AUGUST 2005 

COMMISSION DECISIONS AND ORDERS 

08-09-2005 Meridian Aggregates Company 

08-09-2005 O/N Minerals (St. Clair) Company 

08-09-2005 Borton, LC 

08-09-2005 Sequatchie Concrete Service 

08-09-2005 Holcim (US) Inc. 

08-09-2005 Mountain Edge Mining, Inc. 

08-11-2005 Northern Gravel Company, Inc. 

08-11-2005 Hubble Mining Company, ILC 

08-11-2005 Brooks Run Mining Co., ILC 

08-24-2005 Consol Pennsylvania Coal Co. 

08-26-2005 Maple Creek Mining, Inc., et al. 

ADMINISTRATIVE LAW .JUDGE DECISIONS 

08-11-2005 Genwal Resources, Inc. 

08-15-2005 James Carney Construction 

08-17-2005 Dewayne Herren 

08-19-2005 Original Sixteen to One Mine, Inc. 

i 

CENT 2005-184-M 

CENT 2005-185-M 

SE 2005-222-M 

SE 2005-247-M 

WEST 2005-376-M 

WEVA 2005-157 

CENT 2005-223-M 

VA 2005-17 

WEVA 2005-195 

PENN 2005-228 

PENN 2002-116 

WEST 2004-453 

WEST 2005-51-M 

WEST 2004-311-M 

WEST 2004-330-M 

Pg.521 

Pg.524 

Pg.528 

Pg.531 

Pg.534 

Pg.537 

Pg.541 

Pg.545 

Pg.548 

Pg.552 

Pg.555 

Pg.580 

Pg.595 

Pg.597 

Pg.600 

AUGUST 2005 

No cases were filed in which Review was granted during the month of August 

No cases were filed in which Review was denied during the month of August 

ii 

COMMISSION DEQSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

l\1ERIDIAN AGGREGATES 

COMPANY, ILP 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 9, 2005 

Docket No. CENT 2005-184-M 

A.C. No. 34-01285-45400 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On June 6, 2005, the Commission received from Meridian 

Aggregates Company, lLP ("Meridian") a motion made by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

In its motion, Meridian states that on approximately December 10, 2004, the Department 

of Labor's Mine Safety and Health Administration ("MSHA") issued to the company the 

proposed penalty assessment at issue. Mot. at 1. Meridian further states that, at the time MSHA 

sent the proposed penalty assessment to its Southwest Division Office, the individual who was 

responsible for ensuring that the proposed assessment would be forwarded to Meridian's district 

office for processing was on extended leave. As a result, the proposed assessment "was 

overlooked" and not received at the district office until January 21, 2005, six days after the date 

on which the proposed penalty had become a final order of the Commission. Id. at 1-2. The 

Secretary states that she does not oppose Meridian's request for relief. 

27 FMSHRC 521 
We have held that in appropriate circumstances, we p9ssess 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedare"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

Having reviewed Meridian's motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Meridian's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 522 
Distribution 

Karen L. Johnston, Esq. 

Jackson Kelly PILC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor · 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 523 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OIN MINERALS (ST. CLAIR) CO. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

· WASHINGTON, DC 20001 

August 9, 2005 

Docket No. CENT 2005-185-M 

A.C. No. 34-00282-47934 

Docket No. CENT 2005-186-M 

A.C. No. 34-00282-52828 

BEFORE: Duffy, Chainnan; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). 1 On June 8, 2005, the Commission received from OIN 

Minerals (St. Clair) Company ("O/N Minerals") motions made by counsel to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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 Co~ssion. 30 U.S.C. § 815(a). 

On January 13 and March 17, 2005, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued two proposed assessments to OIN Minerals. Mot. at Ex. A-B. 

In its motions, O/N Minerals states that the employee responsible for processing proposed 

penalty assessments for the company was "unaware of the proper contest procedures." Mot. at 

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

consolidate docket numbers CENT 2005-185-M and CENT 2005-186-M, both captioned O/N 

Minerals (St. Clair) Comp0:ny and both involving similar issues. 29 C.F.R. § 2700.12. 

27 FMSHRC 524 
Aff. The employee believed that the proposed assessments at issue did not reflect modifications 

agreed to in a conference with MSHA on the citations and orders listed, and assumed MSHA 

would reissue or revise the proposed assessments based on the modifications. Id. The employee 

thus did not file requests for hearing for either of the proposed assessments. Id. 

O/N Minerals further states that "it was always our intent to contest these proposed 

penalties." Id. The company requests to be excused from its failure to timely request a hearing, 

which it claims was due to its mistake and inadvertence. Mot. at 1. The Secretary states that she 

does not oppose O/N Minerals' requests for relief. 

We have held 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

27 FMSHRC 525 
Having reviewed O/N Minerals' motions, in the interests of justice, we remand these 

matters to the Chief Administrative Law Judge for a determination of whether good cause exists 

for O/N Minerals' failure to timely contest the penalty proposals and whether relief from the final 

orders should be granted. If it is determined that such relief is appropriate, these cases shall 

proceed pursuant to the Mine Act and the Com.mission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 526 
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., 22m1 Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 527 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

BORTON LC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 9, 2005 

Docket No. SE 2005-222-M 

A.C. No. 39-00014-40619 (A129) 

BEFORE: Duffy, Chairman; Jordan, Subolesk.i, and Young, 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. (2000) ("Mine Act"). On May 13, 2005, the Commission received from Borton LC 

("Borton") a motion made by counsel to reopen a penalty assessment that had become a final 

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

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

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

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

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

On October 15, 2004, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued to Borton the proposed penalty assessment that is at issue. Supp. Mot. Ex. In 

its motion, Borton states that it never received the proposed assessment, and learned of it 

inadvertently when, during April 2005, the company's safety director discovered it listed on 

MSHA's web site. Mot. at 1-2. Although Borton subsequently attempted to contest the 

proposed assessment, Supp. Mot., the Commission has determined that MSHA considers the 

contest untimely. The Secretary states that she does not oppose Borton's request for relief. 

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

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

27 FMSHRC 528 
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

Having reviewed Borton's motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Borton' s 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

27 FMSHRC 529 
Distribution 

Marcus P. McGraw, Esq. 

Greenebaum, Doll & McDonald, PI.LC 

300 West Vine Street, Suite 1100 

Lexington, KY 40507 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 530 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AO:MINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

August 9, 2005 

Docket No. SE 2005-247-M 

A.C. No. 40-02981-44539 

SEQUATCHIB CONCRETE SERVICE 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On July l, 2005, the Com.mission received from Sequatchie 

Concrete Service ("Sequatchie") a letter requesting that the Commission reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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). 

On December 2, 2004, the Department of Labor's Mine Safety and Health Adminisμ-ation 

("MSHA") issued to Sequatchie the proposed penalty assessment at issue. In its letter, 

Sequatchie states that although it attempted to contest the proposed penalty assessment, the 

contest "was received too late" by MSHA. According to Sequatchie, the contest was late 

because of "a communication breakdown in that the information was sent directly to the mine 

instead of our corporate office." The Secretary states that she does not oppose Sequatchie's 

request for relief. 

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

27 FMSHRC 531 
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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

Having reviewed Sequatchie's letter, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Sequatchie's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 532 
Distribution 

Jamie Steinmeyer, Safety Director 

Sequatchie Concrete Service 

P.O. Box 129 

South Pittsburgh, TN 37380 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 533 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HOLCIM (US) INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 9, 2005 

Docket No. WEST 2005-376-M 

A.C. No. 05-00037-54124 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On June 20, 2005, the Commission received from Holcim 

(US) Inc. ("Holcim") a motion made by counsel to reopen a penalty assessment that had become 

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

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

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

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

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

In its motion, Holcim states that on approximately April 15, 2005, the Department of 

Labor's Mine Safety and Health Administration ("MSHA") issued a proposed penalty assessment 

to Holcim for three orders issued to the company by MSHA between September 2004 and 

January 2005. Mot. at 1-3. Holcim had already timely contested all three orders, which are the 

subject of Docket Nos. WEST 2005-182-RM, WEST 2005-183-RM, and WEST 2005-49-RM. 

Id. These proceedings are currently stayed before Commission Administrative Law Judge 

Richard Manning. Id. Holcim states that the proposed penalty assessment for the three orders 

was not delivered to its current safety director but was instead sent to and received by a former 

safety director, who did not act upon it in a timely fashion. Id. at 3. The Secretary states that she 

does not oppose Holcim' s request for relief. 

27 FMSHRC 534 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission ~rders 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

Having reviewed Holcim's motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Holcim' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the.Commission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 535 
Distribution 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 536 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 9, 2005 

Docket No. WEVA 2005-157 

A.C. No. 46-08913-46657 

Docket No. WEVA 2005-158 

A.C. No. 46-08913-50525 

MOUNT A1N EDGE .'MINING, IN~. 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). 1 On June 22, 2005, the Commission received from Mountain 

Edge Mining, Inc. ("Mountain Edge") a letter requesting that the Commission 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). 

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). 

On December 28, 2004 and February 17, 2005, the Department of Labor's Mine Safety 

and Health Administration ("MSHA") issued to Mountain Edge the two proposed penalty 

assessments at issue. In its letter, Mountain Edge states that along with partial payments for the 

proposed penalties, the company thought it had included forms indicating it wished to contest 

several citations and orders included in the proposed assessments. The company has been 

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

consolidate docket numbers WEST 2005-157 and WEST 2005-158, both captioned Mountain 

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

27 FMSHRC 537 
informed by MSHA however, that the agency never received the contest forms. The Secretary 

states that she does not oppose Mountain Edge's request for relief. 

We have held 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

27 FMSHRC 538 
Having reviewed Mountain Edge's letter, in the interests of justice, we remand these 

matters to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Mountain Edge's failure to timely contest the ·penalty proposals and whether relief from the 

final orders should be granted. If it is determined that such relief is appropriate, these cases shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

~~ Michael~, Chainnal1 

27 FMSHRC 539 
Distribution 

Douglas M. Epling, President 

Mountain Edge Mining, Inc. 

P.O. Box 2226 

Beckley, WV 25802 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 540 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRA TION (MSHA) 

v. 

. 601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 11, 2005 

Docket No. CENT 2005-223-M 

A.C. No. 13-00733-46541 

Docket No. CENT 2005-224-M 

A.C. No. 13-00733-41258 

NORTHERN GRAVEL COMPANY, INC. 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act").1 On July 19, 2005, the Commission received from Northern 

Gravel Company, Inc. ("Northern Gravel") motions made by counsel to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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). 

In its motions, Northern Gravel states that during August 2004, the Department of 

Labor's Mine Safety and Health Administration ("MSHA") issued to the company several 

citations and orders. Mot. at 2. Northern Gravel further states that when penalties were proposed 

for the citations and orders, the company was not represented by counsel and it failed to contest 

the penalties because it was not familiar with the procedures for contesting penalties under the 

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

consolidate docket numbers CENT 2005-223-M and CENT 2005-224-M, both captioned 

Northern Gravel Company, Inc. and both involving similar issues. 29 C.F.R. § 2700.12. 

27 FMSHRC 541 
Mine Act and the Commission's Procedural Rules. Id. The Secretary states that she does not 

oppose Northern Gravel's requests for relief. 

We have held 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

27 FMSHRC 542 
Having reviewed Northern Gravel's motions, in the interests of justice, we remand these 

matters to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Northern Gravel's failure to timely contest the penalty proposals and whether relief from the 

final orders should be granted. If it is determined that such relief is appropriate~ these cases shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 543 
Distribution 

John A. Kyhl, Esq. 

Stanley, Lande & Hunter 

900 U.S. Bank Center 

20 l West Second 

Davenport, IA 52801 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 544 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW · 

SUITE9500 

WASHINGTON, DC 20001 

August 11, 2005 

Docket No. VA 2005-17 

A.C. No. 44-07048-48293 

HUBBIB :MINING COMPANY, LLC 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On April 28, 2005, Chief Administrative Law Judge Robert 

J. Lesnick issued a show cause order to Hubble Mining Company, LLC ("Hubble") stating that it 

had failed to file an answer to a petition for penalty assessment sent to it by the Secretary of 

Labor on March 17, 2005, and that Hubble would be found in default if it did not file an answer 

or show good cause for not doing so within 30 days of the order. On June 20, 2005, Chief Judge 

Lesnick issued an order finding that Hubble had failed to respond to the show cause order and 

entering a judgment by default for the Secretary of Labor. 

On July 21, 2005, the Commission received from Hubble a motion made by counsel 

seeking review of Chief Judge Lesnick's default order. In its motion, Hubble states that before 

Chief Judge Lesnick entered the default judgment, the company was not represented by counsel. 

Mot. at 2. The company official handling the matter mistakenly believed that a conference held 

with MSHA on the citation underlying the proposed penalty at issue was "a hearing on the 

merits," and that he was "not required to further participate in the penalty proceedings." Id. The 

Secretary states that she does not oppose Hubble's motion. 

The judge's jurisdiction in this matter terminated when his decision was issued on June 

20, 2005. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules, 

relief from a judge's decision may be sought by filing a petition for discretionary review within 

30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does 

not direct review within 40 days of a decision'_s issuance, it becomes a final decision of the 

27 FMSHRC 545 
Commission. 30 U.S.C. § 823(d)(l). The judge's order became a final decision of the 

Commission on August l, 2005. 

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 Com.mission on the basis of inadvertence or mistake. See 29 

C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May 

1993). We have also observed that default is a harsh remedy and that, if the defaulting party can 

make a showing of good cause for a failure to timely respond, the case may be reopened and 

appropriate proceedings on the merits pennitted. See Coal Prep. Ser-vs., Inc., 17 FMSHRC 1529, 

1530 (Sept. 1995). 

Having reviewed Hubble's motion, in the interests of justice, we hereby remand this 

matter to the Chief Administrative Law Judge for a detennination of whether good cause exists 

to excuse Hubble's failure to respond to the show cause order, and for further proceedings as 

appropriate. 

27 FMSHRC 546 
Distribution 

Mickey T. Webster, Esq. 

Wyatt, Tarrant & Combs, ILP 

250 West Main Street, Suite 1600 

Lexington, KY 40507 

W. Christian Schumann, Esq. 

Office of the Solicitor · 

U.S. Department of Labor 

llOO Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 547 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

l\1INE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 11, 2005 

Docket No. WEV A 2005-195 

A.C. No. 46-06045-000059820 

BROOKS RUN MINING CO., LLC 

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

ORDER 

BY THE CO:Ml\1ISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On July 25, 2005, the Commission received from Brooks 

Run Mining Company, LLC ("Brooks Run") a motion made by counsel to reopen a penalty 

assessment that had become a final order of the Com.mission 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). 

In its motion, Brooks Run states that on June 17, 2005, the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued a proposed penalty assessment to Brooks 

Run for three citations issued to the company by MSHA on January 27, 2005. Mot. at 1-2. 

Brooks Run had already timely contested all three citations, which are the subject of Docket Nos. 

WEVA 2005-77-R, WEVA 2005-78-R, and WEVA 2005-79-R. Id. at 2. These proceedings are 

currently before Commission Administrative Law Judge David Barbour and are scheduled for 

hearing on September 7, 2005. Id. 

Brooks Run states that it mailed a contest of the proposed penalty assessment at issue on 

27 FMSHRC 548 
July 21, 2005,1 but was informed by MSHA's Assessment Office that a timely contest had to be 

filed "withi,n 30 days of the date of the proposed assessment, June 17, 2005." Id. To the 

contrary, section 105(a) of the Mine Act states that an operator may file a contest "within 30 days 

from the receipt of the notification" of a proposed penalty. 30 U.S.C. § 815(a). Here, however, 

Brooks Run provides no information on when it received MSHA's proposed penalty assessment, 

and we are thus unable to determine whether Brooks Run ·is, in fact, in default. The Secretary 

states that she does not ~ppose Brooks Run' s request for relief. 

We have held 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

1 Brooks Run states it did not file a contest earlier because of "the occurrence of a 

. vacation period." Mot. at 2. 

27 FMSHRC 549 
Having reviewed Brooks Run' s motion, in the interests of justice, we remand this matter 

to the Chief Administrative Law Judge for a determination of whether Brooks Run is, in fact, in 

default, and if so, whether good cause exists for Brooks Run's failure to timely contest the 

penalty proposal and whether relief from the final order should be granted. If it is determined 

that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the 

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

M L~dan, conJ.VsSiOllef 

27 FMSHRC 550 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 551 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 24, 2005 

Docket No. PENN 2005-228 

A.C. No. 36-07230-41768 

CONSOL PENNSYLVANIA COAL CO. 

BEFORE: Duffy, Chainnan; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On August 2, 2005, the Commission received from Consol 

Pennsylvania Coal Co. ("Consol") a motion made by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

In its motion, Consol states that on November 4, 2004, the Department of Labor's Mine 

Safety and Health Administration ("MSHA") "apparently" issued to the company the proposed 

penalty assessment at issue. Mot. at 1. The company states, however, that it tias no record of 

receiving the proposed assessment until it obtained a copy on July 15, 2005, though it also states 

that it "intended to contest the penalties and underlying citations." Id. at 1-2. Although the 

Secretary states that she does not oppose Consol's request for relief, she notes that MSHA' s 

records include a signed return receipt for the proposed assessment dated November 13, 2004. 

