parties, can fully observe the process. 

To remedy this situation, Section 111(1) provides that a 

penalty once proposed and contested before the Commission may not 

be compromised except with the approval of the Commission. 

Similarly, under Section 111(1) a penalty assessment which has 

become the final order of the Commission may not be compromised 

except with the approval of the Court. By imposing these 

requirements, the Committee intends to assure that the abuses involved 

in the unwarranted lowering of penalties as a result of off the record 

negotiations are avoided. It is intended that the Commission and the 

Courts will assure that the public interest is adequately protected 

before approval of any reduction in penalties. 

S. SUBCOMM. ON LABOR, COMM. ON HUMAN RESOURCES, FEDERAL MINE SAFETY AND HEALTH 

ACT OF 1977, S. Rep. 95-181, at 44 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3445. 

Accordingly, the Commission has held that section 110(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). Thus, while it is within the Secretary’s prosecutorial discretion to vacate a citation, 

see, e.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993), once the citation is contested before 

the Commission, the final approval of any mitigation, compromise, or settlement is a 

quintessentially adjudicatory function. To perform that function in exercise of its statutory 

authority, the Commission has promulgated Rule 31 concerning penalty settlements, which 

provides, inter alia, that a motion to approve a penalty settlement shall include facts in support of 

the penalty agreed to by the parties. See, supra, Commission Rule 31(b)(1). Thus, 

“[s]ettlements are committed to the ‘sound discretion’ of the Commission and its judges” and 

they “are not bound to endorse all proposed settlements.” Madison Branch Management, 17 

FMSHRC 859, 864 (June 1995). 

 It is clear from the plain language of section 110(k), the legislative history quoted above, 

and Commission precedent and procedural rules that I am required to assess a proffered 

settlement that reduces a proposed penalty in a matter contested before the Commission against 

the penalty criteria of section 110(i) and the comprehensive objectives of the Act. Without 

having been provided with any factual basis to justify the modification at issue, I am unable to 

fulfill my obligations under the Act, and decline to approve the Secretary’s proposed settlement. 

The Secretary’s arguments to the contrary lack merit. The language of Section 110(i) 

relied on by the Secretary does little to advance her arguments in the settlement context. The 

final sentence in section 110(i) is a directive to the Secretary when issuing a proposed civil 

penalty, not when seeking Commission approval of a proposed settlement. It is reasonable to 

expect that a higher factual burden be placed on a settlement than when a civil penalty is initially 

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proposed. In any event, the fact that the Secretary need not make findings of fact when 

proposing a settlement does not mean that the Commission cannot require them when approving 

a settlement in a contested case that reduces, compromises or otherwise mitigates the penalty. 

As shown above, the Secretary’s efforts at self-aggrandizement directly collide with 

Congressional intent that the Commission ensure that the public interest is adequately protected 

before approval of any reduction in penalties. 

I also find no merit in the Secretary’s argument that requiring a factual explanation for a 

proposed modification to a citation or order in a contested matter in the settlement context would 

require detailed findings of fact or be unduly burdensome. In the majority of cases, the Secretary 

need only proffer a short factual justification for the modification to the citation and concomitant 

reduction in penalty, which presumably has been provided by the operator and need not be 

agreed to by the Secretary. In cases where the alleged violative condition or practice is more 

severe or has resulted in actual injury or death of a miner, however, a more detailed justification 

may be required by the Commission to ensure compliance with the Act’s objectives. In either 

case, it has never been suggested that the Secretary must provide affidavits or weighty proffers to 

justify the proposed settlement. 

I similarly reject the Secretary’s argument that requiring a factual basis would 

compromise the Secretary’s thought processes, legal theories, or work product privilege. The 

factual basis for a settlement does not need to include the thought processes, legal theories, or 

work product of the Secretary to provide sufficient guidance as to whether the settlement 

effectuates the purposes of the Act. It needs to include a proffer of facts sufficient to justify the 

settlement. Such facts generally are not encompassed by the work product privilege, which 

applies to documents prepared in anticipation of litigation, not settlement. See, e.g. ASARCO, 

Inc., 12 FMSHRC 2548, 2557-58 (December 1990). The privilege is intended to prevent an 

unfair advantage to the opposing party. There is no such advantage to be gained in settling a 

case in the public interest. And if, for example, the Secretary agrees in a settlement that there is 

some validity to the respondent’s arguments, such an admission is not admissible if the 

settlement is rejected and the case heard. 

The Secretary contends by way of hypothetical that she should not be required to reveal 

her decision-making process in seeking approval of a settlement or admit that she lacks sufficient 

evidence to confidently pursue her case, such as when she does not want to compel a reluctant 

witness to testify. No such requirements are imposed on the Secretary. In such situations, the 

Secretary truthfully, but artfully, can set forth the factual basis for settlement without revealing 

deliberative process or mental impressions, or, if she cannot somehow do so and can no longer 

meet her burden of proof, she can exercise her discretion to vacate the underlying citation or 

order. What she cannot do, as the Secretary’s counsel audaciously has done here, is to fail to 

include in the settlement motion facts in support of the penalty agreed to by the parties, as set 

forth in Commission Rule 31(b)(1). 

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The Secretary's Motion for Reconsideration of Order Rejecting Settlement fails to 

provide valid argument to justify her refusal to provide a factual basis for the settlement of the 

above-captioned matter. Accordingly, the Motion for Reconsideration is DENIED. A Notice of 

Hearing will issue under separate cover. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

James F. Bowman, Rock N Roll Coal Company, Inc., P.O. Box 99, Midway, WV 25878 

/tjr 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 18. 2012 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. LAKE 2010-968-M 

Petitioner A.C. No. 33-01993-229163 

v. 

MORTON SALT DIVISION / MORTON Mine: Fairport
 

INTERNATIONAL INC.,

 Respondent
 

ORDER ACCEPTING APPEARANCE
 

ORDER DENYING SETTLEMENT MOTION
 

Before: Judge Lesnick 

This case is before me under section 105(d) of the Federal Mine Safety and Health Act of 

1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary of Labor’s Conference and Litigation 

Representative (“CLR”) filed a notice of limited appearance in this case. It is ORDERED that 

the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 

(Nov. 1994). The CLR has filed a motion to approve settlement. A reduction in the penalty 

from $5,000.00 to $100.00 is proposed. The CLR also requests that Citation No. 6501298 be 

modified to specify that 30 C.F.R. § 56.10(d) was violated, rather than 30 C.F.R. § 50.10(a) as 

set forth in the citation, and to reduce the level of negligence from “high” to “moderate.” 