We have held 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, 7~6-89 (May 1993) ("JWR"). In evaluating requests to 

27 FMSHRC 552 
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 inadvertence or mistake. See 29 C.F .R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

Having reviewed Consol's motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Consol's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

27 FMSHRC 553 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Gateway Center, Suite 1340 

401 Liberty Ave. 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

27 FMSHRC 554 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRA TION (MSHA) and 

August 26, 2005 

UNITED MINE WORKERS OF 

AMERICA, LOCAL 1248, DISTRICT 2, 

SUBDISTRICT 5 

v. 

MAPLE CREEK :MINING, INC., 

STEVE BROWN, employed by 

MAPLE CREEK MINING, INC., 

AL VY WALKER, employed by 

MAPLE CREEK MINING, INC., and 

GREG ~LER, employed by 

MAPLE CREEK MINING, INC. 

Docket Nos. PENN 2002-116 

PENN 2003-54 

PENN 2003-55 

· PENN 2003-56 

BEF~RE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners 

DECISION 

BY: Duffy, Chairman, and Young, Commissioner 

In these consolidated civil penalty proceedings arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act" ), Administrative Law 

Judge Jacqueline Bulluck affirmed an order issued by the Department of Labor's Mine Safety 

and Health Administration ("MSHA") to Maple Creek Mining, Inc. ("Maple Creek"), alleging a 

significant and substantial ("S&S") violation of 30 C.F.R. § 75.380(d)(l), which requires that 

each designated escapeway in an underground coal mine "be maintained to always assure passage 

27 FMSHRC 555 
of anyone, including disabled persons." 26 fMSHRC 539, 543-48 (June 2004) (ALT). The 

judge further found that the violation was due to the operator's unwarrantable failure and that 

Maple Creek employees Steve Brown, Alvy Walker, and Greg Miller were also liable for the 

violation under section llO(c) of the Mine Act, 30 U.S.C. § 820(c). 26 FMSHRC at 548-53. 

Maple Creek and the three employees jointly filed a petition for discretionary review of the 

judge's decision, which the Commission granted. For the reasons that follow, we affirm in part 

and reverse in part. 

I. 

Factual and Procedural Background 

Maple Creek owns and operates the Maple Creek Mine, an underground bituminous coal 

mine in Washington County, Pennsylvania. 26 FMSHRC at 541. Undulations in the coal seam 

and the steady infiltration of water by percolation through the mine floor and seepage from the 

coal seam and the mine roof cause accumulations of water at low points in the mine's entries. 

These conditions are such that between 1.2 and 2 million gallons of water are pumped from the 

mine daily. Id. 

In the 4 West section of the mine, the track entry, ventilated with intake air, was the 

primary escapeway. Id.; MCM Bxs. 1 & 2. The adjacent travelway, ventilated with return air, 

was designated as a secondary escapeway. 26 FMSHRC at 541; Tr. 385. In late July and early 

August 2001, the track in the primary escapeway ended at crosscut 15 or 16. 26 FMSHRC at 

541. Scoops delivered supplies from there to the working face, which was at or near crosscut 30. 

Id. 

On July 30, 2001, Mine Inspector Dennis Walker of the Pennsylvania Department of 

Environmental Protection's Bureau of Deep Mine Safety conducted a regular state quarterly 

inspection of the mine. Id. at 542; Tr. 32-33. He issued a state compliance order for water 

accumulation in the 4 West section to midnight shift section foreman Greg Miller. 26 FMSHRC 

at 542, 546. The compliance order stated that between crosscuts 24 and 25, in an area 40 to 50 

feet in length, there was water 12 inches deep from rib to rib that created slippery walking 

conditions. Id. at 542; Gov't Ex. 1 at 1. The order required that Maple Creek remove the water 

or pump it to a reasonable depth by 8:00 a.m. the next day, July 31. 26 FMSHRC at 542; Gov't 

Ex. 1 at I. Dennis Walker did not return to the mine in the following days, but was told a few 

days later by Steve Brown, the 4 West section coordinator who had accompanied him on at least 

part of the inspection, that the water had been removed by pumping. 26 FMSHRC at 542; Tr. 58; 

Gov'tEx. 2. 

On August 9, 2001, MSHA Inspector James Dickey was at the mine to conduct a regular 

Triple-A inspection. 26 FMSHRC at 542. He was still above ground when he came upon 

MSHA Inspector George Rantovich in a discussion with miners Thomas Sutton and Jim 

Constable, UMW A safety committeemen at Maple Creek. Id.; Gov't Ex. 3. They were 

27 FMSHRC 556 
discussing water in the mine. 26 FMSHRC at 542. Sutton told the inspectors that the water 

problem had existed for some time, that it was not being recorded consistently in the preshift 

examination book, and that nothing was being done about it. Id.; Gov't Ex. 3. Dickey thereafter 

reviewed the preshift (Gov't Ex. 8) and onshift record books for the 4 West section back to at 

least July 31, 2001. 26 FMSHRC at 542. 

While traveling through the section, Dickey encountered an accumulation of water that he 

considered extensive, deep, "mucky," and very difficult to walk in. Id. Dickey informed the two 

men accompanying him, day shift assistant general mine foreman Paul Henry and miner Robert 

Maust, that he would be issuing a withdrawal order pursuant to section 104(d) of the Mine Act, 

30 U.S.C. § 814(d). 26 FMSHRC at 542. Dickey later issued such a withdrawal order, 1 charging 

a violation of 30 C.F.R. § 75.380(d)(l). 26 FMSHRC at 542. To abate the violation, Maple 

Creek built a 6-foot-wide bridge over the entire length of the accumulation, and the order was 

tenninated early the following morning. 26 FMSHRC at 543; Gov't Ex. 9 at 3. 

A hearing was held on the order, at which the United Mine Workers of America, Local 

1248, District 2, Subdistrict 5 ("UMW A"), participated as an intervenor. 26 FMSHRC at 540. 

In her decision following the hearing, the judge concluded that the primary escapeway on the 4 

West section was not maintained in a safe condition that would permit passage of all persons, 

and therefore that Maple Creek had violated section 75.380(d)(l). Id. at 547. The judge also 

found the violation was S&S, because a hazardous condition resulted from the violation and 

because there was a reasonable likelihood that it would result in injuries of a reasonably serious 

nature. Id. at 548. Based on her finding that Maple Creek's actions with respect to the hazardous 

escapeway conditions reflected indifference and a serious lack of reasonable care, the judge also 

concluded that the violation was attributable to Maple Creek's unwarrantable failure. Id. at 548-

51. The judge also found that Brown, Alvy Walker, and Miller were each liable under section 

1 IO(c) for the section 75.380(d)(l) violation. Id. at 551-53. 

II. 

Disposition 

Maple Creek contends that the evidence establishes that the area of the escapeway at issue 

was passable, both with respect to the miners who would walk it and those who might need to 

carry a disabled miner on a stretcher. MCM Br. at 10. The operator asserts that the conditions in 

the escapeway, when viewed properly in context, were not as poor as the judge's decision makes 

them appear, so that the judge's finding of violation is unsupported by substantial evidence in the 

1 Maple Creek was already on the ''D chain" as a result of an unchallenged citation and 

order from 6 weeks prior. 26 FMSHRC at 543 n.3. The "D chain" refers to the increasingly 

severe sanctions provided by section 104(d) of the Mine Act, 30 U.S.C. § 814(d), which are 

intended to serve as an incentive for operator compliance. See Nacco Mining Co., 9 FMSHRC 

1541, 1545-46 (Sep. 1987); Cyprus Cumberland Res. Corp., 21FMSHRC722, 725 (July 1999). 

27 FMSHRC 557 
record. Id. at 11. Maple Creek also argues that, because the condition of the escapeway did not 

rise to the level of a hazard and it was unlikely that it would c·ontribute to a serious injury, the 

judge's S&S determination should be reversed. Id. at 12. Maple Creek further maintains that the 

judge's unwarrantable failure finding is not supported by substantial evidence, and that the 

evidence shows that Maple Creek was actively maintaining its escapeways by, among other 

things, diligently working on pumping water from the area in question. Id. at 13. Maple Creek 

also contends that the section l lO(c) charges filed against its three employees are arbitrary and an 

abuse of agency discretion in light of the agency's decision not to file a section llO(c) case 

against the mine foreman. Id. at 16. Maple Creek concludes that, in any event, substantial 

evidence does not support the judge's finding of liability for any of the three men because all of 

them had been actively involved in the operator's extensive efforts to address the water 

accumulation in the escapeway. Id. at 15. 

In response, the Secretary urges affirmance of the finding of violation, citing evidence she 

maintains supports the judge's detennination that the escapeway was not safe for persons during 

an emergency evacuation of the mine. S. Br. at 15-20." The Secretary also submits that the 

judge's finding that the violation was S&S is supported by substantial evidence. Id. at 21-23. 

The Secretary argues that Maple Creek does not dispute many of the findings the judge made in 

support of the unwarrantable failure conclusion, that those findings support the unwarrantable 

failure determination, and that the Commission should affirm the judge's finding that Maple 

Creek's efforts to abate the condition of the escapeway were "woefully ineffective." Id. at 23-30. 

Intervenor UMW A agrees with the Secretary, asserting that it is not enough for an operator to 

engage in some action related to a mine hazard, but rather an operator's actions must be effective. 

UMW A Br. at 5-6. The Secretary maintains that her decision not to file section llO(c) charges 

against the mine foreman is unreviewable, and that the judge's section 110( c) findings are all 

supported by substantial evidence. S. Br. at 31-35. 

All four Commissioners affirm the judge's findings that Maple Creek violated section 

75.380(d)(l) and that the violation was S&S. Chairman Duffy and Commissioner Young, joined 

by Commissioner Jordan, also affirm the judge's findings that the violation was unwarrantable 

and that Steve Brown is individually liable for the violation under section l lO(c). Chairman 

Duffy and Commissioner Young, joined by Commissioner Suboleski, reverse the judge's 

findings that Alvy Walker and Greg Miller are individually liable for the violation under section 

llO(c). 

A. Violation 

Section 75.380 requires that underground coal mine operators designate "at least two 

separate and distinct travelable passageways" as escapeways, that "[ e ]scapeways shall be 

provided from each working section," and that "[e]ach escapeway shall be . .. [m]aintained in a 

safe condition to always assure passage of anyone, including disabled persons." 30 C.F.R. 

27 FMSHRC 558 
§ 75.380(a), (b)(l) & (d)(l).2 The judge determined that the escapeway here failed to meet the 

standard because from the time the state compliance order was issued until the issuance of the 

withdrawal order by Inspector Dickey, work crews were routinely forced to use the narrow 

walkway or "cow path" along the right rib in order to avoid the 6 to 17-inch-deep muck that had 

accumulated in the escapeway between crosscuts 24 and 27. 26 FMSHRC at 547. The judge 

found that the conditions created a slip and fall hazard that precluded swift passage through that 

portion of the escapeway. Id. She further found that a team of miners carrying a stretcher would 

have to negotiate the slippery rutted bottom of the center of the escapeway, thus endangering the 

safety of those carrying the' stretcher and delaying medical attention to the injured miner. Id. 

When reviewing an administrative law judge's factual determinations, the Commission is 

bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(l). ''Substantial evidence" means '"such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Under the substantial evidence 

test, the Commission may not "substitute a competing view of the facts for the view [an] ALT 

reasonably reached." Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. 

Cir. 1983). 

The judge's finding of violation here is supported by substantial evidence. Prior to trial, 

the parties by stipulation established the conditions of the escapeway to a significant extent. 

They agreed that, on the day the withdrawal order issued, water was present in the intake 

escapeway of the 4 West section in varied depths and extended for approximately 420 feet. 26 

FMSHRC at 541. Moreover, Maple Creek's assistant mine foreman Henry conceded that, as a 

result of equipment tramming through the fire clay bottom, the water/clay mixture soon became 

dark, thick, soupy "mud and slop" that at some points extended from rib to rib. Tr. 747, 770-71, 

776. 

Maple Creek takes issue with the measurements taken by Inspector Dickey that persuaded 

the judge to find that the water was as much as 17 inches deep. See 26 FMSHRC at 547. Stating 

that the deeper measurements were taken in ruts created by the passage of scoops delivering 

supplies to the face, the operator argues that the depth of the water should be considered in the 

context of the mine area, where the roof was over 9 feet high. MCM Br. at 11. While Maple 

Creek is correct regarding the method of measurement, that does not necessarily detract from the 

judge's finding that there was a hazard. In the words of section foreman Alvy Walker, the water 

2 Section 75.380 was originally derived from section 317(f) of the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) ("Coal Act"), which was carried 

over without change to the Mine Act, 30 U.S.C. § ·877(f)(l). 

27 FMSHRC 559 
had "slurried up" (Tr. 659-60), and the mine floor and the drop-offs could not be seen by the 

miners, who could suddenly step off from an area of 6-inch water into 12 to 17 inches of water. 

Tr. 126. Moreover, there was testimony that the floor beneath the mud was littered with coal that 

had sloughed off the ribs. · Tr. 158-59. The ample headroom provided by the high roof thus did 

little to mitigate the hazards on the floor which unnecessarily impaired the utility and safety of 

the escapeway. 

Maple Creek also cites the ability of its miners to make it through the area to and from 

their work places each day as evidence that the escapeway was passable and, thus, in compliance 

with the regulation. MCM Br. at 10. In so doing, Maple Creek ignores the fact that at those 

times the miners were not using the route as an escapeway to evacuate the mine. During an 

emergency evacuation, miners would likely need to move expeditiously through the area in order 

to seek safe passage away from what could be a dangerous underground environment. See 61 

Fed. Reg. 9764, 9810 (Mar. 11, 1996) (preamble to section 75.380).3 Assistant mine foreman 

Henry admitted that the condition of the escapeway would slow the evacuation of miners, as they 

would have to be more cautious in the area. Tr. 788. 

Of particular importance in determining whether an escapeway is adequate under section 

75.380 is the ability of miners to transport an injured miner on a stretcher through it. Maple 

Creek does not take issue with the judge's finding that the cow path was too narrow to 

accommodate a team with a stretcher (26 FMSHRC at 547), but instead argues that it presented 

sufficient evidence to establish that a stretcher carrying an injured miner could have passed 

through the area off of the cow path, and that there was an alternate escapeway available in any 

event. MCM Br. at 10. The evidence to which Maple Creek refers is the testimony of Brown 

and Alvy Walker. Id. Brown testified that he could have carried a stretcher through the area, but 

went on to state that he would have used the alternate escapeway. Tr. 497. Alvy Walker testified 

that two miners could have walked ahead of the stretcher team to show them where the holes in 

the floor were located. Tr. 661. 

That testimony does not support the notion that the requirements of section 75.380(d)(l) 

were being met with respect to safe passage by a stretcher team. Alvy Walker would have 

required two additional miners to remain behind with the stretcher team, thus delaying their exit 

from the mine. The judge properly rejected this idea when she stated that "miners [should] not 

be confronted with risking life and limb to come to the aid of each other." See 26 FMSHRC at 

547. 

3 Moreover, Maple Creek's reference to the daily passage of miners through the 

escapeway is not to their use of the escapeway through the water, but rather to the narrow cow 

path walkway along its right rib, which at points was as narrow as 12 inches. 26 FMSHRC at 

541; MCM Br. at 10; Tr. 620-21. Reliance on suc.h a narrow route to serve as an escapeway 

clearly runs counter to the requirement of section 75.380(d)(4) that escapeways be maintained at 

a width of 6 feet, except in circumstances not applicable here. 

27 FMSHRC 560 
We also reject Maple Creek's suggestion that the judge erred in ignoring the existence of 

an alternate escapeway. The regulation is clear that the maintenance requirement of section 

.75.380( d)(l) applies to "each" escapeway. More than one escapeway is required, not in 

recogllition that conditions routine to the mine might prevent use of one of the escapeways, but 

rather because the emergency condition that causes the need to evacuate the mine may prevent 

use of one of the escapeways. The Senate Committee which was responsible for drafting the 

Coal Act explained the two-escapeway requirement in the following manner: 

Mine fires, extensive collapse of roof, or similar occurrences may 

completely block the regular travelway between the working section and the 

surface, thus cutting off escape in an emergency unless an alternate route is 

provided to the surface. As recently as March 1968, 21 men at a salt mine lost 

their lives because a travelable second escapeway was not provided. 

S. Rep. No. 91-411, at 83 (1969), reprinted in Senate Subcomm. on Labor, Comm. on 

Labor and Public Welfare, 94th Cong., Part I Legislative History of the Federal Coal Mine 

Health and Safety Act of 1969, at 209 ( 197 5). 

Lastly, Maple Creek contends that the judge improperly rejected its contention that a 

scoop could have been used to transport an injured miner through the water. MCM Br. at 10. 

Maple Creek's evidence consisted of the testimony of Brown, Alvy Walker, Miller, and Maust. 

The judge credited the testimony of Inspector Dickey over those witnesses on the issue of 

whether using a scoop would be a safe method of transportation. 26 FMSHRC at 547. A judge's 

credibility determinations are entitled to great weight and may not be overturned lightly. Farmer 

v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 

FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized that, because the judge "has 

an opportunity to hear the testimony and view the witnesses[,] he [or she] is ordinarily in the best 

position to make a credibility determination." In re: Contests of Respirable Dust Sample 

Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 

F.2d 713, 719 (I Ith Cir. 1984)), aff'd sub nom. Secretary of Labor v. Keystone Coal Mining 

Corp., 151F.3d1096 (D.C. Cir. 1998). 

We see no basis to overturn the judge's credibility determination. The witnesses cited by 

Maple Creek testified that a scoop was an available means of transport through the escapeway, 

but they did not address how safely an injured person can be carried in one. Tr. 127, 507, 630, 

671. In contrast, both Dickey and miner John Baluh testified about the further harm that 

traveling in a scoop could cause to an injured miner. Tr. 216, 302-04. 

In summary, substantial evidence supports the judge's determination that Maple Creek 

violated section 75.380(d)(l). 

27 FMSHRC 561 
B. S&S 

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 Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard - that is, a 

measure of danger to safety - contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; 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. 

1995); Austin Power, Inc. v. Secretary of La.bar, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 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, 2012-13 (December 1987). An evaluation of 

the reasonable likelihood of injury should be made assuming continued normal mining 

operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

Maple Creek contends that the conditions at issue here did not rise to the level of a 

hazard, and thus takes issue with the judge's finding that the section 75.380(d)(l) violation 

satisfied the second Mathies element. MCM Br. at 12. The judge based her hazard findings in 

part on the testimony of the miners who walked through the area each day. 26 FMSHRC at 548. 

There was extensive testimony that if they chose to pass through the water, miners were subject 

to slippery walking conditions, given the uneven bottom obscured by the muddy water. Id. at 

545; Tr. 202. Inspector Dickey stepped into several holes while walking through the center of 

the escapeway and, when he did so, the water level was over the top of his 15-inch boots. 26 

FMSHRC at 544. The coal that had sloughed off the ribs and was concealed on the floor posed 

an added tripping risk. Id. at 545; Tr. 158-59.4 

4 While the cow path may have provided an arguably safer route than the remainder of 

the escapeway, it was not without its own hazards. Miner Maust testified that caution was 

necessary because a person walking on the cow path could slip from it into the water and the 

holes in the bottom. 26 FMSHRC at 544; Tr. 103. 

27 FMSHRC 562 
In arguing that the condition was not hazardous, Maple· Creek essentially ignores the 

judge's finding attributing the injuries suffered by roof bolter John Gargala to the condition of 

the escapeway. See 26 FMSHRC at 548. On the shift immediately preceding the shift during 

which Dickey issued the withdrawal order, Gargala had slipped and fallen while walking on the 

cow path, spraining his wrist and straining his back. Id.; Tr. 138-42; Gov't Ex. 16. Thus, there 

is evidence that the hazard observed created not only the potential for injury but had actually 

contributed to a miner's injury. 

Maple Creek also believes that the judge erred in finding that the fourth Mathies element 

- the reasonable likelihood that an injury resulting from the hazard contributed to by the 

violation will be of a reasonably serious nature - was satisfied. Maple Creek would have the 

Commission reject the judge's finding that it was likely that the condition of the escapeway 

would contribute to a serious injury on the basis of miners having passed through the area daily 

without sustaining serious injury. MCM Br. at 12. However, the Secretary is not required to 

show that a violation has resulted in an accident or injury in order to establish S&S. See Arch of 

Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673, 678 (Apr. 1987).5 

At the bearing, evidence of the seriousness of the injuries ·that could result from the 

condition of the escapeway was provided by Inspector Dickey,6 who testified that it was 

reasonably likely that slips and falls in the muck would result in leg and back injuries. Tr. 257-

58. Cf Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991) (recognizing that miners 

could suffer serious injuries from stepping into unseen openings in surface they were traversing). 

MSHA assistant district manager Thomas Light further noted that any delay in miners evacuating 

the mine in an emergency increased the danger posed by the emergency, as the delay could 

prevent miners from getting out alive. Tr. 338-39, 373. 

While Maple Creek relies heavily on the existence of alternative escapeways as a means 

by which miners could avoid the conditions of the primary escapeway, the judge found, and 

Maple Creek does not dispute, that the mine had been experiencing methane and ventilation 

problems when the withdrawal order issued. See 26 FMSHRC at 548; Gov't Ex. 17 at 2. The 

5 In so arguing, Maple Creek again ignores that the miners making their way through the 

area were not using the route as an escapeway, but rather merely as a travelway to their jobs. As 

discussed above, use of the route as an escapeway is an entirely different matter; in those 

circumstances miners would be seeking quick exit from the mine in an emergency. The potential 

for sl~ps and falls would therefore be even greater during a mine evacuation. Consequently, the 

miners' everyday travel over the escapeway route is of little relevance to the fourth Mathies 

element. 

6 In Mathies, the Commission specifically noted that an inspector's judgment is an 

important consideration in the Commission's determination of whether a violation is S&S. 6 

FMSHR.Cat5. 

27 FMSHRC 563 
judge specifically noted the danger posed if miners were deprived of their fastest means of 

evacuation, the primary escapeway ventilated with intake air. 26 FMSHRC at 548. 

In light of the foregoing, substantial evidence supports the judge's conclusion that Maple 

Creek's violation of section 75.380 was S&S. 

C. 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 Buck Creek Coal, 

Inc. v. -MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarranW:ble failure 

test). 

The Commission has recognized that whether conduct is "aggravated" in the context of 

unwarrantable failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Aggravating factors include the 

length of time that the violation has existed, the extent of the violative condition, whether the 

operator has been placed on notice that greater efforts were necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation was obvious or posed a 

high degree of danger, and the operator's knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consol"); 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, 19 FMSHRC at 34; 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. 

The judge addressed the relevant aggravating factors, and many of her findings are 

undisputed by Maple Creek or have been already addressed herein. Maple Creek clearly knew 

that it had a problem with water in that area of the 4 West section intake escapeway and that 

greater efforts were necessary for compliance. That area usually had only 2 or 3 inches of water 

(Tr. 665), but on July 30 Maple Creek was issued the compliance order by the state inspector that 

27 FMSHRC 564 
described a 12-inch accumulation of water in the numbers 24 and 25 crosscuts that was causing 

slippery walking conditions. Gov't Ex. 1 at 1.7 

Maple Creek also does not take issue with the judge's finding that the condition of the 

escapeway was obvious. See 26 FMSHRC at 551. The judge noted that "muck" 12 to 17 inches 

deep in places is, "of course," obvious. Id. That miners used the cow path to avoid walking 

through the muck further demonstrates that the condition in question was obvious. 

As for the danger posed by the condition of the escapeway, much of the judge's reasoning 

rests on the same grounds which support her S&S finding. In addition to t~e slip and fall hazard 

posed by the condition, the judge specifically examined the consequences of a stretcher team 

having to navigate through the escapeway. Id. She found that not only would a stretcher team be 

subject to the same slip and fall hazard to which the other miners using the escapeway would be 

exposed, but the condition of the escapeway could delay the team's evacuation of the mine. Id. 

This could delay the provision of critical medical treatment to the injured miner. Id. The judge 

aJso noted that in the event of a fire or explosion, impeded evacuation of the mine could result in 

the death of miners. Id. As we have found with respect to her S&S finding, substantial evidence 

amply supports the judge's conclusion regarding the danger posed by the condition of the 

escapeway. 

The parties dispute the duration of the violation and the import of the actions Maple 

Creek was taking to combat the water accumulation. At trial, Brown testified that the 

intermittent notations in the preshift examination records about the water problem in the area at 

issue provided an indication that Maple Creek successfully pumped much of the excess water 

out, only to have it soon accumulate again. 26 FMSHRC at 550; Tr. 486-87. On appeal, Maple 

Creek contends that the judge ignored this evidence that it was attempting to correct the 

condition, which it believes mitigates the violation's unwarrantability. MCM Br. at 14. 

As her decision shows, the judge did consider Maple Creek's evidence. See 26 FMSHRC 

at 549-50. She rejected it, however, and concluded that, from the time the state compliance order 

was issued until the MSHA withdrawaJ order was issued, the water accumulation remained at a 

7 Even if Commissioner Suboleski' s dissenting position on the preshift records is 

accepted (see slip op. at 22-23), any error by the judg~ is harmless. The records themselves 

indicate that the escapeway was occluded by significant water for five consecutive shifts, from 

July 31 to August 1 and again from August 7 to August 9. Gov't Ex. 8. This evidence, 

combined with the record's indication that Maple Creek has been cited 18 times in the previous 2 

years for violations of the escapeway standard in section 75.380(d)(l), provides substantiaJ 

support for the judge's conclusion and indicates a repeated, if not chronic, failure to always 

ensure the escapeways are travelable. 26 FMSHRC at 553; Stip. 13 (Tr. 17); Gov't Ex. 13. 

Taking the evidence as a whole, it is reasonable for the judge to have inferred from those 

circumstances indifference to the seriousness and persistence of the problem, given the 

ineffectiveness of the operator's efforts to control it. 

27 FMSHRC 565 
level that continuously prevented safe travel by all persons through the primary escapeway. Id. at 

549. The judge based her conclusion on the testimony of miners that the water was present at a 

high level for at least a week, as well as on her finding, drawn from the testimony of Maple 

Creek management officials, that the company did not approach the water problem with the 

seriousness it deserved. While the judge's conclusion is contradicted to a degree by the preshift 

records, which show that high water levels were only noted during the July 31-August 1 and 

August 7-August 9 time frames (Gov't Ex. 8), that is not a sufficient basis to vacate her 

unwarrantable failure finding. 

We agree with the judge that the testimony of the Maple Creek management officials 

indicates a lack of seriousness on the part of Maple Creek with respect to water accumulation in 

the escapeway. Brown testified that before he would consider the conditions hazardous, as 

opposed to a "condition" to be managed, the water would have to be waist high in the escapeway, 

and that even then if a secondary escapeway were open, he would not be worried because the 

second escapeway would provide another way out of the mine. Tr. 550. Brown's standard for 

the water's depth becoming a hazard was similar to that of Alvy Walker, who testified that so 

long as the water in the escapeway in question did not exceed 20 inches and prevent a miner from 

moving his legs through it, he would not consider the conditions hazardous. Tr. 635-36. Miller 

was also of the opinion that the water would have to be higher than that measured in this case for 

him to consider the conditions hazard.ous, as in this instance miners could get through it if 

necessary. Tr. 692-94. Similarly, section foreman Richard Cline believed the water would have 

to be over the top of his 16-inch boots before it would be hazardous. Tr. 598. 

We believe that this testimony of the Maple Creek supervisors provided ample grounds 

for the judge to infer that Maple Creek management did not approach the water problem in the 

section with the seriousness it deserved. "[T]he substantial evidence standard may be met by 

reasonable inferences drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC 

1132, 1138 (May 1984). Inferences drawn by the judge are "permissible provided they are 

inherently reasonable and there is· a logical and rational connection between the evidentiary facts 

and the ultimate fact inferred." Id. In our view, it was eminently reasonable for the judge to 

infer from the foregoing testimony that Maple Creek simply did not view the condition of the 

escapeway as hazardous and therefore was not putting a high priority on bringing the escapeway 

into compliance with section 75.380(d){l). 

In light of the evidence, we agree with the judge that Maple Creek's actions reflect a 

threshold level of indifference and serious lack of reasonable care sufficient to establish an 

unwarrantable failure to comply with section 75.380(d)(l). 

D. Section 1 lO(c) Liability 

Section 110( c) of the Mine Act provides that whenever a corporate operator violates a 

mandatory health or safety standard, a director, officer, or agent of such corporate operator who 

knowingly authorized, ordered, or carried out the violation shall be subject to an individual civil 

27 FMSHRC 566 
penalty. 30 U.S.C. § 820(c). The proper legal inquiry for de~ermining liability under section 

l lO(c) is whether the corporate agent knew or had reason to know of a violative condition. 

Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff don other grounds, 689 F.2d 632 (6th Cir. 

1982), cert. denied, 461U.S.928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 

108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish section llO(c) liability, the Secretary must 

prove that an individual knew or had reason to know of the violative condition, not that the 

individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 

(July 1992) (citing Uniied States v. lnt'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). A 

knowing violation occurs when an individual "in a position to protect employee safety and health 

fails to act on the basis of infonnation that gives him knowledge or reason to know of the 

existence of a violative condition." Kenny Richardson, 3 FMSHRC at 16. Section llO(c) 

liability is predicated on aggravated conduct constituting more than ordinary negligence. 

BethEnergy, 14 FMSHRC at 1245. 

Maple Creek requests that the Commission consider the Secretary's failure to charge the 

mine foreman as a ground to overturn the judge's findings of liability on the part of the three 

supervisory personnel who were charged under section llO(c). MCM Br. at 16. Maple Creek 

cites no law in support of this extraordinary request, and we are aware of none. We are thus left 

to review the judge's findings regarding their individual liability under the substantial evidence 

standard. 

1. Steve Brown 

In concluding that Steve Brown was individually liable.for the section 75.380(d)(l) 

violation, the judge relied on Brown's familiarity with the conditions of the escapeway during the 

10 days preceding the issuance of the withdrawal order. 26 FMSHRC at 551-52. The judge 

found that Brown was well aware of the conditions, yet failed to take expeditious, effective 

remedial action to protect the safety of miners who traveled through the primary escapeway daily, 

as well as those miners who would have to evacuate the mine in an emergency. Id. There is 

substantial record evidence to support the judge's conclusion. As 4 West section coordinator, 

Brown oversaw operations on the section, including the pumping operations and maintenance of 

the pumps. Tr. 378, 391-93, 538-39. Brown traveled with the state inspector who issued the 

compliance order on July 30, and was responsible for abating that order. Tr. 535-36. Brown 

walked the section at least once a day, including the cow path, conducted some of the preshift 

examinations of the section, and reviewed the preshift and construction logs. Tr. 482-84, 553-54. 

Most importantly, and as the judge found, Brown was aware that the pumping he was 

responsible for overseeing was ineffective in removing the muck. 26 FMSHRC at 552. 

Inspector Dickey explained that the pumps Maple Creek was using, because they were air pumps, 

were incapable of removing muck and mud, so that the use of the pumps would not have changed 

his designation of the violation as unwarrantable. Tr. 325-26. Brown conceded that while the air 

pumps were sufficient to remove water, they could not remove muck. Tr. 402, 408, 480-81. 

Moreover, Brown explained that scoops running by the pumps would create the muck which 

27 FMSHRC 567 
would clog the pumps, and in some instances, as happened during the time in question, run into a 

pump and put it out of service. Tr. 393, 407, 414, 415, 481-82, 493. This was a serious problem, 

since the pumping system Maple Creek was using for the escapeway was interconnected, so that 

when ·one pump shut down the other pumps in the system would also shut down. Tr. 389-90, 

411-12, 513, 555. 

Brown nevertheless did not think additional steps were necessary to deal with the 

expanding accumulation of water in the area in question. Tr. 507-08, 537-38, 553-54, 561-62, 

564-65. Because the evidence is overwhelmingly to the contrary, and because Brown was in a 

position to protect employee safety yet failed to act on the basis of information that gave him 

reason to know that the escapeway's condition violated the standard, we affirm the judge's 

finding that Brown should be held liable under section l lO(c) for the section 75.380(d)(l) 

violation. 

2. Alyy Walker and Greg Mi11er 

Alvy Walker was a day shift section foreman, and Greg Miller was a midnight shift 

section foreman. 26 FMSHRC at 552. Their crews passed through the area in question on the 

way to the face. Id. at 552-53. Each was also occasionally responsible for conducting a preshift 

examination that included the area in question. Id; Gov't Ex. 8. The judge held each liable for 

the section 75.380(d)(l) violation because each knew of the violative conditions and failed to 

take effective remedial action to address the water accumulation problem. 26 FMSHRC at 552-

53. 

A review of the record indicates a lack of evidence regarding the judge's findings that 

Alvy Walker and Miller engaged in aggravated conduct that is more than ordinary negligence. 

Compare Austin Powder Co., 21FMSHRC18, 26-27 (Jan. 1999) (affirming section llO(c) 

finding where foreman was standing near miners who lacked the fall protection they should have 

been wearing). As Brown explained, the primary responsibilities of Alvy Walker and Miller 

were at the face, so that is where they spent as much of their time as possible. Tr. 474. If they 

were having any problems in their section or in getting to their section, they would report it to 

Brown. Tr. 539. There is no allegation that they withheld information from Brown or that they 

otherwise kept Maple Creek management in the dark regarding the conditions of the escapeway 

during the time in question. In fact, the preshift reports show that both reported the water 

accumulations. Gov't Ex. 8 at 17, 40. 

As was established by more than one witness at the hearing, different outby foremen were 

responsible for dealing with areas outby the face, including the water problem. One foreman, 

along with his two-man crew, did nothing but 'YOrk on the lines and pumps designed to remove 

the water. Tr. 392-93, 413-17, 474, 640, 680, 725. However, Miller explained: 

I was not assigned specifically on the outby area. I was strictly assigned to the 

face boss. At that particular time due to the length of travel, the nature of the 

27 FMSHRC 568 
water we had in-that area, we had outby foremen and people assigned to maintain 

the pumps. That wouldn't have been my specific job to know anything about it or 

to do anything about it as far as being assigned by the company to direct out a 

work order to get this taken care of. 