Citation No. 6501298 specifies that Morton Salt’s Fairport Mine “experienced a power 

outage affecting both hoists on 6/22/2010. The mine operator failed to notify MSHA in a timely 

manner. Several hours elapsed before notification was received. The mine operator was aware 

of the requirements.” The citation further specifies that there was no likelihood of injury or 

illness as a result of the violation, that no persons were affected, that the violation was not 

significant and substantial (S&S),1

 and that the violation was the result of the high negligence of 

the operator. 

1

 The S&S terminology is taken from section 104(d)(1) of the Mine 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)(1). 

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In support of the settlement motion, the CLR states that the “Secretary has determined 

that the violation was not subject to penalties defined in SECTION 5 of the MINER ACT of 

2006.” Sec’y Mot. at 1. As to the request to modify the negligence designated for the violation, 

the CLR states: 

Respondent asserts that the following constitute mitigating factors: 

The accident occurred at 01:03. On site management reviewed the 

reporting procedure and determined that the condition did not 

require immediate notification. Upon arrival at the mine site, 

senior management reviewed the condition and the Safety 

Manager called and notified MSHA at 07:30. 

Id. at [1-2]. The CLR provides no further factual background. 

In 2006, in response to the tragic accidents at the Sago Mine and Aracoma Alma No. 1 

Mine, Congress enacted the the Mine Improvement and New Emergency Response Act of 2006, 

Pub. L. No. 109-236, 120 Stat. 493 (“MINER Act”). Section 103(j) of the Mine Act requires a 

mine operator to notify MSHA in the event of an accident occurring at its mine. 30 U.S.C. 

§ 813(j). Section 5(a) of the MINER Act amended Mine Act section 103(j) such that “the 

notification required shall be provided by the operator within 15 minutes of the time at which the 

operator realizes that the death of an individual at the mine, or an injury or entrapment of an 

individual at the mine which has a reasonable potential to cause death, has occurred.” Section 

5(b) of the MINER Act amended Mine Act section 110(a) by adding a new subsection providing 

that failure to meet the requirements of section 103(j) relating to the 15 minute requirement 

“shall be assessed a civil penalty . . . of not less than $5,000 and not more than $60,000.” 

30 U.S.C. § 820(a)(2). 

The Secretary’s regulation implementing the MINER Act amendments relating to the 15 

minute requirement are less than a model of clarity. Section 50.10, the section under which the 

operator here was cited, provides: 

The operator shall immediately contact MSHA at once 

without delay and within 15 minutes at the toll-free number, 

1-800-746-1553, once the operator knows or should know that an 

accident has occurred involving: 

(a) A death of an individual at the mine; 

(b) An injury of an individual at the mine which has a 

reasonable potential to cause death; 

(c) An entrapment of an individual at the mine which has a 

reasonable potential to cause death; or 

(d) Any other accident. 

30 C.F.R. § 50.10. Under the scant facts of this case which the CLR had provided me, the 

Secretary apparently reads this regulation to exempt “[a]ny other accident” from the 15 minute 

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requirement of section 5 of the MINER Act. This clearly is not what section 50.10 provides 

since nothing in the regulation exempts subsection (d) from the 15 minute requirement. Insofar 

as section 50.10 as promulgated conflicts with Mine Act section 103(j), I will defer to the 

Secretary’s reading of her own regulation. “Any other accident” thus refers in section 50.10 to 

an accident that does not involve the death of an individual, or an injury or entrapment with “a 

reasonable potential to cause death,” and is thus exempt from the 15 minute requirement. 

Here, the accident at issue was that the mine “experienced a power outage affecting both 

hoists.” Citation No. 6501298. The CLR, however, provides no facts upon which I could assess 

the likelihood of whether the power outage and hoist problems could have potentially led to an 

injury or entrapment with “a reasonable potential to cause death,” which the Secretary 

presumably determined when she concluded that the operator violated section 50.10(d) rather 

than section 50.10(a). In the absence of any such facts, it is impossible for me to conclude that 

the Secretary had a reasonable basis for her determination. 

Having considered the representations and documentation submitted in this case, and I 

therefore conclude that the proffered settlement lacks a sufficient evidentiary basis. 

WHEREFORE, the motion for approval of settlement is DENIED without prejudice. 

/s/ Robert J. Lesnick 

Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: 

Daniel J. Goyen, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

515 West First Street, Room 333, Duluth, MN 55802 

William Shull, Representative of Miners, 414 Fifth St., Fairport, OH 44077 

Richard Hickman, Safety Manager, Morton Salt International Inc., P.O. Box 428, Grand River, 

OH 44045 

/tjr 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

January 18, 2012 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. LAKE 2011-189-M 

Petitioner A.C. No. 33-04578-237996 

v. 

ARCH MATERIALS LLC, Mine: Batavia 

Respondent 

ORDER ACCEPTING APPEARANCE
 

ORDER DENYING SETTLEMENT MOTION
 

Before: Judge Lesnick 

This case is before me under section 105(d) of the Federal Mine Safety and Health Act of 

1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary of Labor’s Conference and Litigation 

Representative (“CLR”) filed a notice of limited appearance in this case. It is ORDERED that 

the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 

(Nov. 1994). The CLR has filed a motion to approve settlement. A reduction in the penalty 

from $5,000.00 to $100.00 is proposed. The CLR also requests that Citation No. 6501538 be 

modified to specify that 30 C.F.R. § 50.10(d) was violated, rather than 30 C.F.R. § 50.10(a) as 

set forth in the citation. 

Citation No. 6501538 states that, at 6:40 A.M. on September 20, 2010, an “unplanned” 

roof fall was discovered in Arch Materials’ Batavia Mine the dimension of which were 200 feet 

long, 40 feet wide, and 8 feet thick. The roof fall was reported to MSHA that same day at 

approximately 8:00 A.M. The citation further specifies that there was no likelihood of injury or 

illness as a result of the violation, that no persons were affected, that the violation was not 

significant and substantial (S&S),1

 and that the violation was the result of the low negligence of 

the operator. In support of the settlement motion, the CLR states simply that he “determined that 

the violation was not subject to penalties defined in SECTION 5 of the MINER ACT of 2006.” 

Proposed Order. The CLR provides no further factual background. 

1

 The S&S terminology is taken from section 104(d)(1) of the Mine 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)(1). 