Tr. 724-25.8 

We agree with the judge that Brown is liable under section 110( c) for the section 

75.380(d)(l) violation, because the water accumulation was expanding while the same 

ineffective pumping system was being used under Brown's direction. The same rationale does 

not apply to Alvy Walker and Miller, however. While the two face foremen may have had views 

similar to Brown regarding the point at which the water accumulation would become a hazard, 

that does not establish that either possessed the power to take remedial action to eliminate the 

potential escapeway hazard involved here, i.e., neither was authorized to redesign the pumping 

system or to construct an alternative walkway. The two foremen had taken certain actions to 

address the problem of excess water in the escapeway such as consistently reporting the water 

accumulations and (in the case of Walker) sending two miners to repair a malfunctioning pump. 

Tr. 623-24, 650-51; Gov't Ex. 8 at 17, 40. On balance, we conclude that the two foremen's lack 

of authority to take necessary remedial action is a significant factor in this case and that their 

failure to take further action under these circumstances did not constitute aggravated conduct that 

amounts to more than ordinary negligence under section 110( c ). 9 

Moreover, the Secretary made no attempt at the hearing to establish the actions of Alvy 

Walker and Miller that were lacking, and her trial brief is entirely silent on this point. See 

Sec'y's Proposed Findings of Fact, Conclusions of Law, and Supporting Memorandum at 25-27. 

8 Brown did state that all foremen, when they passed by pumps during their travels 

through the section, were expected to check whether the pumps were working. Tr. 393, 417-18. 

However, there was no evidence presented that either Alvy Walker or Miller failed to do so. 

Indeed, when Alvy Walker learned of a pump down on his way to the face on August 9, he sent 

two men from his crew to try to repair it once they had retrieved their tools from the face area. 

Tr. 623-24, 650-51. 

9 We disagree with Commissioner Jordan, who in her dissent suggests that we have 

changed the standard that guides imposition of liability under section llO(c). Slip op. at 17-18. 

Contrary to her statement, in determining whether a corporate agent has engaged in aggravated 

conduct under section l lO(c), the Commission has examined the agent's authority to take 

remedial action in the face of unsafe conditions. E.g., Kenny Richardson, 3 FMSHRC at 17 

("Richardson, in view of his position as day shift master mechanic with general supervisory 

authority over the dragline, . .. should have removed it from service."). Nothing in Kenny 

Richardson nor any other Commission decision requires that, to avoid section llO(c) liability, 

Alvy Walker and Miller had to do more to eliminate the hazard where they lacked authority to do 

so. 

27 FMSHRC 569 
This is a fatal flaw, given that the Secretary has the burden of proof, including proof that the 

conduct at issue was aggravated. See Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) (in 

an enforcement action before Commission, Secretary bears burden of proving any alleged 

violation); Peabody Coal Co., 18 FMSHRC 494, 498 (Apr. 1996) (Secretary bears burden of 

proving conduct is unwarrantable). Given the lack of any evidence on this prerequisite to a 

finding of individual liability, we reverse the judge's section llO(c) determ.inations with respect 

to foremen Alvy Walker and Greg Miller. 

m. 

Conclusion 

For the foregoing reasons we affirm the judge's determ.inations that Maple Creek violated 

section 75.380(d)(l), that the violation was S&S, that the violation was due to Maple Creek's 

unwarrantable failure, and that Steve Brown was liable for the violation under section llO(c). 

We reverse the judge's determinations that Alvy Walker and Greg Miller were liable for the 

violations under section llO(c). 

27 FMSHRC 570 
Commissioner Jordan, concurring and dissenting: 

I agree with my colleagues in the majority that Maple Creek violated section 30 C.F.R. 

§ 75.380(d)(l), that the violation was significant and substantial and constituted an 

unwarrantable failure, and that Steve Brown is liable for the violation under 110( c) of the Mine 

Act, 30 U.S.C. § 820(c). However, I disagree with their conclusion that Alvy Walker and Greg 

Miller are not individually liable. 

The judge held that Walker and Miller were liable under section 110( c) of the Mine Act, 

finding that they knew of the violative condition and that their failure to take effective remedial 

action constituted aggravated conduct. 26 FMSHRC 539, 552-53 (June 2004) (AU). We review 

her findings by applying the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

"Substantial evidence" means "'such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC 

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

My review of the record evidence leads me to conclude that the judge's finding that Walker and 

Miller engaged in aggravated misconduct was eminently reasonable. 

Neither my colleagues nor the operator dispute that Walker and Miller were "corporate 

agents" of Maple Creek, an initial prerequisite for section llO(c) liability. 30 U.S.C. § 820(c). 

Furthermore, the majority does not challenge the judge's finding that Walker and Miller had 

knowledge of the violative condition, yet refused to consider the high water level to be 

hazardous. 26 FMSHRC at 552-53. There is ample record evidence, including his own 

admission, that Walker had received complaints from miners about the water problem. Tr. 104, 

134-35, 157, 645-46. Nonetheless, he testified repeatedly that the water was not a hazard, Tr. 

631, 639, and although the water conditions were characterized by the inspector as having the 

consistency of "pig slop," Tr. 243, Walker contended that muck was only a hazard if a miner 

could not move his or her legs through it. Tr. 635. Miller, who traveled through the primary 

escapeway daily, Tr. 696, also asserted that the water was not a hazard, Tr. 670-71, and that it 

would have to have been at "roof depth" before he would not have been able to get through it 

"for survival." Tr. 690-91. 

In spite of the unassailable evidence demonstrating Walker's and Miller's knowledge of 

the water accumulation and their cavalier attitude regarding it, the majority reverses the judge's 

finding of liability, concluding that there was insufficient record evidence showing that Walker 

and Miller "possessed the power to take remedial action." Slip op. at 15. I find it significant that 

this claim was never raised by Walker or Miller as a defense to the section l lO(c) charges, and 

that the majority cites not one Commission case declining to find 110( c) liability on this basis. 

Cf BethEnergy Mines, Inc. , 14 FMSHRC 1232 (Aug. 1992) (finding shift foreman liable under 

section llO(c) because he was aware of hazardous conditions even though the shift foreman was 

carrying out instructions of his superiors). This is a subtle, yet meaningful, sleight-of-hand 

transformation of the longstanding section 110( c) case precedent that to establish the liability of 

an individual who fails to act, he or she must simply be "in a position to protect employee safety 

27 FMSHRC 571 
and health," Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d 

632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983), which does not necessarily require the 

authority to make extensive structural changes, contrary to the majority's suggestion. Slip op. at 

15. 

In fact, Walker testified that he could have protected his miners from the danger of the 

high water level and mucky mine floor - had he acknowledged that these conditions posed a 

hazard: 

Q. Now, Mr. Walker, if you came across an area that your 

crew would have to go through and you considered it 

perhaps to be somewhat hazardous for them to go through, 

as the shift foreman, would you have the right to say, I'm 

not going to take my crew through here, I'm going to take 

them somewhere else. 

A. Certainly. That's my discretion. 

Tr. 646. Nonetheless, the record indicates that he took his crew through the rising water of the 

primary escapeway every day. 

Contrary to the majority's conclusion that Walker did not possess "the power to take 

remedial action," slip op. at 15, the record reflects (and the operator's arguments emphasize) that 

he did. As the majority acknowledges, slip op. at 15 n.8, Walker testified that he sent two men 

from his crew to try to repair a broken pump: 

There were three pumps in that area. I physically saw water 

seeping through from the return area into this track area. I did not 

want that to compound the problem in this hole so I sent them [the 

men] back immediately to take care of this situation and let me 

know immediately what they needed, if they needed additional 

parts .... I wanted to get someone on this situation right away, so I 

sent my people back at that point. 

Tr. 650-52. This is not the testimony of a foreman incapable of taking steps to protect his crew 

.from the water accumulation problem at this mine, as my colleagues' opinion would suggest. 

There is also record evidence that under the Commission's traditional section 1 IO(c) 

standard requiring that the individual be "in a position to protect employee safety and health," 

Miller is liable under section 110( c ). When asked at trial what he would have done if he thought 

the conditions in the escapeway constituted a hazard, he testified that "I wouldn't stick my crew 

through there and I would have notified my immediate foreman which would have been the shift 

27 FMSHRC 572 
boss on that particular shift." Tr. 673-74. Nothing in the record indicates that he took either 

action. 

Furthermore, the judge found Miller liable based in part on the fact that "[i]n terminating 

the C~mpliance Order, Inspector Walker lists Brown and Miller as having reported that the water 

had been pumped off the section, although Miller did not recall making such report." 26 

FMSHRC at 552 (citing Gov't Ex. 1 & Tr. 722-23). And indeed, Miller indicated at trial that he 

could have taken steps io remedy the water situation if he believed the mine was not obeying the 

state compliance order: 

Tr. 713. 

Q. Did you feel you had - you were out of compliance with 

this compliance order? 

A. If I had I would have took immediate action. What rm saying is I 

don't know the depth, I didn't measure it, that's number one. 

Perhaps most persuasive is Miller's own admission that he was in part responsible for the 

elevated water level: 

Tr. 729-30. 

[Q. Judge Bulluck:] In terms of your being responsible for this 

condition, do I understand from your testimony that you're 

saying if there was some violation that it wasn't your 

responsibility? 

A. No ma'am. I'm just one of many .... I in no way imagine 

take away any obligation on my part. rm in it with 

everybody else. That's the way it has to be. . .. . 

Notably, Maple Creek, in its brief, argues vigorously that Walker and Miller were 

significantly engaged in the efforts to ameliorate the water level. Indeed, the operator states that 

they "had been actively involved in the substantial efforts taken by Maple Creek to address the 

water condition in the cited area. These facts are uncontroverted." MCM Br. at 15. The 

operator also contends that "the undisputed evidence presented was that all three of these men 

[Brown, Walker, and Miller] were addressing the water condition, as each had been actively 

involved in the substantial efforts taken by Maple Creek to address the water." MCM Reply Br. 

at 7 (emphasis in original). These assertions make it difficult for me to adopt the majority's view 

that it was questionable whether Walker and Miller "possessed the power to take remedial 

action." Slip op. at 15. 

27 FMSHRC 573 
For the foregoing reasons, I would affirm the section 110( c) violations of Walker and 

Miller, and therefore respectfully dissent from the majority's ruling reversing the judge's finding 

of liability against them. 

MNY"t:Jiordan,t;6mmissioner 

~k~ 

27 FMSHRC.574 
Commissioner Suboleski, concurring and dissenting: 

I agree with the majority regarding the merits of the violation and that the violation was 

significant and substantial. I also agree with the majority's disposition of the section llO(c) 

liability of Alvy Walker and Gregg Miller. However, I.disagree with the majority and· the 

administrative law judge that Maple Creek's violation of the regulation was a result of its 

unwarrantable failure. I believe that the judge failed to fully consider the facts leading up to the 

August 9 citation and order, I as well as mitigating circumstances surrounding the violation. For 

this reason, I would remand the unwarrantability detennination to the judge for further 

. consideration. 

It is undisputed that Maple Creek is a wet mine with depressions frequently filling up 

with water. 26 FMSHRC 539, 541 (June 2004) (ALT). As the judge found, Maple Creek had an 

extensive pumping system in place at the mine, pumping out between 1.2 to 2 million gallons of 

water daily.2 Id. Clearly, this was an operator that could not ignore the problem of water in its 

mine if it intended to produce coal. The parties stipulated that water was in the intake escapeway 

of the 4 West section in varied depths on August 9, 2001, and had been there for approximately 2 

weeks previously. Id. And the Commission has concluded that the water was of sufficient depth 

that it affirmed the citation for violating 30 C.F.R. § 75.380(d)(l), which requires that 

escapeways be maintained in safe condition, that was issued on August 9. I fully concur in that 

detennination and that the violation was S&S. 

The judge's unwarrantability determination is premised on Maple Creek's actions in 

response to the state compliance order that issued on July 30. I believe that the judge ignored or 

did not sufficiently consider largely undisputed testimony concerning Maple Creek's efforts to 

combat the wet conditions in the 4 West section following the July 30 order. In this regard, 

foreman Steve Brown testified that he brought in four pumps to the 4 West section to address the 

water accumulation that had been cited by the state inspector. Tr. 390-91. Maple Creek's 

actions appear to have been productive as evidenced by inspections of the area between August 

1 When reviewing an administrative law judge's factual detenninations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. · 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion." Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). 

2 The fact that Maple Creek's pumping system removed this amount of water from a wet 

mine belies the judge's description of Maple Creek's pumping system between July 30 and 

August 9 as "woefully ineffective." 26 FMSHRC at 550. 

27 FMSHRC 575 
land 7. Tr. 578-81; Gov't Ex. 8. A foreman and a crew of two miners were responsible for 

maintaining pumps in the 4 West section and worked in this area on the shift preceding the 

August 9 order. Tr. 415-17. 

While miner testimony established that they generally used the "cow path" adjacent to the 

ribs to avoid the deepest water, this alone does not establish that the water level in the escapeway 

was consistently high throughout the period after July 30. Unlike the judge, I do find an inherent 

inconsistency between· the preshift log and the miner testimony regarding conditions in the 

escapeway.3 While miner complaints about the condition of the escapeway continued after the 

July 30 order, this is not inconsistent with the presence of residual water and muck that could not 

be pumped out, despite Maple Creek's good faith efforts.4 Moreover, it is not apparent that 

miner grumbling about conditions in the escapeway resulted in either formalized complaints to 

MSHA or to Maple Creek under the collective bargaining agreement. 

In discrediting evidence from Maple Creek regarding water in the escapeway, the judge 

relied heavily on the operator's witnesses' referring to it as a "condition," rather than as a 

problem or hazard. It appears to me that the reference to the water as a "condition" by all of 

Maple Creek's witnesses was a product of over zealous preparation for trial. Nevertheless, for 

whatever the reason the term was used, I cannot conclude that it is a reasonable or logical factual 

basis upon which to premise a credibility resolution. See Consolidation Coal Co., 11 FMSHRC 

966, 974 (June 1989) (the Commission will not affirm credibility determinations if there is 

dubious evidence to support them). Whether the water in the escapeway was viewed as a 

3 The judge's characterization of the log as reflecting "scattered notations of water 

accumulation" indicates a fundamental misunderstanding of the log. The log shows a consistent 

pattern of reporting the presence or absence of water, and a pattern that shows improved 

conditions in the escapeway following July 30, including 15 consecutive shifts with no reports of 

water accumulations in the escapeway. See Gov't Ex. 8. The breakdown of two pumps just prior 

to the August 9 mine inspection coincided with the reappearance of water in sufficient depths to 

again appear in the preshift log. Id. For this reason alone, I would remand this case to the judge 

to reexamine the evidence regarding unwarrantability. 

4 The testimony of the hourly workers can be reconciled with the preshift records. The 

water level could be pumped down without the mud drying up - i.e., without changing 

appearance much. In the darkness, walking along the "cow path," the miners would not be 

looking over the entire entry; they would be concentrating only on their next step. The testimony 

is that the water extended rib-to-rib for about half the distance at the time of the violation. 

Whether they would be walking one-fourth of the distance or one-half of the distance in water, 

and what the depth of that water was, would not be readily memorable months or years later to 

those who traveled every day - they recall only walking in and out of water and alongside muck. 

Indeed, the miners' (and foreman Walker's) testimony that it was much the same everyday 

contradicts the record that it was twice as long on August 9 as it was on July 30 - evidence of the 

unreliability of years-old memory. 

27 FMSHRC 576 
"condition" or a "problem," it is apparent from the record that Maple Creek had dedicated pumps 

and personnel to removing the water from the area, and I conclude that the judge inadequately 

weighed that evidence in making her unwarrantability determination.5 Compare Eagle Energy, 

Inc., 23 FMSHRC 829, 836 (Aug. 2001) ("Despite the chronic water accumulation problems in 

the escapeway, the operator made no attempt to abate accumulations in the escapeway."). 

In addition to the foregoing, it is not apparent that the judge sufficiently considered 

mitigating circumstances, as well as aggravating factors, that indicated Maple Creek was making 

a good faith effort to minimize the water accumulation in the escapeway. See id. at 834-40. The 

events that aggravated the water accumulation in the escapeway and preceded the citation and 

order on August 9 were the collision of a scoop with one pump and the breakdown of a second 

pump, which needed a new diaphragm. Tr. 407-14, 500. The nearest replacement pump was 

some 15 miles away. Tr. 412. Thus, at the time the inspector observed the escapeway, no pumps 

were running and water was seeping into the area. Tr. 499-500, 650. Maple Creek took 

immediate steps to repair the brC?ken pump. Tr. 648-50. 

In addition to the efforts of Maple Creek to address the extraordinary events in the 

escapeway on August 9, uncontradicted testimony in the record also shows that Maple Creek 

foremen were aware of the presence of a nearby, alternate escapeway as a means of avoiding the 

water in the primary escapeway. Tr. 454, 506-07, 631, 735. While this mitigating factor does 

not affect the violation itself, it weighs on the determinatiori of indifference and serious lack of 

reasonable care and whether this violation involves ordinary negligence or aggravated 

misconduct. See Florence Mining Co., 11FMSHRC747, 753-54 (May 1989). 

In sum, I would remand this proceeding to the judge for further consideration of whether 

the violation was due to Maple Creek's unwarrantable failure. 

While I agree with the majority of my colleagues regarding the dismissal of section 

110( c) charges against Alvy Walker and Greg Miller, I disagree with the affirmation of the 

judge's determination of section llO(c) liability against section coordinator Steve Brown. For 

5 The majority asserts that it is harmless error for the judge to have misconstrued the 

preshift reports that, when properly read, indicate that the water in the entry was pumped down 

during the period between the state citation and the citation at issue. However, the failure to 

abate the state order and the truthfulness of the report to the state inspector are at the heart of the 

lengthy MSHA investigation into what would otherwise have been a routine, low-risk-of-injury 

violation. The preshift reports, as the only contemporaneous, official, written record, go to the 

heart of the issues at hand here- and essentially refute them. The judge's error in misconstruing 

them is not harmless, given her conclusion that "Maple Creek's actions to [fail to] abate" the 

earlier state order constitute an unwarrantable failure to comply. 26 FMSHRC at 551. I believe 

that a clear understanding of these reports would allow the judge to properly decide whether this 

is a case of aggravated misconduct and callous disregard, or simply a case of two malfunctioning 

pumps and scoop problems foiling a good-faith effort by Maple Creek to comply. 

27 FMSHRC 577 
reasons similar to my conclusion regarding the need to remand the judge's unwarrantable failure 

detennination, I am compelled to conclude that the judge must reconsider her conclusion 

regarding Brown's liability. 

The judge's determination with regard to Brown was premised on her finding that, after 

the state compliance order, he failed "to take expeditious, effective remedial action to protect the 

safety of miners who traveled daily through the primary escapeway, as well [as] those miners 

who would have to evacuate the mine in an emergency." 26 FMSHRC at 552. The judge 

concluded that Brown's conduct "amounted to an aggravated lack of care that was more than 

ordinary negligence." Id. 

As I have noted above, slip op. at 21, the judge ignored undisputed testimony regarding 

Maple Creek's actions directly in response to the July 30 order. Brown was instrumental in 

setting up the four pumps in the 4 West section that led to the apparent improvement in 

conditions in the section up until August 9. Id. This response to the water accumulation problem 

in the section stands in marked contrast to the inaction of officers or agents that has characterized 

Commission decisions finding section llO(c) liability. Compare Sunny Ridge Mining Co., 19 

FMSHRC 254, 274 (Feb. 1997) (company president was aware of violations but failed to take 

any measure to correct them); Prabhu Deshetty, 16 FMSHRC 1046, 1051(May1994) (mine 

foreman was aware of ongoing accumulation problem but failed to take measures to remedy the 

problem). The events that led to the water accumulation on August 9 were not due to Brown's 

inaction, let alone an aggravated lack of care. Rather, the immediate cause of the water 

accumulation problem on August 9 was due to the breakdown of two of the four pumps, which 

caused all pumping to cease. In light of these extenuating factual circumstances, I would ask the 

judge to further consider whether Brown knowingly violated section 75.380(d)(l). 

27 FMSHRC 578 
Distribution 

Marco M. Rajkovich, Jr., Esq. 

Noelle M. Holladay. Esq. 

Watt. Tarrant & Combs. LLP 

250 West.Main Street. Suite 1600 

Lexington. KY 40507-1746 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"~ Floor 

Arlington. VA 22209 

Judith Rivlin. Esq. 

United Mine Workers of America 

8315 Lee Highway 

Fairfax. VA 22031 

Administrative Law Judge Jacqueline R. Bulluck 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington. D. C. 20001 

27 FMSHRC 579 

ADMINISTRATIVE LAW JUDGE DEQSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-35n/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

AD:MINISTRA TION (MSHA), 

Petitioner 

v. 

GENW AL RESOURCES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GARTH J. NIELSON, employed by 

GENW AL RESOURCES, JNC., 

Respondent 

August 11, 2005 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2004-453 

A.C. No. 42-01715-31669 

Crandall Canyon Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2004-454 

A.C. No. 42-01715-31882A 

Crandall Canyon Mine 

Appearances: Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, and Ned Zamarripa, Conference & 

Litigation Representative, Mine Safety and Health 

Administration, Denver, Colorado for Petitioner; 

Before: 

Noelle M. Holladay, Esq., and Marco M. Rajkovich, Esq., Wyatt, 

Tarrant & Combs, Lexington, Kentucky, for Respondents. 

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 Genwal Resources, Inc. ("Genwal") and Garth J. Nielson, pursuant to sections 105 and 

110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 ("Mine Act"). 

The petitions allege that the respondents violated 30 C.F.R. § 72.630(a), which governs the 

control of dust created by drilling. An evidentiary hearing was held in Salt Lake City, Utah, and 

the parties filed post-hearing briefs. 

27 FMSHRC 580 
I. BACKGROUND AND SUMMARY OF THE EVIDENCE 

Genwal operates the Crandall Canyon Mine, an underground coal mine in Emery County, 

Utah. On May 29, 2003, MSHA Inspector Randy E. Gunderson issued Order No. 7616128 under 

section 104(d)(l) alleging a violation of 30 C.F.R. § 72.630(a). The body of the order provides 

as follows: 

On the 3Y2 east longwall recovery face (MMU 010), during the full 

bolting process con.ducted by the crew, drilling of the rock roof is 

being conducted without the means of controlling the dust 

generated by the drilling. Dust shall be controlled by the use of 

permissible dust collectors, or by water, or by ventilation. None of 

these preventative measures were in effect. The mine operator 

engaged in aggravated conduct by acknowledging a safety hazard 

and not taking corrective action. 

The inspector determined that an illness or injury was reasonably likely, that the violation was of 

a significant and substantial nature, and that the violation was the result of the operator's 

unwarrantable failure to comply with the standard. The cited standard provides that "[ d]ust 

resulting from drilling in rock shall be controlled by use of permissible dust collectors, or by 

water, or water with a wetting agent, or by ventilation, or by any other method approved by the 

Secretary that is as effective in controlling the dust." The Secretary proposes a penalty of 

$6,600.00 against Genwal and a penalty of $600.00 against Mr. Nielson. 1 

Inspector Gunderson testified that during his inspection on May 29, 2003, he parked his 

vehicle about 500 feet from the face and walked up the headgate side onto the longwall. As he 

walked along the face, he noticed that miners were drilling into the roof in order to install roof 

bolts. (Tr. 16). The inspector walked past Joe Fielder, the longwall coordinator, as he inspected 

the longwall. Gunderson could hear a drill operating as he walked between the shields and the 

pan line. When he arrived at the first drill, he could see dust coming off the drill. (Tr. 19; Ex. G5). Gunderson believes that this drill was at or near shield 86. (Ex. G-4). Garth Nielson, the 

mine superintendent, was sitting near the drill. The air movement was from the headgate to the 

tailgate. (Tr. 21). 

Inspector Gunderson determined that the drilling at shield 86 should cease because the 

miners were "drilling dry" and he could hear at least one other drill being operated downwind 

from the drill. Id. The inspector testified that the dust was airborne and that the only ventilation 

in the area was face ventilation which was moving toward the miners at the second drill further 

along the longwall. 

1 On February 8, 2004, MSHA Inspector Donald Durrant issued Citation No. 7613354 at the 

mine. A penalty of $6,300.00 was proposed by the Secretary in Docket No. WEST 2004-453. At 

the hearing, the Secretary agreed to vacate this citation. (Tr. 8). 

27 FMSHRC 581 
Gunderson testified that he asked Nielson if he knew that he had to use water while 

drilling and that Nielson replied, "I know." (Tr. 22). After the drill was shut down, Gunderson 

and Nielson walked down the face to the second drill, which was about 100 feet away. The 

inspector ordered that drill shut down. After that, Inspector Gunderson walked further down the 

longwall toward the tailgate to where miners were getting ready to operate a third drill and he 

ordered them not to drill. (Tr. 24, 116). Inspector Gunderson asked Section Foreman Mike 

Allred, who was at the third drill, why water was not being used with the drill. Gunderson 

testified testified that Allred replied that he wanted to stay dry. (Tr. 25). 

Miners were drilling into the roof using stoper drills to install roof bolts. These drills are 

relatively small and are supported by a pneumatic cylinder which provides thrust while drilling. 

(Ex. G-5). A water hose can be attached to each stoper drill to suppress dust. Roof bolts and 

matting are installed along the longwall in preparation of a longwall move in which the shields 

and all the other longwall components are removed from the section. The longwall was about 

680 feet long (Tr. 20). There have been about 19 longwall moves at this mine. (Tr. 82, 164). 

Inspector Gunderson determined that the violation was a result of Genwal's 

unwarrantable failure to comply with the standard because the violation was "obvious" and a 

"hazard," and because management knew of "this problem" and were not "taking care of it." (Tr. 

26, 42-43). Because the miners were "drilling dry," Inspector Gunderson believed that Genwal 

was not controlling the dust generated by the drills. He concluded that the miners were drilling 

into quartz-bearing rock because the dust produced was a white powder. It is Inspector 

Gunderson's understanding that the roof was sandstone. He could see this white dust in the air, 

on the pan line, and on the miners working with the drills. 

The inspector determined that the violation was of a significant and substantial nature 

("S&S") because, if the practice of drilling without controlling the dust were to continue, it is 

reasonably likely that miners would develop silicosjs, which is a serious illness. (Tr. 35). He 

believes that everyone along the longwall face was exposed to the hazard because they were 

either around a drill or were in the airstream containing dust particles. (Tr. 36). Two miners 

were operating the first drill and the other two drills were operated by three miners each. (Tr. 47). 

The shift started at 7:00 a.m. and Inspector Gunderson observed the condition at 8:00 ~.m. 

Although he is not certain, the inspector believes that drills were used on the previous shift 

without controlling dust because a few roof bolts had already been installed along the longwall 

face and there was quite a bit of dust that had settled along the pan line. (Tr. 37). Inspector 

Gunderson terminated the order when the drills were shut down. The drills were connected to 

the waterline along the longwall before drilling .resumed. (Tr. 46). 

Danny Vetter, an MSHA special investigator, conducted an investigation into the 

circumstances surrounding the citation that was issued. (Tr. 247). He determined that "there was 

an obvious and blatant violation" of the standard at the time Inspector Gunderson entered the 

longwall section and Garth Nielson was present. He stated that dust samples are not required to 

be taken under the cited standard. Vetter believes that if dust is visible, then respirable silica dust 

27 FMSHRC 582 
is also present. (Tr. 253). He also stated that relying on face ventilation does not meet the 

requirements of the standard and may, in fact, put more dust into suspension. (Tr. 255). As a 

consequence, he recommended that a civil penalty be proposed against Nielson. 

David Jensen, who was an assistant to the mine's safety director, was working at the third 

drill on the day of the inspection. (Tr. 77). He testified that the drills were not connected to the 

water line that morning. (Tr. 78). He said that the miners in the longwall face typically do not 

use water when drilling. Id. He further testified that when he provides annual safety and health 

training at the mine, he discusses the need to use water as a method of dust suppression on drills. 

(Tr. 80-81). He also stated that he had discussed this issue with Garth Nielson in the past when 

miners complained to him about the lack of dust suppression. (Tr. 81-82). Jensen testified that 

he felt uncomfortable operating the drill without water on May 29 because, as a safety trainer, he 

instructed miners to use water and he believed he would lose the respect of the miners by drilling 

dry. (Tr. 83). He did not wear a respirator on May 29. 

Jensen believes that the ventilation along the face of the longwall was insufficient to 

direct dust away from miners. He could s.ee the dust and there were no ventilation curtains 

present to direct air away from miners. (Tr. 84). Jensen stated he could see dust everywhere 

around the first drill where Nielson was sitting. (Tr. 87). Jensen also testified that whenever a 

longwaJI move was scheduled, miners would start complaining to him about the method of 

drilling without dust control. (Tr. 89). Jensen overheard Nielson telling Inspector Gunderson 

that he has tried to get the miners to hook up water lines to the drills but he could not get them to 

use water. (Tr. 91-92). Jensen disagrees with this assessment because, from his perspective, 

miners often complained to him about the lack of water when installing r<,>of bolts in preparation 

for a longwall move. (Tr. 81, 89, 92). 

Jensen testified that he had been on the longwall during several longwall moves. (Tr. 99). 

He could only remember one occasion when water was used to control dust on the stoper drills. 

Jensen admitted that he did not take any steps on the morning of May 29 to get water to the drills. 

(Tr. 101-103). Jensen testified that several years earlier, he told Joe Fielder, the longwall 

coordinator, that water lines should be connected to the stoper drills when roof bolting along the 

longwall. (Tr. 103-05). According to Jensen, Fielder told Jensen that .. we're not going to do it 

so just get out of here." (Tr. 103). 

David Turner, a longwall mechanic, testified that he helped operate the second drill along 

the face from the headgate. (Tr. 126). He was drilling dry. He said that usually four stoper drills 

are used. He could see a drill operating on each side of him. (Tr. 128). Turner testified that he 

could "most definitely" see dust in the area coming from the drills. Id. He does not think it 

would be feasible to use ventilation to control the dust because an "enormous amount of 

curtains" would be required to direct the contaminated air away from the miners working along 

the face. (Tr. 130). Water was available along the face so it took about 30 to 45 minutes to 

supply water to each drill after the withdrawal order was issued. Id. Some of the fittings 

27 FMSHRC 583 
necessary to connect water to the drills had to be located elsewhere on the section. (fr. 131, 

139). 

Turner could not recall ever being told to use water when operating the stoper drills, but it 

was common knowledge that water was necessary to "handle" the dust. Id. Turner was wearing 

a respirator because it was his normal practice to do so whenever he was working on a longwall 

section. (Tr. 132). He does not recall anyone else wearing·a respirator that day. Turner has 

participated in about seven longwall moves and, if he is asked to operate a drill, he tries to 

operate the drill at the headgate end so that he can stay out of the dust generated by drilling. (Tr. 

133-34). He has never been told that he had to drill without water. {Tr. 138). 

Rodney Cox, a fireboss at the mine, testified that because the mine was shorthanded on 

May 29, he worked on the longwall face that day. (Tr. 143). He operated the second drill and 

Dave Turner assisted him. Cox said that he did not use water on the drill because he "chose not 

to." (Tr. 146). It would not have been hard to hook up water to the drill. (Tr. 152). He knew 

that some method of dust control was necessary when operating a drill in order to control the 

silica. (Tr. 146). He did not wear a respirator that day. Cox testified that he had previously 

operated a drill with water as well as dry. (Tr. 147). He is not aware of any methods to control 

dust with stoper drills other than water. He does not believe that ventilation would protect 

miners further down the air course. (Tr. 148-49). 

Garth Nielson, the mine superintendent, testified that he does not have direct 

responsibility for planning, organizing, or scheduling longwall moves. (Tr. 162). He also does 

not schedule daily work assignments. The longwall coordinator and general mine foreman are 

responsible for longwall moves. 

Nielson testified that Genwal always complies with section 72.630(a) by using water or 

ventilation. (Tr. 164). Ventilation is used if there is sufficient air in the longwall. The mine has 

never been cited by MSHA for using ventilation on the longwall section to control dust from 

stoper drills. (Tr. 164-65). The approved ventilation plan requires 45,000 cubic feet per minute 

("cfm") on the intake of the longwall when coal is being mined. (Tr. 166, Ex. R-1 p. 21-22). 

During a longwall move, the mine is required to have 20,000 cfm on the intake end. There is 

nothing in the ventilation plan that addresses any special requirements when miners are drilling 

into rock on the longwall face. (Tr. 166). Nielson understood that when bolts were being 

installed on the longwall secti~n prior to a longwall move, Genwal was required to move enough 

air through the longwall to stay in compliance with all dust standards. Mine records show that 

prior to the start of the shift, the quantity of air entering the longwall was 53,504 cfm. (Tr. 169; 

Ex. R-2). 

Nielson is the superintendent for several mines. He traveled to the Crandall Canyon Mine 

on May 29 because he knew that there was a longwall move scheduled. (Tr. 170). He arrived at 

the mine at about 5:30 a.rn. and, after checking the books, traveled underground. He parked near 

the tailgate entry of the longwall panel and proceeded to walk up the return air course on the 

27 FMSHRC 584 
tailgate side. He checked the roof for abutment pressures and, when he anived at the tailgate end 

of the face, he looked into the gob to see if there was a good tight cave. (Tr. 180). Because the 

cave was tight, ventilation along the face was excellent. He walked along the face toward the 

headgate and checked to see if the roof was well meshed. When he reached the midpoint of the 

longwall face he could see two people and a stoper drill. (Tr. 183). It was still the graveyard 

shift at the time. The miners were installing matting to the roof with roof bolts. (Tr. 184). There 

was no water supplied to the drill. There was a large amount of air moving through the area, but 

Nielson did not take any air measurements. As he approached the miners drilling into the roof, 

he could see dust coming from the drill from a distance of about 40 to 50 feet from the drill. (Tr. 

185-86). He did not believe that there was enough dust present to be concerned about. Nielson 

helped the miners until the end of their shift. 

At the end of the graveyard shift, Nielson walked further along the longwall and sat down 

to wait for the day shift crew. (Tr. 187). Mike Allred was the first to anive on the day shift. He 

told Nielson that he was shorthanded so he would help run a drill. There was no discussion of 

putting water on the drills. Nielson testified that he has never ordered anyone to drill without 

water and if a miner wanted to drill with water he could have done so. (Tr. 190). He stated that 

no miner has ever complained that he could not get water to his drill. Dave Jensen was on the 

crew that day, but Nielson did not recall seeing him and he does not recall discussing anything 

with him. (Tr. 191). 