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In 2006, in response to the tragic accidents at the Sago Mine and Aracoma Alma No. 1 

Mine, Congress enacted the the Mine Improvement and New Emergency Response Act of 2006, 

Pub. L. No. 109-236, 120 Stat. 493 (“MINER Act”). Section 103(j) of the Mine Act requires a 

mine operator to notify MSHA in the event of an accident occurring at its mine. 30 U.S.C. 

§ 813(j). Section 5(a) of the MINER Act amended Mine Act section 103(j) such that “the 

notification required shall be provided by the operator within 15 minutes of the time at which the 

operator realizes that the death of an individual at the mine, or an injury or entrapment of an 

individual at the mine which has a reasonable potential to cause death, has occurred.” Section 

5(b) of the MINER Act amended Mine Act section 110(a) by adding a new subsection providing 

that failure to meet the requirements of section 103(j) relating to the 15 minute requirement 

“shall be assessed a civil penalty . . . of not less than $5,000 and not more than $60,000.” 

30 U.S.C. § 820(a)(2). 

The Secretary’s regulation implementing the MINER Act amendments relating to the 15 

minute requirement are less than a model of clarity. Section 50.10, the section under which the 

operator here was cited, provides: 

The operator shall immediately contact MSHA at once 

without delay and within 15 minutes at the toll-free number, 

1-800-746-1553, once the operator knows or should know that an 

accident has occurred involving: 

(a) A death of an individual at the mine; 

(b) An injury of an individual at the mine which has a 

reasonable potential to cause death; 

(c) An entrapment of an individual at the mine which has a 

reasonable potential to cause death; or 

(d) Any other accident. 

30 C.F.R. § 50.10. Under the scant facts of this case which the CLR had provided me, the 

Secretary apparently reads this regulation to exempt “[a]ny other accident” from the 15 minute 

requirement of section 5 of the MINER Act. This clearly is not what section 50.10 provides 

since nothing in the regulation exempts subsection (d) from the 15 minute requirement. Insofar 

as section 50.10 as promulgated conflicts with Mine Act section 103(j), I will defer to the 

Secretary’s reading of her own regulation. “Any other accident” thus refers in section 50.10 to 

an accident that does not involve the death of an individual, or an injury or entrapment with “a 

reasonable potential to cause death,” and is thus exempt from the 15 minute requirement. 

Here, the accident at issue was a roof fall of mammoth and potentially lethal dimensions. 

The CLR, however, provides no facts upon which I could assess the likelihood of whether the 

roof fall could have potentially caused or led to an injury or entrapment with “a reasonable 

potential to cause death,” which the CLR presumably determined when he concluded that the 

operator violated section 50.10(d) rather than section 50.10(a). In the absence of any such facts, 

it is impossible for me to conclude that the CLR had a reasonable basis for his determination. 

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Having considered the representations and documentation submitted in this case, and I 

therefore conclude that the proffered settlement lacks a sufficient evidentiary basis. 

WHEREFORE, the motion for approval of settlement is DENIED without prejudice. 

/s/ Robert J. Lesnick 

Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: 

Daniel J. Goyen, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

515 West First Street, Room 333, Duluth, MN 55802 

Thomas Belville, Plant Manager, Arch Materials LLC, 4438 State Route 276, Batavia, OH 

45103 

/tjr 

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 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

 Washington, D.C. 20001

 January 19, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA),

Petitioner

 :

 :

 Docket No. KENT 2008-562 

A.C. No. 15-18861-137278 

v. :

 : Docket No. KENT 2008-782 

CONSHOR MINING, LLC,

Respondent

 :

 :

 :

 A.C. No. 15-18861-143281 

Mine No. 1 

CERTIFICATION OF INTERLOCUTORY RULING 

Before: Judge Feldman 

These matters present novel issues concerning the appropriate standard for imposing 

enhanced civil penalties under the flagrant violation provisions of section 110(b)(2) of the 

Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement 

and New Emergency Response Act of 2006 (“Act,” “Mine Act,” or “New Miner Act”), 

30 U.S.C. § 820(b)(2). Section 110(b)(2) became effective on August 17, 2006, following 

the Sago Mine disaster. Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury.” 

30 U.S.C. § 820(b)(2). 

The issue of the applicable evidentiary requirements to support a flagrant violation 

based upon a “reckless failure” to eliminate a known violation is currently before the 

Commission. Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ), PDR granted 

May 6, 2011. These proceedings concern the novel question regarding the necessary 

evidentiary requirements to support a flagrant violation based on a “repeated failure” to 

eliminate a known violation. 

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The controlling issue addressed in the Order dated November 28, 2011, which is being 

certified for interlocutory review, is whether a violation not attributable to reckless conduct 

can be deemed flagrant under 30 U.S.C. § 820(b)(2) based on a history of similar violations. 

Conshor Order, 33 FMSHRC ___ (Nov. 2011) (ALJ), slip op. at 15. The Secretary seeks 

to impose an enhanced penalty for each of three alleged unwarrantable violations of 

section 75.220(a)(1), which governs roof control plans. The subject violative conditions 

are cited in 104(d)(2) Order Nos. 7502867 and 7502879 issued in May 2007 contained in 

Docket No. KENT 2008-562, and in Order No. 7503222 issued in June 2007 contained in 

Docket No. KENT 2008-782. In the 104(d) Orders, the alleged violations were attributable to 

a high degree of negligence, rather than reckless conduct. To elevate the gravity of the cited 

conditions beyond unwarrantable failure, the Secretary has advanced the proposition that the 

cited violations are flagrant based on Conshor Mining, LLC’s (“Conshor’s”) history of similar 

unwarrantable violations. 

The November 28, 2011, Order held that the Secretary’s proffered interpretation of 

section 110(b)(2) with respect to a prior history of violations as a basis for a “repeated flagrant 

violation” could not be given effect because: (1) the Procedure Instruction Letter and 

News Release criteria for supporting a repeated flagrant violation are substantive rules that 

were not promulgated in accordance with the notice-and-comment provisions of section 553 of 

the Administrative Procedure Act, 5 U.S.C. § 553; (2) in Berwind, 21 FMSHRC 1284, 1317 

(Dec. 1999), the Commission declined to extend Chevron deference to specific tests for charges 

brought by the Secretary; and, (3) notwithstanding Berwind, the Secretary’s interpretation of 

section 110(b)(2) is not entitled to Chevron deference because the language of the section is 

unambiguous, and, alternatively because the Secretary’s interpretation is arbitrary and 

unreasonable. Id., slip op. at 3. 