Insepctor Gunderson arrived on the section early that morning and walked past Nielson 

and walked toward the tailgate. When the inspector returned he said to Nielson, "Garth, we got a 

problem." (Tr. 192). Inspector Gunderson told Nielson that because Genwal was not running 

water on the stoper dril1s he was going to issue a (d)(l) order. In response, Nielson said, "I see 

then we have a problem." (Tr. 193). Nielson testified that, by making that statement, he meant 

that the withdrawal order was a problem, not that he agreed that the stoper drills created a 

problem. Nielson told the Gunderson that he would shut down the drills, but the inspector told 

him that he had already done so. 

Nielson does not believe that the mine was in violation of section 72.630(a) on May 29. 

The amount of silica dust being emitted was not enough to be out of compliance with the 

"milligram standard that we have to meet." (Tr. 195). MSHA has never taken dust samples 

when miners were drilling along the longwall. Nielson testified that a miner complained to 

MSHA about excessive silica dust along the longwall in January 2005 when the shearer was 

cutting more than two feet of rock for the length of the longwall. MSHA placed five dust pumps 

on longwall employees to test for respirable dust. (Tr. 197). Nielson testified that the test results 

revealed that the miners were not overexposed to silica dust. Nielson admitted that in the 

January 2005 situation, the miners wearing the pumps were about 2,000 feet downwind from the 

shearer cutting into the rock. (Tr. 211). Nielson further testified that any employee can request 

that he be fitted for a respirator to wear when working around drills. (Tr. 199). 

27 FMSHRC 585 
Nielson testified that Genwal makes sure that water is available for the stoper drills along 

the longwall. (Tr. 199). He stated that connections and fittings to connect water to the drills 

were readily available. Id. He further stated that water is used on the drills about half of the time 

during longwall moves. (Tr. 203). Miners tend to use water when the roof is damp and some 

miners prefer to use water not only to control the dust but because it is faster to drill with water. 

Face ventilation is used to control the dust at all other times. 

Robert Oviatt, shift foreman, testified that the face ventilation on May 29 was twice the 

volume required by the ventilation plan. (Tr. 232). He believes that this ventilation was . 

controlling the dust. He admitted, however, that any miner downwind from one of the stoper 

drills would have been exposed to dust. (Tr. 237-38). He did not tell any miners that they could 

not use water with the stoper drills. (Tr. 233). 

II. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Violation of Section 72.630(a) 

I find that the Secretary established a violation of the standard. Section 72.630 was 

drafted to address a specific problem: dust that enters the mine environment when drilling into 

rock in underground mines. This requirement is separate and distinct from any standards 

regulating the amount of respirable dust that is permitted in underground mines. The standard is 

violated if an operator is not using one of the specified methods to control dust resulting from 

drilling regardless of the actual level of exposure. Nothing in section 72.630 requires that the 

Secretary·must establish there was an actual overexposure to drill dust at the time the citation is 

issued.2 Section 72.630 is not vague or confusing on this issue. It clearly provides that any dust 

resulting from miners drilling into rock must be controlled. There is no dispute that miners were 

using stoper drills to install roof bolts in the longwall section, that these miners were drilling into 

rock to perform this task, and that visible dust wa~ being created. It can be inferred that lnvisible 

respirable silica dust was also being produced. As a consequence, the issue is whether the dust 

being produced as a result of the drilling was being controlled in a manner required by the 

standard. 

One method to control drill dust is by using water, as set forth in section 72.630(c). 

There is no dispute that water was not being used. Respondents argue that the mine was using 

ventilation to control the dust. Section 72.630( c) provides, under the heading "Ventilation 

Control," that to "adequately control dust from drilling rock, the air current shall be so directed 

that the dust is readily dispersed and carried away from the drill operator and any other miners in 

the area." Respondents contend that the ventilation provided at the longwall face met the 

requirements of subsection (c). Respondents point to the fact that the mine was providing at least 

2 Indeed, the preamble to the standard provides that the "final rule is a work practice 

standard that does not require sampling." 59 Fed. Reg. 8317, 8323 (Feb. 18, 1994). 

27 FMSHRC 586 
53,500 cfm of air to the area while the ventilation plan only requires 20,000 cfm. Genwal also 

relies on the mine's history of compliance with MSHA standards with respect to respirable silica 

dust. Genwal argues that because the citation is not supported by any sampling for respirable 

silica dust, I should assume that the mine was in compliance with all respirable dust standards. 

Inspector Gunderson took a rather practical approach to his interpretation of the standard. 

He stated that he probably would not have issued the order if Genwal had only one stoper drill 

operating so long as there were not any miners working downwind from the drill. In this 

instance, however, at least three drills were going to be operating during the day shift and these 

drills were operating about 100 feet apart. Gunderson believed that miners working downwind 

from the first drill would be exposed to the dust. 

I agree with Inspector Gunderson's assessment of the conditions at the mine. The drill 

dust was not "dispersed and carried away from the ... miners in the area" by the longwall 

ventilation. There was no dispute that drill dust was being produced because it was readily 

visible in the air and it had settled on longwall components. This dust that had not settled was 

blowing directly toward the miners at the downwind drills. The Secretary is not required to 

establish that Genwal violated threshold limit values for silica. I do not agree with Genwal' s 

argument that, if it is complying with its approved ventilation plan, it is in compliance with the 

requirements of section 72.630(c). The requirements of section 72.630 are separate and distinct 

from the ventilation plan requirements and an operator can violate this health standard without 

violating the ventilation plan. 

Genwal argues that the language of section 72.630 clearly provides that ventilation may 

be used to control dust. Genwal contends that because the language of the standard is clear, I 

should "give effect to the unambiguously expressed intent of the regulation" that ventilation is a 

permissible control method. (G. Br. 4, citing Chevron U.S.A. Inc. v. Natural Resources Defense 

Councit, Inc., 476 U.S. 837, 843 (1984). If ventilation is used to control dust, however, it must 

be effective. Consolidation Coal Co., 23 FMSHRC 392, 397-98 (April 2001). I find that the 

face ventilation along the longwall did not effectively control the drill dust as required by the 

standard. 

Genwal also argues that, even if I find that the language of the standard is ambiguous, the 

Secretary's interpretation of the standard is not entitled to deference because it is contrary to the 

plain meaning of the words. It maintains that Genwal was not provid~d with fair notice of the 

requirements of section 72.630. The Commission has held that the language of section 72.360 is 

clear and unambiguous. Id. at 397. If ventilation is used to control drill dust, it must carry the 

dust away from drill operators and other miners in the area. The evidence clearly establishes that 

the longwall ventilation used by Genwal did not carry the dust away from miners in the area but 

rather blew the dust toward them. This "carry away" requirement is clearly set forth in the 

standard. It is Genwal, not the Secretary, who is interpreting the standard beyond its plain 

meaning. The Secretary provided fair notice of the requirements of this standard as applied to 

the facts of this case. The Secretary clearly set forth her intended requirement that, if ventilation 

27 FMSHRC 587 
is used to disperse drill dust, the air current must carry the dust away from miners working in the 

area.3 Respirable dust samples are not required to establish a violation. Accord Jim Walter 

Resources, Inc., 17 FMSHRC 1423, 1444-45 (Aug. 1995) (AU); affd Jim Walter Resources, 

Inc. v. Sec'y of Labor, 103 F. 3d 1020, 1024 (D.C. Cir. 1997). I find that the ventilation used by 

Genwal on the longwall face did not effectively carry the dust away. 

B. Si2Jlificant and Substantial 

I also find that the violation was S&S. A violation is classified as S&S "if based upon the 

particular facts surrounding the violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan1,1ary 

1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of the 

criteria is made assuming "continued normal mining operations." U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984). 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 

(April 1988). As applied to a health standard, such as section 72.630, the Secretary must 

establish: (1) the underlying violation of the health standard; (2) a discrete health hazard, a 

measure of danger to health, contributed to by the violation; (3) a reasonable likelihood that the 

health hazard contributed to will result in an illness; and (4) a reasonable likelihood that the 

illness in question will be of a reasonably serious nature. Consolidation Coal Co., 8 FMSHRC 

890, 897 (June 1986). The Secretary is not required to show that it is more probable than not that 

an illness will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 

1996). 

I find that there was a violation of the health standard and that a discrete safety hazard 

was contributed to. I also find that there is a reasonable likelihood that the health hazard 

contributed to will result in an illness. It is important to recognize that the violation need only 

"contribute to" a health hazard. The violation is not required to create a health hazard to be 

considered S&S. 

I rely on the phrase "hazard contributed to" in this element of the Mathies test in reaching 

this conclusion. 6 FMSHRC at 3. A single exposure to respirable silica dust may not result in an 

illness, but an exposure to respirable silica dust is a hazard that contributes to the development of 

an illness. See Consolidation Coal Co., 8 FMSHRC at 894-99. When promulgating the 

standard, the Secretary noted that during drilling "there is the potential for extremely high 

exposures in short periods of time to both miners doing the .. . drilling and to other miners in the 

immediate area." (S. Br. 4 quoting 59 Fed. Reg. 8318 (Feb. 18, 1994)). The inhalation of freshly 

fractured silica particles from rock drilling may contribute to the development of acute silicosis. 

3 In addition, the preamble to the standard provides that "[g]eneral ventilation is not usually 

effective in underground coal mines for drill dust control, unless it can rapidly disperse and carry 

away the drill dust as well as direct the dust away from workers in the area." 59 Fed. Reg. at 8324. 

27 FMSHRC 588 
(S. Br. 3; Tr. 38-41; Ex. G-6 p. 8-9; 59 Fed. Reg. at 8319). "Silicosis has been recognized ... as 

a disease associated with coal miners, and the inhalation of silica-bearing dust has been causally 

linked to the disease." U.S. Steel Mining Co., Inc. 8 FMSHRC 1274, 1279 (Sept. 1989). The 

Secretary was unable to establish whether any miner was overexposed to silica dust because 

Inspector Gunderson ordered drilling to stop immediately so he did not take respirable dust 

samples. When taking into consideration continued normal mining operations, I believe that it is 

reasonable to presume under the facts of this case that miners would have been exposed to silica 

dust for at least a short period of time. I find that the Secretary was not required to sample for 

dust in order to establish the S&S nature of the violation in this case. Contra Jim Walter 

Resources, 17 FMSHRC at 1446-48 (ALJ). Any illness contributed to by the violation would be 

of a reasonably serious nature. "The fibrosis associated with silica-bearing dust is irreversible 

and may continue to develop after the exposure has ended." Id. at 1281. · 

C. Unwarrantable Failure 

I find that the Secretary established that the violation was the result of Genwal' s 

unwarrantable failure to comply with the safety standard. Unwarrantable failure is defined as 

aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 

FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as 

"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable 

care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. I find that 

Genwal' s conduct does not reach that level of negligence. A number of factors are relevant in 

determining whether a violation is the result of an operator's unwarrantable failure, such as the 

extensiveness of the violation, the length of time that the violative condition has existed, the 

operator's efforts to eliminate the violative condition, whether an operator has been placed on 

notice that greater efforts are necessary for compliance, the operator's know ledge of the existence 

of the violation, and whether the violation is obvious or poses a high degree of danger. Mullins 

& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21FMSHRC997, 

1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 

The Secretary argues that Genwal had knowledge of the violation because it krlew that it 

was not using dust collectors or water to control the drill dust and it knew that ventilation would 

not carry the dust away from downwind miners. She contends that Nielson knew that stopers 

were being used and that miners downwind from other .stopers would be breathing dust generated 

by the stopers. The Secretary states that Nielson acknowledged that he knew that water should 

have been used to COJ?,trol dust when Inspector Gunderson issued the order of withdrawal. In 

addition, Nielson was present at the time drilling started and could see and hear the drills 

operating. Foremen and other mine managers are held to a high degree of care regarding safety 

matters. 

Genwal argues that it reasonably believed that it was complying with the standard by 

providing more than sufficient ventilation along the longwall. It was providing more than twice 

the volume of air required by the ventilation plan during longwall moves. In addition, Genwal 

27 FMSHRC 589 
maintains that because it has moved the longwall equipment about 19 times over an 8 year period 

without being cited by MSHA, an aggravated conduct finding is not appropriate. It contends that 

any of the miners could have used water to control dust as the company has no policy against 

using water on stoper drills and the equipment to do so was present on the section. Finally, it 

contends that the Secretary misconstrued Nielson's statement to Inspector Gunderson that "I see 

then we have a problem" when he was told about the unwarrantable failure order. Genwal argues 

that Nielson simply meant that if an order was being issued, then there was a problem, not that he 

admitted that he knew that was a violation. 

Jensen, who worked for the safety department, and Oviatt, who was a shift foreman, 

testified that they knew that any miners in the area who were downwind from a stoper would be 

exposed to drill dust. (Tr. 83-87, 236-38). Nielson observed driil dust being produced when he 

walked in the longwall on the graveyard shift. In addition, the testimony of miners demonstrates 

that it was "common knowledge" that the only way to control dust on the stoper drills when used 

on the longwall was to drill with water. (Tr. 131). The drills were close enough to each other 

that they could be seen and heard by the miners. Nielson was at a location where he could have 

seen and heard the first drill operating. Turner, a mechanic, and Cox, a fireboss, testified that 

miners on the section were well aware of the hazard created by the drill dust and knew that face 

ventilation would not control the dust. (Tr. 128-30; 146-49). Jensen testified that miners 

complained to him about the lack of water on the drills. (Tr. 81). Although these miners may 

not have been well versed on the requirements of section 72.630, they knew that the drill dust 

was not being dispersed and carried away. This violation should have been obvious to mine 

management. 

It appears that the violation had only existed for a short time and Genwal had never been 

placed on notice by MSHA that greater efforts were necessary to comply with the standard. 

Nevertheless, miners and an employee in the safety department had complained about the lack of 

dust control for the drills. Mine management was put on notice by its own employees that 

greater efforts were necessary to control dust when installing roof bolts prior to a longwall move. 

I find that the violation demonstrates a serious lack of reasonable care. Genwal management did 

not recklessly disregard the standard and their conduct does not rise to the level of intentional 

misconduct, but I find that the violation was caused by Genwal's aggravated conduct constituting 

more than ordinary negligence. 

D. Penalty A&ainst Garth Nielson 

Section l lO(c) of the Mine Act provides that, whenever a corporate operator violates a 

mandatory health or safety standard, any agent of such corporate operator who "knowingly 

authorized, ordered, or carried out such violation" shall be subject to a civil penalty. 30 U.S.C. § 

820(c). The Com.mission held that "knowingly" means "knowing or having reason to know." 

Kenny Richardson, 3 FMSHRC 8, 16 (Jan 1981); ajf d 689 F.2d 623 (6th Cir. 1982). "A person 

has reason to know when he has such information as would lead a person exercising reasonable 

care to acquire knowledge of the fact in question or to infer its existence." Richardson, 3 

27 FMSHRC 590 
FMSHRC at 16. "If a person in a position to protect employee safety and health fails to act on 

the basis of information that gives ~im knowledge or reason to know of the existence of a 

violative condition, he has acted knowingly and in a manner contrary to the remedial nature of 

the statute." Id. "In order to establish section llO(c) liability, the Secretary must prove only that 

the individual knowingly acted not that [he] knowingly violated the law." BethEnergy Mines, 

Inc., 14 FMSHRC 1232, 1245 (August 1992). 

Genwal is a corporate operator and Mr. Nielson was an agent of the corporation. In 

addition, as discussed above, the corporate operator violated section 72.630. I find that Niel~on 

knowingly authorized the violation of section 72.630. He knew that drill dust was or would 

shortly be blowing through the longwall where miners were working. He had walked through 

drill dust being created by a stoper drill on the graveyard shift. He testified that the dust was 

readily apparent and that he could see dust for 40 to 50 feet from the drill. From where he was 

positioned when Inspector Gunderson arrived on the day shift, he should have been able to see 

and hear the first drilJ operating. A person exercising reasonable care would have realized that 

the drill dust was not being controlled by the face ventiJation because the dust was not carried 

away from miners in the area. Although he apparently believed that the 53,500 cfm of air 

provided to the longwall section was sufficient to dilute the dust to meet MSHA' s threshold limit 

value for respirable dust, he had reason to know that the dust was not being carried away from 

miners as required by the standard. Hazardous short term exposures to silica-bearing dust were 

highly likely. I credit the testimony of Jensen that miners had complained to him about dust 

control from stoper drills on the longwall and that he discussed this issue with management while 

Nielson was present. (Tr. 81-82). Nielson also attended a training class when Jensen instructed 

miners to use water on stoper drills. (Tr. 80-81). Thus, Nielson knew or had reason to know that 

face ventilation was not sufficient to carry drill dust away from miners and that using water was 

th~ most practical method to control dust. In reaching this conclusion, I did not give weight to 

the Secretary's evidence concerning the conversation between Nielson and Inspector Gunderson 

at the time the order was issued. I believe that when Nielson acknowledged that there was a 

problem, he was most likely confirming that, if Inspector Gunderson was issuing an order of 

withdrawal, then there was a problem that must be corrected. 

The Secretary cites U.S. v. Gibson, 409 F.3d 325, 336 (6th Cir. 2005), for the proposition 

that "mine superintendents or foremen can be said to have knowingly authorized, ordered, or 

carried out violations of the [Mine Act] when they enter mines and observe violations but do 

nothing to stop or correct them." (S. Br. 17). In that criminal case, a mine superintendent and 

foreman were charged with "authorizing, ordering, and carrying out the violation of the mining 

regulation that requires the mine operator to adopt and follow a ventilation plan." Id. 