Rather the November 28, 2011, Order determined that a violation is flagrant if, based on 

the facts surrounding the violation, the violative condition is “conspicuously bad, offensive, or 

reprehensible,” regardless of a mine operator’s record of prior violations. See The American 

Heritage Dictionary 667 (4th ed. 2009). Id. at 12, 15. Namely, a violation is deemed to be 

flagrant if it is caused by egregious conduct underlying the cited condition as evidenced by 

a reckless or repeated failure to eliminate a known violation that could substantially and 

proximately cause death or serious injury. Id. at 15 (emphasis added). 

The November 28, 2011, Order noted that although the terms “reckless” and “repeated” 

both describe underlying conduct that supports a flagrant violation charge, a repeated flagrant 

violation may evidence greater culpability warranting a higher enhanced civil penalty. Id. at 4. 

Examples of repeated flagrant conduct are conspicuous dangerous violative conditions that are 

either indifferently overlooked during a series of pre-shift and on-shift examinations, or, are 

reported and ignored. Id. 

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Consequently, the November 28, 2011, Order directed the Secretary to submit a 

prehearing statement addressing whether the particular facts surrounding the subject cited 

violations evidence, at a minimum, the requisite reckless conduct necessary to support flagrant 

designations, and if so, the basis for such allegations. The Secretary’s December 20, 2011, 

prehearing statement averred that: (1) in Order No. 7502867 the preshift examiner knew or 

should have known that the last row of permanent roof support exceeded the maximum 

allowable distance of four feet from the face; (2) in Order No. 7502879 the operator was once 

again cited for a similar roof control condition, which had been cited six days earlier in another 

area of the mine, for the last row of permanent roof support exceeding the maximum allowable 

distance of four feet from the face; and, (3) in Order No. 7503222 the subject roof control 

condition concerned sloughage that allegedly was “obvious, extensive and developed over time.” 

Sec’y Resp. at 1-4. Significantly, however, the Secretary’s prehearing statement did not allege 

that the cited conditions were attributable to reckless conduct. 

Conshor responded to the Secretary’s prehearing order on January 9, 2012. Conshor 

argues that a “knew or should have known” standard with respect to a cited violation does not 

provide an adequate basis for a flagrant designation. Conshor Resp. at 2. Since the Secretary 

has not contended that the subject alleged violations were attributable to recklessness, Conshor 

asserts that, consistent with the November 28, 2011, Order, “the Secretary may not seek 

penalties for flagrant violations for Order Nos. 7502867, 7502879, and 7503222.” Id. at 4. I 

construe Conshor’s response as a Motion to Dismiss the flagrant violation designations. 

Commission Rule 76(a)(1)(i) provides that a Judge may certify, upon his own motion, 

that his interlocutory ruling involves a controlling question of law and immediate review will 

materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(1)(i). 

As noted, the question addressed in the November 28, 2011, Order, is whether a violation 

that is not attributable to reckless conduct can be deemed flagrant under 30 U.S.C. § 820(b)(2) 

based on prior similar violations. This issue presents a novel and controlling question of law that 

requires interlocutory resolution. 

Resolution of this question will materially advance the final disposition of these 

proceedings. Rule 55 empowers a Judge to rule on offers of proof, receive relevant evidence, 

and hold conferences for the purposes of effectuating settlement or simplifying the issues. 

29 C.F.R. § 2700.55. While the predicate violations in this case have become final, continued 

uncertainty regarding whether the relevant evidence should be limited to the facts surrounding 

the violation, or, include a history of violations, interferes with the Judge’s ability to conduct and 

regulate the course of the hearing, or effectuate settlement. 

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Finally, the grant of interlocutory review would provide an expeditious method 

of resolving fundamental questions that impact other flagrant cases currently before 

the Commission.1 2 

ORDER 

In view of the above, the November 28, 2011, Order addressing the standard for 

adjudicating violations deemed flagrant by the Secretary based on a history of similar violations 

is certified for interlocutory review pursuant to Commission Rule 76(a)(1)(i). 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Christian P. Barber, Esq., U.S. Department of Labor, Office of the Solicitor, 

618 Church Street, Suite 230, Nashville, TN 37219 

Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, 

Charleston, WV 25326-1588 

/jel 

1

 For example, in Docket Nos. LAKE 2008-666 and WEVA 2008-1265, pending before 

Judge Melick and Judge Barbour, respectively, the Secretary asserts that violations attributable 

to high negligence, rather than a reckless disregard, are properly deemed flagrant based on a 

history of similar violations. 

2 The position advanced by the Secretary elevates the significance of an unwarrantable 

failure. Immediate review may facilitate settlement negotiations in numerous pending cases 

involving alleged unwarrantable predicate violations. Without Commission direction, settlement 

of these “predicate violations” may be impeded if these violations can be used as the basis for 

enhanced civil penalties of as much as $220,000. Absent settlement, litigation of alleged 

flagrant violations based on prior conduct may require awaiting the Commission’s final 

disposition of the alleged predicate violations. 

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 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9953 / FAX: 202-434-9949
 

January 20, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING: 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEVA 2008-1265 

Petitioner, : A.C. No. 46-04168-000151760 

:

 : Mine: Sentinel 

v. :

 :

 :

WOLF RUN MINING, CO., :

 Respondent. : 

ORDER DENYING CROSS MOTIONS FOR PARTIAL SUMMARY DECISION
 

AND 

NOTICE OF HEARING
 

In this civil penalty case arising under sections 105 and 110 (30 U.S.C. §§ 815, 820) of 

the Federal Mine Safety and Health Act of 1977 (“Mine Act”or “Act”) the Secretary of Labor 

(“Secretary”) on behalf of her Mine Safety and Health Administration (”MSHA”) petitions for 

the assessment of a civil penalty of $142,900 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 75.400. The Secretary charges that the violation occurred on November 14, 

2007, at the Sentinel Mine of Wolf Run Mining Co. (“Wolf Run”), an underground bituminous 

coal mine located in Barbour County, West Virginia. MSHA’s inspector found that the violation 

was a significant and substantial contribution to a mine safety hazard (“S&S” violation) and was 

the result of the company’s unwarrantable failure to comply with the standard. The inspector 

therefore cited the alleged violation in an order (Order No. 6605922) issued pursuant to section 

104(d)(2) of the Mine Act. 30 U.S.C. § 104(d)(2). 

When proposing a penalty for the alleged violation, the Secretary waived the regular 

assessment procedures and determined that a special assessment was warranted. See Petition, 

Exhibit A, Narrative Findings for a Special Assessment. The Secretary stated, “The violation 

was considered to be flagrant; that is, a reckless and repeated failure to make reasonable efforts 

to eliminate a known violation of a mandatory . . . safety standard that substantially and 

proximately caused, or reasonably could have been expected to cause death or a serious bodily 

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injury.”1 Id. Upon receipt of the Secretary’s petition Wolf Run answered, admitting the 

Commission’s jurisdiction but denying the alleged violation. Answer 1. The company also 

challenged the inspector’s S&S and unwarrantable findings. 

The case was assigned to the court, which ordered the parties to confer regarding the 

possibility of a settlement. When a settlement proved impossible, the Secretary moved to 

consolidate the subject case, Docket No. WEVA 2008-1265, with Docket No. WEVA 2009-420, 

another case involving Wolf Run. In addition, the Secretary asked that the cases, once 

consolidated, be stayed pending the decision of Commission Judge Jerold Feldman in Wolf Run 

Mining Co., WEVA 2008-1816. The Secretary noted that one of the alleged violations in Docket 

No. WEVA 2008-1816 was Order No. 7101469, which charged an S&S and unwarrantable 

violation of section 75.400. The Secretary stated that, “When classifying Order No. 6605922 in 

WEVA 2008-1265 as a repeated failure flagrant violation, the Secretary based that 

determination, in part on the issuance of Order No. 7101469, which was issued under the same 

standard [section 75.400] for the same conditions in the same section of the mine several months 

prior.” Mot. for Consol. and Stay 3. The Secretary noted that according to MSHA’s procedures 

for evaluating repeated flagrant violations, the violations must meet the following criteria: 

1. Citation or order is evaluated as [S&S], 

2. Injury or illness is evaluated as at least permanently

 disabling, 

3. Type of action is evaluated as unwarrantable

 failure,
 

4. At least two prior “unwarrantable failure” 

1

 Section 110(b)(2) of the Mine Act as amended by the Mine Improvement and New 

Emergency Response Act of 2006 (“MINER Act”) became effective on August 17, 2006. 

Section 110(b)(2) increased the maximum civil penalty for extremely hazardous violations 

deemed “flagrant” by providing: 

Violations under this section that are deemed to be flagrant 

may be assessed a civil penalty of not more than $220,000. 

For purposes of the proceeding sentence the term “flagrant” 

with respect to a violation means a reckless or repeated 

failure to make reasonable efforts to eliminate a known 

violation of a mandatory health or safety standard that 

substantially and proximately caused, or reasonably 

could have been expected to cause, death or serious 

bodily injury. 

30 U.S.C. § 820(b)(2). 

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 violations of the same . . . safety standard have

 been cited within the past 15 months. 

Mot. For Consol. and Stay 4 (citing MSHA Procedure Instruction 

Letter No. 108-III-02 (“PIL”), “Procedures for Evaluating Flagrant 

Violations” 2). 

Asserting that it would be “necessary . . . to establish that Order No. 7101469 was 

properly issued and assessed as an unwarrantable failure violation under [section] 75.400 in 

order for the Secretary to satisfy the fourth criterion for a repeated failure flagrant classification 

of Order No. 6605922,” the Secretary requested the consolidated cases be held in abeyance until 

Judge Feldman ruled on the validity of Order No. 7101469. Mot. For Consol. and Stay 4. 

On April 26, 2010, and over the objection of Wolf Run, the court granted the Secretary’s 

motion but allowed discovery to continue. The court stated, “It makes no sense to hear evidence 

on the issue of whether the alleged violation of section 75.400 in Order No. 6605922 is ‘flagrant’ 

before knowing whether the question is actually at issue.” Consolidation of Proceedings 1. 

Subsequently, the Secretary and Wolf Run reached a settlement in which they in part agreed that 

Order No. 7101469 was S&S and unwarrantable. As a result, the stay was lifted and the 

captioned cases were noticed for hearing. 

On March 11, 2011, the parties advised the court that the sole issue between them was 

whether Order No. 6605922 (Docket No. 2008-1265) was properly assessed as “flagrant” within 

the meaning of section 110(b)(2) of the Mine Act as amended by the MINER Act.2 Counsels 

proposed that the issue be resolved through motions for partial summary decision, and the 

parties filed the motions. 

THE MOTIONS 

WOLF RUN 

Wolf Run asserts that it was improper for the Secretary to assess the proposed penalty for 

the violation of section 75.400 alleged in Order No. 6605922 under the “flagrant violation” 

provision of the Mine Act. The company points to the fact that the Mine Act defines a “flagrant 

violation” as a “reckless or repeated failure to make reasonable efforts to eliminate a known 

violation of a mandatory health or safety standard that substantially and proximately caused or 

reasonably could have been expected to cause, death or serious bodily injury.” 30 U.S.C. 

§820(b)(1). The company notes that Order No. 6605922 does not allege that the violation of 

section 75.400 was the result of Wolf Run’s “reckless disregard.” Therefore, in determining that 

2

 The parties were able to reduce the issues to the legitimacy of the flagrant designation 

because they fully settled Docket No. 2009-420. As a result, the Secretary filed a motion to 

approve the settlement, which the court granted on April 21, 2011. 

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the violation was “flagrant” the Secretary relied on fact that the violation is the alleged result of 

Wolf Run’s “repeated failure to make reasonable efforts to eliminate a known violation of a 

mandatory health or safety standard” and her interpretation that a repeated violation includes a 

situation in which there have been, inter alia, “[a]t least two prior ‘unwarrantable failure’ 

violations of the same safety or health standard . . . cited within the past 15 months.” PIL No. 

106-III-04 and PIL NO. 108-III-02.3 Therefore, relying on the PILs, the Secretary is asserting 

that the violation alleged in Order No. 6605922 is “flagrant” based on the fact that there were 

two prior unwarrantable violations of section 75.400 in the past 15 months. Wolf Run Mot. For 

Part. Sum. Dec. 5. The problem with this, according to the company, is that the two alleged 

unwarrantable violations “were not based upon the same conditions as alleged in Order No. 

6605922.” Id. Thus, they were not “repeated” violations within the meaning of section 

110(b)(2). Id. 