Apparently, ventilation curtains were down at the face and throughout the mine so that there was 

insufficient ventilation at the face. Id. at 335. Such a violation would be obvious to anyone with 

even a casual understanding of underground coal mining. I believe that the language quoted by 

the Secretary is a little too broad to fit all circumstances. I am not basing my conclusion on the 

mere fact that Nielson was at the mine and observed the conditions. I find that the Secretary 

established that Nielson failed to act on the basis of specific relevant facts within his knowledge 

27 FMSHRC 591 
that should have given him reason to know that the mine was in violation of section 72.630. 

Nielson's conduct demonstrated aggravated conduct constituting more than ordinary negligence" 

on the part of a mine superintendent. BethEnergy Mines, Inc., 14 FMSHRC at 1245. 

Ill. APPROPRIATE CIVIL PENALTIES 

Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. The record shows that the Crandall Canyon Mine had a history of 

about 205 paid violations in the two years prior to May 29, 2003. (Ex. G-1). The parties 

stipulated that Genwal is a large mine operator. The order was abated in good faith. The 

violation was serious and Genwal was negligent. The penalty assessed in this decision will not 

have an adverse effect on Genwal's ability to continue in business. Based on the penalty criteria, 

I find that a penalty of $6,000.00 is appropriate for this violation. 

The Secretary did not present evidence with respect to the penalty criteria for Mr. 

Nielson. See Sunny Ridge Mining Co. , 19 FMSHRC 254, 272 (Feb. 1997). There is no evidence 

that Mr. Nielson has a history of previous violations of the Mine Act. There is no evidence 

concerning his income and family obligations. The parties stipulated that the proposed penalty 

will not affect his "ability to continue in business." (Ex. J-1 I)[ G). The violation was serious, 

Nielson's negligence was high, and he was the mine superintendent. He rapidly abated the 

violation in good faith. Based on the penalty criteria, I find that a perialty of $200.00 is 

appropriate and that Nielson has the ability fo pay the penalty. 

IV. ORDER 

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

WEST 2004-453 (Genwal) 

7616128 

7613354 

WEST 2004-454 (Garth Nielson) 

7616128 

72.630(a) 

75.380(f)(3)(iii) 

72.630(a) 

$6,000.00 

Vacated 

$200.00 

For the reasons set forth above, Order No. 7616128 is AFFIRMED_as written and 

Citation No. 7613354 is VACATED. Genwal Resources, Inc., is ORDERED TO PAY the 

Secretary of Labor the sum of $6,000.00 within 30 days of the date of this decision. 

27 FMSHRC 592 
For the reasons set forth above, Garth Nielson violated section 110( c) of the Mine Act 

and he is ORDERED TO PAY the Secretary of Labor the sum of $200.00 within 30 days of the 

date of this decision. 

Richard W. Manning 

Administrative Law Judge 

27 FMSHRC 593 
Distribution: 

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Certified Mail) 

Noelle Holladay, Esq.,Wyatt Tarrant & Combs, 250 West Main St., Suite 1600, Lexington, KY 

40507 (Certified Mail) · 

RWM 

27 FMSHRC 594 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington DC, 20001-2021 

Telephone: (202) 434-9958 

SECRETARY OF LABOR, 

l\.1INE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA), 

·Petitioner 

v. 

JAMES CARNEY CONSTRUCTION, 

Respondent 

Fax: (202) 434-9949 

August 15, 2005 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2005-51-M 

A. C. No. 24-02196-39845 

JC Crusher 

ORDER DENYING REQUEST TO REOPEN 

ORDER TO PAY 

This case is before me pursuant to an order of the Commission dated April 18, 2005, 

remanding this matter for further consideration and determination as to whether the operator, 

James Carney Construction("Carney") is entitled to relief under Rule 60(b) of the Federal 

Rules of Civil Procedure.' In particular, Rule 60(b)(l) provides relief from a final judgment in 

cases where there has been a "mistake, inadvertence, surprise, or excusable neglect." Fed. R. 

Civ. P. 60(b)(l). 

This matter arose because Carney failed to answer the Secretary of Labor's 

("Secretary") petition for assessment of penalty, and then failed to answer my subsequent show 

cause order for the failure answer the Secretary's penalty petition. Carney claims he never 

received the February 2, 2005 show cause order, stating he was out of town on that date. The 

Secretary indicates that she does not oppose the request to reopen. 

The Commission has stated that default is a harsh remedy, and if the defaulting party 

makes a showing of adequate or good cause for failing to timely respond, the case may be 

reopened. Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept.1995). In addition, the 

Commission has held pleadings drafted by pro se litigants to a less stringent standard than that 

applied to documents drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 

(Aug. I992)(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). 

Despite Carney's claim of having never received the show cause order, his signature is 

on the receipt for the show cause order. From Carney's letter, it appears he disagreed with the · 

imposition of the fine, felt that he did not have to pay it, and, thus, ignored court documents 

1

While the Commission is not obligated to adhere to the Federal Rules of Civil 

Procedure, the Commission has found guidance and has applied "so far as practicable" 

Rule 60(b ). 29 C.F.R. § 2700. l (b ). 

27 FMSHRC 595 
sent to him. The Commission makes great efforts to afford due process to all parties even when 

pleadings are not crafted as artfully or clearly as they could or should be. However, a party's 

blatant disregard for Commission procedure does not warrant Rule 60(b) relief. 

Accordingly, this case is dismissed and the Respondent is ORDERED to pay the 

proposed penalty assessment of $475.00. 

Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22nd Floor, Arlington, VA 22209-2296 

James Camey, Owner, James Camey Construction, P.O. Box 928, Glasgow, MT 59230 

/fb 

27 FMSHRC 596 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington DC, 20001-2021 

Telephone: (202) 434-9958 

Fax:(202)434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADJ\.1INISTRATION (MSHA), 

·Petitioner 

v. 

DEWAYNE HERREN, 

Respondent. 

August 17, 2005 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2004-311-M 

A. C. No. 48-01497-06604 A 

General Chemical Mill 

ORDER DENYING REQUEST TO REOPEN 

ORDER TO PAY 

This case is before me pursuant to an order of the Commission dated October 6, 2004, 

remanding this matter for further consideration and determination as to whether the miner, 

De Wayne Herren, is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure.' 

In particular, Rule 60(b)(l) provides relief from a final judgment in cases where there has been a 

"mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(l). 

This matter arose because Herren failed to notify the Secretary of Labor ("Secretary") that 

he wished to contest the proposed penalty assessed to him for an alleged violation of Section 

110( c) of the Mine Act within 30 days of receipt of the proposed penalty assessment. In his 

request for relief, Herren claims he did not defend against the proposed penalty because of 

inadvertence or mistake. He contends he was informed by an MSHA investigator that he would 

need to be interviewed prior to any hearing taking place. However, Herren did not give an 

interview, believing "the whole thing would then go away." Resp. Affidavit at 2. The Secretary 

filed a response to Herren's request to reopen, arguing that Herren seems to have deliberately 

avoided an interview with MSHA, which, if true, undermines Rule 60(b). Sec. Mot. at 2. The 

Secretary also requested "that the Commission remand the case to an administrative law judge 

with instructions to provide both parties with an opportunity to present relevant evidence and 

legal arguments." Sec. Mot. at 2-3. 

Upon review of the record and the Secretary's request, on March 24, 2005, I issued an 

order to the Secretary to submit a statement indicating the type of additional information she was 

seeking from Herren and the type information she intended to submit. Accordingly, the Secretary 

filed a response, requesting that Herren' s request be denied, claiming MSHA employees made 

'While the Commission is not obligated to adhere to the Federal Rules of Civil 

Procedure, the Commission has found guidance and has applied "so far as practicable" Rule 

60(b). 29 C.F.R. § 2700.l(b). 

27 FMSHRC 597 
several attempts to contact Herren, either by telephone, in person, or by letter, to no avail. Sec. 

Reply Apr. 18 Brief at 3-4. Moreover, in a sworn affidavit, the investigator claims he never told 

Herren that a civil penalty hearing could be avoided by Herren' s refusal to be interviewed by an 

MSHA official. Thomas Marvke Affidavit at 2. The Secretary argues that Herren's deliberate 

refusal to respond to the proposed penalty assessment is not grounds for Rule 60(b) relief. Sec. 

Reply Apr. 18 Brief at 2-3. 

In response, Herren, through counsel, contends he "did not understand the consequences 

of his actions, but rather this was his way of defending himself when he knew that he was not at 

fault in the subject accident." Resp. Apr. 29 Brief at 2. Herren argues that "defaults are not 

favored," and that "when ... the defending party.for whatever reason, and in particular through 

inadvertence or mistake, fails to defend himself and yet maintains that he has a good defense to 

the allegations, then justice requires that the defendant be allowed to present his defense." Id. 

(emphasis added). 

Based upon the arguments presented, I deny Herren's request to reopen the penalty 

assessment. While Herren accurately argues that defaults are not favored, he is wholly inaccurate 

in stating that if ''for whatever reason" he "fails to defend himself and yet maintains that he has a 

good defense ... then justice requires that [he J be allowed to present his defense." Justice does 

not require an adjudicative body to ignore or excuse a litigant's conscious decision to circumvent 

the judicial process. 

Herren admits avoiding MSHA officials for the purpose of making his case "go away." I 

do not believe the MSHA investigator suggested to Herren in any way that dodging the interview 

would be a strategy for averting payment or a hearing. Further, I am not convinced that Herren 

did not understand the consequences of his actions. But even if he did not, a party's blatant 

disregard for Commission procedure does not warrant Rule 60(b) relief. Herren was provided an 

opportunity to question the evidence presented against him, to present his own defense, and to 

have the matter heard before an impartial adjudicator. Mr. Herren chose at his peril to forego this 

process. 

For the foregoing reasons, Herren's request to reopen the penalty assessment is DENIED. 

Herren is ORDERED TO PAY the proposed penalty assessment. 

Chief Administrative Law Judge 

27 FMSHRC 598 
Distribution: (Certified Mail) 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22nd Floor, Arlington, VA 22209-2296 

Frank D. Neville, Esq., Williams, Porter, Day & Neville, P.C., 159 North Wolcott, Suite 400, 

P.O. Box 10700, Casper, WY 82602 

/mvc 

27 FMSHRC 599 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRET ARY OF LABOR, 

.MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

Washington, D.C. 20001 

August 19, 2005 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2004-330-M 

A. C. No. 04-01299-24394 

Docket No. WEST 2004-472-M 

A. C. No. 04-01299-32142 

ORIGINAL SIXTEEN TO ONE :MINE, INC. Sixteen to One Mine 

Respondent 

DECISION 

Appearances: Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of 

Labor, San Francisco, California, on behalf of the Petitioner; 

Michael M. Miller, President, Original Sixteen to One Mine, Inc., Alleghany, 

California, pn behalf of the Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor 

pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq. (1994) the "Act," charging Original Sixteen to One Mine, Inc. (Sixteen to One) with violations 

of mandatory standards and proposing civil penalties for the violations. The general issue before me 

is whether Sixteen to One violated the cited standards and, if so, what is the appropriate civil penalty 

to be assessed in accordance with Section l lO(i) of the Act. Additional specific issues are addressed 

as noted. 

Docket No. 2004-472-M 

Citation No. 6353514 

Citation No. 6353514, issued pursuant to Section 104(d)(l) of the Act, alleges a "significant and 

substantial" violation of the mandatory standard at 30 C.F.R. § 57.4560(a) and charges as follows: 1 

1 Section 104(d)(l) of the Act provides as follows: 

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary 

finds that there has been a violation of any mandatory health or safety standard, and if he also 

27 FMSHRC 600 
The mines portal timber-set entrance at the 800' foot level did not have a fire suppression 

system capable of controlling fire in the early stages. Two holes of the four sprinkler 

heads have been plugged off, the drain plug on the end was missing, and the valve to the 

system was turned off. The portal consists dry timber sets and is considered main fresh 

air intake. Conditions near the mine entrance contribute to discrete hazards of fire 

conditions in that diesel fuel was stored and a combustible building was set up within the 

100' limitations, creating fire and smoke hazards. This condition ·has.been cited twice in 

the last three years along with several verbal warnings to the principal officer in charge. 

The principal officer was fuJly aware of the standard and the warnings which engages him 

in aggravated conduct constituting more than ordinary negligence. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

The cited standard provides that "[f]or at least 200 feet inside the mine portal or collar timber 

used for ground support in intake openings and in exhaust openings that are designated as 

escapeways shall be-

( a) Provided with a fire suppression system, other than fire extinguishers and water hoses, 

capable of controlling a fire in its early stages; or 

(b) Covered with shotcrete, gunite, or other material with equivalent fire protection characteristics; 

or 

(c) Coated with fire-retardant paint or other material to reduce its flame spread rating to 25 or less 

and maintained in that condition." 

The 800 Portal is lined with timber on the ceiling and sides and has .a fire suppression 

sprinkler system running along the roof of the portal. The sprinkler system is designed to have four 

sprinkler heads that are activated whe~ the ambient air reaches a certain temperature. According to 

the credible testimony of Inspector James Weisbeck of the Department of Labor's Mine Safety and 

Health Administration (MSHA), during his inspection of the Sixteen to One Mine on March 10, 

2004, he found that the mine's portal timber-set entrance at the 800 foot level (the 800 Portal) did 

not have a fire suppression system capable of controlling fire in its early stages. His testimony is 

finds that, while the conditions created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to comply with such mandatory 

health or s~ety standards, he shall include such finding in any citation given to the operator 

under this Act. If, during the same inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure of such operator to so comply, he 

shall forthwith issue an order requiring the operator to cause all persons in the area affected 

by such violation, except those persons referred to in subsection (c) to be withdrawn from, 

and to be prohibited from entering, such area until an authorized representative of the 

Secretary determines that such violation has been abated. 

27 FMSHRC 601 
undisputed that two holes of the four sprinkler heads had been plugged off thereby preventing their 

use; that the drain plug at the end of the system was missing thereby denying pressure to the system 

and thereby permitting all of the water in the system to drain out; and that the valve to the system 

was turned off thereby preventing any water from entering the system (See photographic Exhibits 

P-20, P-22 and P-19, respectively). 

At hearing, Respondent's President, Michael Miller, appeared to suggest that, while the 

sprinkler system was adffiittedly not functioning, there was nevertheless a vinyl pipe running through 

the cited area and that heat from a fire would melt the vinyl causing it to burst and dump its water 

on nearby flames. Even assuming, arguendo, that Mr. Miller is an expert in fire suppression 

systems, his bald assertion that a melted vinyl pipe would provide adequate fire protection, is without 

factual support. Without such factual support, I can give his opinion but little weight. It is also 

patently obvious that if the vinyl pipe would melt and burst near the entrance to the mine portal then 

all the water would drain out at that point leaving no water to quench any flames further inby. In any 

event, the undisputed evidence shows that the main valve depicted in the photographic evidence 

(Exhibit P-19) was closed, thereby depriving even the vinyl pipe of water. Accordingly, even the 

purported alternative fire suppression system, based upon the melting of vinyl pipe, would have 

been inoperable. Under the circumstances, I find that Respondent failed to comply with the option 

provided in the cited standard to provide a fire suppression system. 

The cited standard also gives a mine operator the option of coating mine portal timbers with 

fire-retardant paint, but the timbers in the 800 Portal were only partially coated with fire-retardant 

paint. Respondent had been cited on at least three prior occasions (August 1999, May 2001, and 

March 2003) because the fire sprinkler heads were taken off during the winter "freeze and thaw" 

season. It is undisputed that each time these prior citations were issued, Respondent was informed 

that he could comply with this standard if he painted the portal timbers with fire-retardant paint. In 

fact, one year prior to the subject citation, Weisbeck issued a citation at the 800 Portal for a violation 

of the same standard and terminated it when Respondent fixed the sprinkler system. It is undisputed 

that at the time the prior citation was issued, Respondent started painting the timbers in the 800 

Portal but when half the timbers were painted, Respondent ran out of paint and did not complete the 

job. 

Finally, it may reasonably be inferred from the credible record, including the photographic 

evidence, (Exhibits P-20 through P-22), that the operator also failed to comply with the third option 

provided in the cited standard i.e. that it covered the area with shotcrete, gunite or other material with 

equivalent fire protection characteristics. 

The violation was also "significant and substantial" and of high gravity. A violation is 

properly designated as "significant and substantial" if, based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) the Commission 

explained: 

27 FMSHRC 602 
In order to establish that a violation of a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary must prove: (1) the underlying 

violation of a mandatory ~afety 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. 

The third element of the Mathies formula requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in which there is an injury (U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be 

evaluated in terms of continued normal mining operations without any assumptions as to abatement. 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 

8, 12 (January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 1991). 

The gravity was also greatly heightened by the inadequacy of the fire warning system. It is 

undisputed that the stench warning system was not functioning and that the mine telephone system 

was not always capable of providing communication to the underground miners. According to the 

undisputed testimony of Inspector Weis beck, the timber-sets in the cited area were also treated with 

creosote and would cause any fire to be even more gassy. In addition, Weisbeck observed that many 

of the timbers remained without fire-retardant paint. His conclusions that the air was intaking at the 

time he issued the citation and that such smokey conditions could cause serious injuries to the miners 

underground were also reasonable, supported by his credible testimony, and sufficient to find that 

the violation was "significant and substantial" and of high gravity. 