The company also challenges the Secretary’s reliance on the criteria for establishing 

“flagrant” violations as set forth in its PILs. It asserts that the PILs were not promulgated 

properly pursuant to Section 101 of the Act and “cannot be the basis of a proposed assessment or 

otherwise utilized by the Secretary to support a “flagrant” designation.” Mot. For Part. Sum. 

Dec. 5. 

THE SECRETARY 

The Secretary counters that there are no genuine issues of material fact between the 

parties and that the facts establish that the violation of section 75.400 cited in Order No. 6605922 

(along with other violations of the standard) establish Wolf Run’s “repeated . . . failure to make 

reasonable efforts to eliminate a known violation of a mandatory safety or health standard 

that . . . reasonably could have been expected to cause, death or serious bodily injury.” Sec.’s 

Cross Mot. For Part. Sum Dec., citing 30 U.S.C. § Section 110(b)(2). The Secretary notes that 

on November 14, 2007, the inspector issued Order No. 6605922 to Wolf Run and the order cited 

the operator for “extensive accumulations of combustible loose coal, coal fines and float coal 

dust throughout the crosscuts and entries of the No. 1 . . . [s]ection of the Sentinel Mine.” Sec’s 

Mem. in Support of Her Cross Mot. 2. The Secretary states that the parties agree that the 

combustible material described in the order violated section 75.400. Id. 2, citing Sec.’s Stat’t of 

Mat. Facts (“SMF”) 4, 14. She also states that Wolf Run agrees that the violation resulted from 

the company’s high negligence and unwarrantable failure and that it was reasonably likely to 

cause permanently disabling injuries to 10 persons. Id., citing SMF 15-19. Finally, the Secretary 

asserts that Wolf Run agrees that the accumulations cited in Order No. 6605922 resulted from 

several shifts of neglect and that Wolf Run was on notice through previous conversations with 

MSHA that greater efforts were necessary for compliance. Id., citing SMF 9, 10. Therefore, 

3 The PILs have expired. PIL No. 106-III-04 expired on March 31, 2008 and PIL No. 

108-III-02 expired on March 31, 2010. Nonetheless, the Secretary continues to advocate the 

same criteria for determining “repeated failure” violations. See MSHA News Release 

(April 9, 2011). 

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“The only remaining issue is whether [the] violation [of section 75.400] meets the criteria to be 

assessed as a ‘flagrant violation’ pursuant to [s]ection 110(b(2) of the Mine Act.” Id. 3. In the 

Secretary’s view the “uncontested facts fully support a decision that the statutory criteria for a 

flagrant violation are satisfied.” Id. Therefore, Order No. 6605922 should be affirmed. Id. 

At the core of the Secretary’s “flagrant” assertion is her allegation that the violation of 

section 75.400 cited in Order No. 6605922 meets the “repeated failure” component of section 

110(b)(2). The Secretary details her disagreement with the operator’s interpretation of section 

110(b)(2). It does not, she maintains, require that a violation can only be deemed “flagrant” if 

the violation is predicated on a failure to correct a previously issued citation. Sec.’s Mem. in 

Support of Her Cross Mot. 4-5. In this regard, she notes Commission Judge Alan Paez’s 

statement in Stillhouse Mining, LLC, 33 FMSHRC 778 (March 2011), that “Given . . . Congress 

expressly omitted the requirement that section 110(b) involve a cited violation, the known 

violation at issue in a flagrant case need not have been previously cited by MSHA at the time the 

operator recklessly failed to eliminate it.” Sec’s Mem. In Support of her Cross Mot. 6, quoting 

33 FMSHRC at 897. The Secretary also asserts that Wolf Run “ had repeatedly encountered 

dangerous accumulations in the sections, crosscuts and entries of the . . .[coal] seam [that it was 

mining], and had repeatedly failed to remove them.” Id. Therefore, the violation cited in Order 

No. 6605922 may be assess as flagrant under Section 110(b)(2). Id. 

The Secretary further argues that her interpretation of section 110(b)(2) is entitled to 

deference under either a Chevron I or Chevron II analysis. Sec’s Mem. in Support of Her Cross 

Mot. 7-8. Moreover, she argues that she did not engage in improper rule-making via the PILs. 

Id. 

ANALYSIS 

Despite the numerous arguments, the issues are relatively simple. The matter is before 

the court because the Secretary has filed a petition seeking a civil penalty for an alleged violation 

of section 75.400. In general, under the statutory scheme, it is the Secretary who proposes the 

penalty, and if the Secretary establishes that a violation occurred, the judge is required to assess 

a penalty taking account of the civil penalty criteria of section 110(i) of the Act as well as any 

other applicable statutory penalty requirements or limitations. The judge’s assessment must be 

de novo and based on the facts established at trial or as otherwise agreed upon by the parties. 

Once findings on the statutory criteria have been made, a judge’s penalty assessment is an 

exercise of discretion. Sellersburg Stone Co., 5 FMSHRC 287, 292- 294 (May 1983); Canera 

Green, 22 FMSHRC 616, 620 (May 2000). Should the judge’s assessment substantially diverge 

from the penalty initially proposed by the Secretary, the Commission requires the judge to 

provide a sufficient explanation of the bases underlying his or her assessment. Sellersburg, 5 

FMSHRC at 293. 

In this case the Secretary has proposed the assessment of a civil penalty of $142,900 for a 

violation of section 75.400, a violation that according to the Secretary is “considered serious,” 

that “resulted from [Wolf Run’s] high degree of negligence” and that is “considered to be 

flagrant.” Narrative Findings for Special Assessment. The Secretary explains in her narrative 

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findings that she considers the violation to be flagrant because she believes it was the result of 

“a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a 

mandatory . . . safety standard that . . . reasonably could have been expected to cause, death or 

serious bodily injury.” Id. 

Given that the parties have filed cross motions for partial summary decision, the court 

must look at the agreed upon facts and conclude whether they establish the existence of the 

violation. If so, a penalty is required and the court must determine its proper amount. In 

determining the penalty amount, the court must make and apply findings regarding the statutory 

civil penalty criteria. Further, in view of the Secretary’s “flagrant” allegation, the court must 

determine whether the violation was in fact flagrant, as that word is defined in section 110(b)(2), 

that is whether as the Secretary asserts the violation was the result of “a reckless or repeated 

failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety 

standard that substantially or proximately caused, or reasonably could have been expected to 

cause, death or serious bodily injury.” 30 U.S.C. 820(b)(2). Put another way, the primary issue 

before the court is whether the agreed upon facts are adequate to allow the court to find that the 

alleged violation occurred and if so, whether the facts allow the court to assess the civil penalty 

sought by the Secretary.4 

Determining the existence of a violation and making findings regarding the relevant civil 

penalty criteria are exercises in which the court has engaged innumerable times. On the other 

hand, finding whether the violation was in fact flagrant as charged by the Secretary is an exercise 

new to the court and one that has been undertaken previously by few of the Commission’s 

judges. Although there is a paucity of precedent, the court has meaningful guidance. It is aware 

of both the decision of Commission Judge Alan Paez in Stillhouse Mining, LLC, 33 FMSHRC 

778 (March 2011), and the order of Commission Judge Jerold Feldman in Conshor Mining, LLC, 

34 FMSHRC __, Kent 2008-562, etc. (Nov. 28, 2011) (Order).5 In their rulings Judges Paez and 

Feldman parsed with care the language of the statutory definition of “flagrant,” examined the 

meaning of the definition’s words and tested the meaning within the context of the purpose of 

section 110(b)(2). Given their efforts the court sees no reason to reinvent the wheel, and the 

court will resolve the issues before it with an eye to the judges’ holdings. 

4

 The issue of how the Secretary determined to charge the company with a flagrant 

violation and thus propose a penalty of $142,900 for a single violation is not one that the court 

must consider. The question is not how the case reached the court, but whether given the facts as 

they stand at this point the Secretary has established that the violation of section 75.400 cited in 

Order No. 6605922 was in fact “flagrant” within the meaning of section 110(b)(2) of the Act. 

For this reason the court views as irrelevant the parties’ arguments regarding the legitimacy of 

the PILs. 

5

 Judge Feldman’s order has been certified to the Commission for interlocutory review. 

Conshor Mining, LLC. 34 FMSHRC_ (Certification of Interlocutory Ruling) (January 19, 

2012). 

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As the court has already noted, it views the primary issue before it as whether or not, 

given facts as they presently stand, it can find that the violation occurred, and if so, whether it 

can assess a civil penalty based on the statutory penalty criteria and the Secretary’s flagrant 

designation. Therefore, when ruling on the cross motions for partial summary decision, the court 

will first make a finding regarding the existence of the violation. Assuming it concludes that the 

facts establish the violation, the court will turn to the civil penalty criteria and to the Secretary’s 

S&S and unwarrantable allegations. Finally, the court will address whether the facts establish a 

flagrant violation. If the necessary predicate findings can be made, the court will then assess the 

penalty that it deems appropriate in view of the civil penalty criteria, the flagrant designation, 

and the deterrent purposes of the Act. 

THE VIOLATION 

The parties have stipulated to “the facts set forth in Section 8 of . . . Order 6605922.” 

Letter of Joanne Jarquin to The Court (March 16, 2011), Stip. 1. The court accepts the 

stipulation. Section 8 of the order states in part: 

Combustible material in the form of fine coal, 

loose coal, and float coal dust was deposited and 

allowed to accumulate on the mine floor of the [No.] 1, 

001-0 MMU section at the following locations[:] 1.) 

The [No.] 1 thru [No.] 8 connecting crosscuts and 

extending from the feeder to the working faces. These 

dry[,] black accumulations ranged from 6" to 19" deep, 

3-4 feet wide in the center of the entry and 1-2 feet along 

the rib lines. 2.) The [No.] 2 and [No.] 3 entries and connecting cross-cuts of the Left Intake from spad [No.] 724 

in [No.] 2 entry and inby spad [No.] 812 in [No.] 3 entry 

extending inby to the section feeder. These powder-dry 

reddish accumulations were from 3-4 feet wide in the 

center of the entry and were suspended into the air when 

traveling though this area and carried to the working 

face. 3.) [No.] 6 entry from spad [No.] 910 inby to 11 

block. These dry black accumulations measured up 

to 15 inches deep, extending 1-2 feet from each rib 

for the entire length of the entry. This section has 

entries and cross-cuts on 76' centers. The combined 

accumulations including connecting cross-cuts covers 

over 4,268 feet. 

Order No.6605922; 605922-01. 

As the parties agree, the conditions described in the order clearly violate section 75.400 

which requires in part that “[c]oal dust, including float coal dust . . . [and] loose coal . . . shall be 

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cleaned up and not be permitted to accumulate[.]” The violation existed as charged. 

THE CIVIL PENALTY CRITERIA 

Having found the violation, the court looks to the statutory civil penalty criteria. With 

regard to negligence, the parties have stipulated that the violation was due to Wolf Run’s “high” 

negligence. Letter of Joanne Jarquin to the Court (March 16, 2011), Stip 1. The court accepts 

the stipulation and finds that Wolf Run’s negligence was indeed high. 

With regard to gravity, they have stipulated that the violation was reasonably likely to 

result in permanently disabling injuries to 10 persons. Letter of Joanne Jarquin to the Court 

(March 16, 2011), Stip 1. The court accepts the stipulation and finds that the violation was 

indeed serious. 

The parties also have stipulated that the order in which the violation is alleged was 

“properly issued as a [s]ection 104(d)(2) S&S Order.” Letter of Joanne Jarquin to the Court 

(March 16, 2011), Stip.1. The court interprets this as an agreement that the inspector’s S&S and 

unwarrantable failure findings are valid, and the court so finds.

 The parties have not stipulated to four of the civil penalty criteria. Rather, they have 

informed the court that they have “reached stipulations regarding the penalty amount that should 

be assessed . . . depending on the outcome of the motions for partial summary decision.” Letter 

Joanne Jarquin to the Court (March 16, 2011), Stip 3. While the parties are free to suggest a 

penalty they deem appropriate in light of the civil penalty criteria and the court’s resolution of 

the “flagrant” issue, it is the court that must ultimately determine the amount of the penalty. It 

cannot do so based on the parties’ motion for partial summary decision without the parties 

agreeing on the other civil penalty criteria. Therefore, the parties shall provide the court with 

stipulations regarding Wolf Run’s applicable history of previous violations, the size of Wolf 

Run, the effect of any penalty assessed on Wolf Run’s ability to continue in business, and the 

good faith of Wolf Run in attempting to rapidly abate the violation of section 75.400. 30 U.S.C. 