I also find the violation was a result of high operator negligence and "unwarrantable failure". 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This 

determination was derived, in part, from the plain meaning of "unwarrantable" ("not justifiable" or 

"inexcusable"), "failure" ("neglect of an assigned, expected or appropriate action"), and "negligence" 

(the failure to use such care as a reasonably prudent and careful person would ·use, and is 

characterized by "inadvertence", "thoughtlessness", and "inattention"). 9 FMSHRC at 2001. 

Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February 1991). 

The Commission has also considered other factors in determining whether a violation is 

unwarrantable, including the extent of the violative condition, the length of time 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 effort in abating 

the violative condition. Lexicon, Inc., 24 FMSHRC 1014, 1024 (November 2002). Moreover, 

27 FMSHRC 603 
evidence of a prior history of violations may be an aggravating factor for purpose of determining 

whether a violation is the result of an unwarrantable failure because prior citations place operators 

on notice that greater compliance is required. 

In this regard, the operator's agent, Ian Haley, acknowledged to Inspector Weisbeck that he 

was aware that the endcap for the sprinkler system had been missing and he opined that the fire 

suppression system was not functioning because of this defect, i.e. because the water had drained out 

of the open pipe. 2 Since the operator's agent thereby admittedly had actual knowledge of the 

violative condition and took no corrective action, the violation was clearly the result of high 

negligence and "unwarrantable failure." 

Weisbeck also detennined from his inspection of MSHA's file on Respondent's mine that 

Respondent had been cited for the same hazard-sprinkler heads missing and the water valve turned 

off for the fire sprinkler system at the 800 Portal - on three prior occasions. Weisbeck issued the 

latest of these three citations in March 2003, and asked Haley why the painting of the timbers in the 

800 Portal was not completed. It is not disputed that Haley told Weisbeck that they had run out of 

fire-retardant paint and that Miller was not going to buy any more. 

After the March 2003 inspection, Weisbeck inspected Respond~nt' s mine three more times 

and, although there was no violation to cite because the sprinkler system was functional, he noticed 

that Respondent had not completed painting the 800 Portal's timbers with fire-retardant paint. 

During the last of those three visits and in anticipation of another winter "freeze and thaw" season, 

it is undisputed that Weisbeck again brought the incomplete paint job to Respondent's attention and 

Respondent assured him that they would complete the painting of the 800 Portal. 

The evidence thereby establishes that as a result of the prior citations and verbal warnings 

given by Weisbeck and other MSHA inspectors, Respondent knew that in order to comply with the 

cited standard he needed to maintain the fire sprinkler system in a functional condition or to 

completely paint the timbers in the 800 Portal with fire-retardant paint. These factors therefore 

provide an independent basis for finding high negligence and "unwarrantable failure." 

Citation No. 6353511 

Citation No. 6353511 alleges a violation of the standard at 30 C.P.R. § 57.1105l(a) and charges as 

follows: 

The alternate secondary escape route was not inspected for a safe and travelable condition 

along with not being clearly marked to indicate the way of escape. The original secondary 

escape route had a gob wall failure on the 1700 making the route impassible. The alternate 

2 Haley acknowledged at hearings that he was "for MSHA purposes" the operator's mine 

manager. 

27 FMSHRC 604 
route was decided to be on and across the 1300 to the 49 winze in which all the miners have 

not traveled for at least a month or more. Creating hazards of confusion, disorientation, 

entrapment and mine rescue not knowing the designated route. Five miners work in the 

underground mine daily. 

The cited standard, 30 C.F.R. § 57.11051(a), provides, in relevant part, that "[e]scape routes 

shall be-(a) [i]nspected at regular intervals and maintained in a safe, travelable condition ... ". It is 

undisputed that mine manager Haley was aware, at least several days before this citation was issued, 

that the prior designated secondary escapeway (on the 1700 level) had a gob wall failure making the 

route impassable. It is also undisputed that the alternate route, on the 1300 level to the 49 winze, 

contained a hole five to six feet deep and six to eight feet in diameter with only a plank to cross it. 

Weisbeck's testimony is also undisputed that while traveling the 1300-level route the inspection 

party had to "belly crawl" over certain areas. Within this framework of evidence, I have no difficulty 

in finding that the violation is proven as charged. 

The violation was clearly also of a serious nature. Weisbeck interviewed the underground 

miners and found that two were unaware of the newly purported designated secondary escapeway 

at the 1300 level. In addition, there was no marking or signage to indicate that it had been designated 

as the secondary escapeway. Under these circumstances, some miners would not, in certain 

emergencies, find a safe escape route. In addition, as noted by Inspector Weisbeck, rescue teams 

would not know where to look for miners injured or overcome by smoke who might have become 

lost in trying to escape without knowledge of the purported new secondary escapeway. 

I also find that the violation was a result of high operator negligence. Mine manager Haley 

admittedly knew for some time that the previously designated secondary escapeway had become 

blocked by a gob failure and, should have known from having traveled the purported newly 

designated secondary espcapeway, that it was not a safe and suitable route. His negligence, and 

therefore the operator's negligence, it is further enhanced by the fact that not all miners were told 

of the newly designated secondary escapeway on the 1300 level and that no signage or markings 

were in place to identify that route as the secondary escapeway. 

Docket No. WEST 2004-330-M 

Citation No. 6353507 

Citation No. 6353507, as amended, alleges a violation of the standard at 30 C.F.R. § 57.4101 and 

charges as follows: 

No readily visible signs prohibiting smoking and or open flames were posted at the two fifty 

five gallon fuel barrels used for storage of the air compressors fuel supply. The containers 

were not sealed tight and had a 12-volt pump in the opening of the barrel, creating fire or 

explosion hazards in an area near the lower shop and the mine portals air intake area where 

miners work daily. 

27 FMSHRC 605 
The cited standard provides that "[r]eadily visible signs prohibiting smoking and open flames 

shall be posted where a fire or explosion hazard exists". There is no dispute that there were no signs 

prohibiting smoking and or open flames posted at the two 55 gallon fuel barrels used to supply diesel 

fuel to the air compressors as cited. There is also no dispute that the containers were not sealed tight 

and one had a twelve-volt pump in the opening of the barrel. According to the undisputed testimony 

of Inspector Weisbeck, each had a two-inch opening with a three-quarters to one-inch hole in the 

opening. One had an electric cord near the top of the barrel providing power to a twelve-volt pump. 

The credible evidence also establishes that the barrels and the surrounding ground were wet with 

fuel. 

While the operator's witnesses acknowledged that diesel fuel was contained in the barrels 

for at least several days at a time, Mr. Miller, on behalf of the operator, maintained that the barrels 

were not used for storage. However, Miller misconstrues the nature of the violation charged under 

the cited standard. The issue is whether "readily visible signs prohibiting smoking and open flames 

[were] posted where a fire or explosion hazard exists". It is therefore irrelevant whether or not the 

fuel barrels were "used for storage" since it is admitted that they contained combustible fuel with 

potential ignition sources thereby presenting a fire or explosion hazard. 

I accept Inspector Weisbeck's assessment that the violation was unlikely to cause injury or 

illness. Weisbeck testified that conditions were damp and that there was no torch work or grinding 

nearby. Weisbeck also observed that a fire extinguisher was located nearby. He found only 

"moderate" negligence based on an admission by Mr. Haley that the condition was an "oversight". 

I find no reason to modify Weisbeck's findings. 

Citation No. 6353508 

Citation No 6353508 alleges a violation of the standard at 30 C.F.R. § 57.4102 and charges as 

follows: 

Under the air compressor unit located at the lower shop and portal area there was 

combustible liquid spillage and leakage with little fuel puddles up under the unit along with 

fuel oil soaked dirt. There was [sic] several little puddles estimated 3" by 5" that appeared 

reddish in color from the red fuel oil used which appeared to have existed for weeks from 

the saturation levels in the dirt under the unit, creating potential fire and smoke hazards in 

an area close to the air intake of the mine portal. Four to five miners work on the surface 

area and in the underground mine daily. 

The cited standard, 30 C.F.R. § 57.4102, provides that "[f]lammable or combustible liquid 

spillage or leakage shall be removed in a timely manner or controlled to prevent a fire hazard." 

The testimony of Inspector Weisbeck regarding this violation is essentially undisputed. 

According to his credible testimony there were puddles of fuel beneath the compressor unit 

approximately one-quarter inch deep. The area was saturated suggesting to Inspector Weisbeck that 

the condition had existed for some time. According to Weisbeck, the hazard, of low gravity, would 

be from fire or smoke created by ignition of the fuel oil, possibly from a cigarette. He found 

27 FMSHRC 606 
operator negligence to be "moderate" apparently based on the fact that the area had been saturated 

thereby indicating that the condition had existed for some time. While Mr. Miller thought the spills 

were "fresh" because he saw only a few drops of fuel actually fall, I accept the inspector's credible 

testimony and find that the violation is proven as charged but with low gravity and moderate 

negligence. 

Citation No. 6353509 

Citation No. 6353509 alleges a violation of the standard at 30 C.F.R. § 57.4533(a) and charges as 

follows: 

An estimated 8' by 24' foot long trailer building has been set up within 56' feet of the mine 

openings portal and air intake. The building is not of a non-combustible material nor does 

it meet a fire resistance rating of no less than one hour. Creating fire and smoke hazards near 

the mine portal air intake in the event of a fire and wind conditions [sic]. Five miners work 

in the underground mine daily. 

The cited standard, 30 C.F.R. § 57 .4533(a), provides that "[s]urface buildings or other similar 

structures within 100 feet of mine openings used for intake air or within 100 feet of mine openings 

that are designated escapeways in exhaust air shall be-

( a) Constructed of noncombustible materials ... " 

(b) Constructed to meet a fire resistance rating of no less than one hour; or 

(c) Provided with an automatic fire suppression system; or 

(d) Covered on all combustible interior and exterior structural surfaces with noncombustible 

material or limited combustible material, such as five-eighth inch, type "X" gypsum wallboard. 

Inspector Weisbeck's testimony is undisputed that the cited trailer was within 56 feet of the 

mine' s opening portal and was not made of non-combustible material meeting a fire resistant rating 

of no less than one hour. It is also apparent that no automatic fire suppression system was provided 

on the outside of the trailer (Exhibits. P-7 and P-8). It is also clear from Weisbeck's credible 

testimony that this portal was an air intake for at least part of the time. Mr. Miller agrees. The 

violation is accordingly proven as charged. Inspector Weisbeck found that the hazard of an ignition 

and fire causing smoke and moving into the air intake of the mine thereby exposing the underground 

miners to the related dangers, was "unlikely". 

Mine Manager Haley acknowledged that he told Sixteen to One President, Michael Miller, 

that it would be a violation to place the trailer where it was subsequently found by the inspector. 

Haley therefore wanted to place the trailer more than 100 feet away from the mine portal but Miller 

overruled him and had the trailer placed where it was subsequently found by the inspector, only 56 

feet from the portal. Under the circumstances, the violation was intentional and in flagrant disregard 

of the mandatory standard. It was therefore the result of the highest form of "negligence." 

Citation No. 6353510 

Citation No. 6353510 alleges a violation of the standard at 30 C.F.R. § 57.443l(a)(l) and charges 

as follows: 

27 FMSHRC 607 
Unburied combustible liquids are being stored within 75' feet of the mine openings portal and 

air intake. Two 55 gallon barrels of diesel fuel oil were stored for the air compressors 

weekly use at the lower shop area. The barrels had a 12-volt pump inserted into the barrel 

for fueling the compressor along with some spillage or leakage around the compressor and 

barrels. Creating fire and smoke hazards in the event a fire was to break out in the area. Five 

miners work in the underground mine daily. 

The cited standard, 30 C.F.R. § 57.4431, provides, in relevant part, as follows: 

(a) On the surface, no unburied flammable or combustible liquids or flammable gases shall 

be stored within 100 feet of the following: 

(1) Mine openings or structures attached to mine openings. 

There is no dispute that the two 55 gallon barrels of diesel fuel were positioned within 75 feet 

of the mine portaf opening as alleged. While acknowledging that diesel fuel was indeed contained 

in the barrels as cited and that such fuel would remain in the barrels for up to two days at a time, 

Respondent argues that the fuel was nevertheless not "stored" in those barrels and that therefore 

there was no violation of the cited standard. Since the term "store" is authoritatively defined as "a 

source from which things may be drawn as needed" and is synonymous with the term "hold", I find 

Respondent's argument to be without merit. See Webster's Third New International Dictionary 

(Unabridged) 2252 (2002). 

Inspector Weisbeck found no nearby ignition sources and concluded that injuries were 

"unlikely". He cautioned however that should there be fire and smoke, there was a danger of smoke 

inhalation to the miners underground. Weisbeck found only moderate negligence, relying upon the 

statement by Mr. Haley that he was not aware that he could not store fuel within 100 feet of the mine 

portal. 

Citation No. 6353512 

Citation No. 6353512 alleges a "significant and substantial" violatipn of the standard at 30 C.F.R. 

§ 57.4360(a) and charges as follows: 

The fire alarm system was not functional nor capable of promptly warning every person 

working underground in the event of a fire. The Mercaptan Stench Cartridge located at the 

upper shop and old compressor area was totally missing from its location along with the 

likelihood ·of it being in a [sic] air lock in this configuration. The inlet tube from the 

cartridge to the mine air system was in place and it appeared the cartridge had been missing 

for a while. Conditions at the portal present discrete hazards at this time and contribute to 

the likelihood based on continuous mining operations. Five miners work in the underground 

mine daily. 

The cited standard, 30 C.F.R. § 57.4360(a), provides that "[fJire alarm systems capable of 

promptly warning every person underground, except as provided in paragraph (b ), shall be provided 

and maintained in operating condition." The operator does not claim that the exception provided in 

· 27 FMSHRC 608 
paragraph (b) of _the cited standard is applicable herein. 

The stench system was attached to the compressed air flow system to the mine. The system 

can be manually activated by puncturing the stench cartridge, sending a "rotten cabbage" smell 

throughout the mine and thereby signaling the miners to evacuate. There is no dispute that the cited 

stench fire alarm system at the Sixteen to One mine was indeed not functional. It is further 

undisputed that the Mercaptan Stench Cartridge was absent thereby preventing the system from 

operating. According to Inspector Weisbeck, miners and the miners representative told him that they 

had removed an expirep cartridge and had no others to replace it. According to them, the cartridge 

had been missing for weeks. According to Weis beck, even if the cartridge had been replaced there 

would not have been enough pressure to operate the stench system since the compressor was not 

working. · 

Respondent argues that it was not necessary to have the stench warning system in a working 

condition because it could provide warning by way of the mine telephone system. Mine Manager 

Haley testified that either the stench system or the telephone system could be used to warn miners 

of a fire. It is undisputed, however, that the miners were trained in a fire alarm system based on the 

stench system. As noted, the stench system depends upon the transmission by mine ventilation of 

the strong and distinctive odor of rotten cabbage. Since the miners were trained in the use of the 

stench warning in the event of fire and would therefore, in the event of a fire, expect to receive such 

a warning, I find that it was the duty of the mine operator to maintain it in a functioning condition. 

The telephone system would not, in any event, be a reliable means of communicating to all miners. 

Inspector Weis beck testified credibly that, on three or four occasions during his six prior inspections, 

underground miners could not be reached by the mine telephone. 

I also find that the violation was of high gravity and "significant and substantial". I agree 

with the inspector that it was reasonably likely for fatalities to occur since there was no other reliable 

means to alert miners in the event of fire. I further find that the violation was the result of high 

operator negJigence. Sixteen to One President Miller acknow I edged that he had ordered the removal 

of the stench cartridge in the summer of 2003, at least five months before the citation at bar was 

issued. Miller further testified that he then thought there were only outdated _cartridges available at 

the mine. When later told that a working cartridge was found at the mine, MiJler refused to alJow 

it to be installed. 

Civil Penalty Analysis 

In assessing a civil penalty under Section 11 O(i) of the Act, the Commission and its judges 

must consider the operator's history of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid compliance after notification of the 

violation. Sixteen to One has a modest history of violations. It is a small size business and achieved 

appropriate compliance after notice of the violations herein. Gravity and negligence have been 

previously discussed. Any claim regarding the effect of penalties on Respondent's ability to 

continue in business was barred by order of the undersigned judge because of its failure to have 

27 FMSHRC 609 
responded to the Secretary's discovery requests in thi~ regard. · 

ORDER 

Citations No. 6353507, 6353508, 6353509, 6353510, 6353511, 6353512 and 6353514 are affirmed 

and the Respondent is directed to pay the following civil penalties, totaling $4,180.00, within 40 

days of the date of this decision: 

Docket No. WEST 2004-472-M 

Citation No. 6353511-$500.00, Citation No. 6353514-$2,000.00. 

Docket No. WEST 2004-330-M 

Citation No. 6353507-$60.00, Citation No. 6353508-$60.00, Citation No. 6353509-$500.00, 

Citation No. 6353510-$60.00, Citation No. 6353512-$1,000.00. 

·Distribution: (First Class Mail) 

GaryM ick 

Administrative Law Judge 

(202) 434-9977 

Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, 

Suite 1110, San Francisco, CA 94105 

Michael M. Miller, President, Original Sixteen to One Mine, fuc., P.O. Box 909~ 527 Miners Street, 

Alleghany, CA 95910 

/lh 

27 FMSHRC 610 

G:,()· U.S. GOVERNMENT PAINTING OFFICE: 200$-310-984/25303