§820(I). When they do so they also may advise the court of the penalty they deem appropriate 

for the violation.6 

THE FLAGRANT NATURE OF THE VIOLATION 

The remaining issue before the court is whether Wolf Run’s violation of section 75.400 

was “flagrant.” As Judge Paez noted in Stillwater, based on the language of the statute, there are 

four elements that comprise a flagrant violation: 

6 If the parties are not able to stipulate as to these criteria, they should be prepared to 

present evidence on them at the hearing scheduled later in this order. 

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(1) Reckless or repeated failure to make reasonable efforts to 

 eliminate 

(2) A known violation of a mandatory health or safety 

standard 

(3) (a) That substantially or proximately caused or

 (b) Reasonably could have been expected to cause 

(4) Death or serious bodily injury. 

Stillhouse, 33 FMSHRC at 802. 

WOLF RUN’S REPEATED FAILURE 

The Secretary is not charging that the violation of section 75.400 was caused by Wolf 

Run’s recklessness. Rather, it is the company’s “repeated failure to make reasonable efforts to 

eliminate” violations of section 75.400 that is the basis for the Secretary’s “flagrant” designation. 

Sec’s Cross Mot. For Part. Sum. Dec. 13. The court concludes, however, that based on the 

record as it now stands the court is unable to determine the propriety of the Secretary’s 

designation. The problem is that the Secretary’s interpretation of “repeated failure” does not 

comport with the Act. As Judge Feldman pointed out, “A repeated flagrant violation requires 

both knowledge of the violation and a repeated failure to eliminate it.” Conshor Mining, LLC, at 

11. Giving the words of the statute a straightforward (and the court believes a proper) reading, 

Judge Feldman found that “the phrase ‘repeated failure’ when read in context refers to current 

repeated conduct evidenced by a failure to eliminate the hazard posed by the discrete violation 

alleged to be flagrant, rather than [by] a past history of violations.” Id. 12. The court agrees with 

Judge Feldman that “[r]elying on a violation history as a required element of a repeated flagrant 

violation . . . superimpose[s] an additional test that is not articulated in the statute.” Id. Judge 

Feldman reasoned that in enacting section 110(b)(2) of the Act, Congress focused on the 

consequences of a repeated failure to eliminate an extremely hazardous violation, rather than on 

a history of past violations as the basis for a flagrant designation. See e.g., Conshor at 13. Judge 

Feldman’s reasoning is sound and the court, whose duty it is to interpret section 110(b) (2) as 

written not as how the Secretary wishes it had been written, sees no reason to depart from it.7 

It is therefore the view of the court that to prove her “flagrant” allegation, the Secretary 

must not only establish that the violation of section 75.400 at issue could reasonably have been 

expected to cause death or seriously bodily harm (something which Wolf Run appears prepared 

7

 The court also fully agrees with Judge Feldman that “because the language of . . . 

section [110 (b)(2)] is unambiguous,” the Secretary’s interpretation of the section is not entitled 

to Chevron deference. Conshor (Certification) at 2. 

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to concede) but also that Wolf Run “repeated[ly] failed to make reasonable efforts to eliminate” 

[section 110(b)(2)] the “combustible material in the form of fine coal, loose coal, and float coal 

dust” cited in Order No. 6605922 that accumulated underground in the mine’s active workings. 

In other words, the Secretary must show that Wolf Run repeatedly failed to make reasonable 

efforts to eliminate the violation of section 75.400 charged in the order. 

Assuming the Secretary can establish that Wolf Run repeatedly failed to eliminate the 

violation of section 75.400 charged in the order, Wolf Run can rebut the “flagrant” allegation by 

established that although its efforts proved unsuccessful, they were reasonable. 

THE STIPULATIONS AND THE NECESSARY PROOF 

Having reviewed the cross motions, the stipulations and the parties other submissions, the 

court finds that the question of whether or not Wolf Run repeatedly failed to eliminate the 

particular violation of section 75.400 cited in the subject order cannot yet be answered. The 

issue is fact-intensive and testimony concerning the cited conditions and the commissions or 

omissions of Wolf Run will determine the result. 

For these reason, the cross motions for partial summary decision are DENIED. The 

parties are advised that the matter will be called for hearing on Tuesday, April 17, 2012, at 8:30 

a.m., in Charleston, West Virginia. Since the parties agree on the existence of the violation, its 

gravity, the negligence of Wolf Run in allowing the violation to exist, the violation’s S&S nature 

and Wolf Run’s unwarrantable failure, the parties will be expected to present evidence or an 

agreed upon stipulation regarding each of the civil penalty criteria for which no stipulation has 

yet been offered (applicable history of prior violations, size of business of Wolf Run, the effect 

of any penalty on Wolf Run’s ability to continue in business, the good faith of Wolf Run in 

attempting to achieve rapid compliance after the violation was cited). Further, to prove her 

allegation that the agreed upon violation of section 75.400 was “flagrant”, the Secretary should 

be prepared to present evidence regarding Wolf Run’s “repeated failure to make reasonable 

efforts to eliminate” the specific violation of section 75.400 cited in Order No. 605922. As 

Judge Paez stated, the court will then look at “all of the facts and circumstances surrounding the 

[cited] violation” and determine whether or not Wolf Run failed to “take the steps a reasonable 

prudent operator would have taken to eliminate the known violation of” section 75.400. 

Stillhouse Mining, 33 FMSHRC at 805. 

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The Secretary will also need to show that Wolf Run knew of the violation, and I agree 

with Judge Feldman that she can do so either thorough evidence showing Wolf Run’s actual 

knowledge or through evidence showing there were facts available to Wolf Run that would have 

provided a reasonable person with knowledge of the violation and its continued existence. 

Conshor Mining at 11. Finally, as Judge Feldman stated, Secretary must show that the cited 

violation of section 75.400 was “egregious,” that is was “outrageously bad.” Id. 12 (quoting The 

American Heritage Dictionary 667 (4th ed. 2009). For it’s part, Wolf Run will be at liberty to 

dispute such evidence and to offer its own evidence regarding its knowledge of the cited 

condition, its efforts to eliminate the condition and the violation’s allegedly egregious nature. 

/s/ David Barbour 

David Barbour 

Administrative Law Judge 

(202) 434-9953 

Distribution: (1st Class U.S. Mail) 

Linda Henry, Esq.; Joanne Jarquin, Esq., Department of Labor, Office of the Regional Solicitor, 

The Curtis Center, Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 1910 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

Ave., Pittsburgh, PA 152222 

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