December 2011
 

TABLE OF CONTENTS
 

COMMISSION DECISIONS AND ORDERS
 

12-02-2011 MELROSE QUARRY & ASPHALT, LLC CENT 2010-754-M Page 2951
 

12-02-2011 JUNCTION CITY MINING COMPANY, SE 2010-1017-M Page 2955
 

L.L.C.
 

12-02-2011 TILCON NEW YORK, INC. YORK 2010-9-M Page 2958
 

12-06-2011 MINING & PROPERTY SPECIALISTS VA 2010-585-R Page 2961
 

CINDY L. CLAPP vs. CORDERO
 

MINING, LLC
 

INC.
 

CORPORATION
 

12-12-2011 HOOVER EXCAVATING, INC. WEST 2011-1334-M Page 2968
 

12-16-2011 FRASURE CREEK MINING, LLC KENT 2010-416 Page 2973
 

12-16-2011 SECRETARY OF LABOR o/b/o WEST 2010-1773-D Page 2977
 

12-16-2011 LAKEVIEW ROCK PRODUCTS, INC. WEST 2010-1856-RM Page 2985
 

12-19-2011 FLORIDA CRI, INC. SE 2009-695-M Page 2993
 

12-19-2011 WINDHAM MATERIALS, LLC YORK 2008-186-M Page 2997
 

12-22-2011 TEXAS ARCHITECTURAL AGGREGATE, CENT 2011-549-M Page 3000
 

12-22-2011 CONTINENTAL COAL, INC. CENT 2011-608 Page 3003
 

12-22-2011 WARRIOR COAL, LLC KENT 2011-749 Page 3006
 

12-22-2011 HIBBING TACONITE COMPANY LAKE 2011-591-M Page 3009
 

12-22-2011 HIBBING TACONITE COMPANY LAKE 2011-854-M Page 3012
 

12-22-2011 BUCKINGHAM SLATE COMPANY VA 2011-625-M Page 3015
 

12-22-2011 ROUND MOUNTAIN GOLD WEST 2011-736-M Page 3018
 

12-22-2011 COPELAND SAND & GRAVEL, INC. WEST 2011-797-M Page 3021
 

12-23-2011 CLARK MINING, INC. KENT 2011-1418 Page 3024
 

i 
ADMINISTRATIVE LAW JUDGE DECISIONS
 

12-05-2011 SECRETARY OF LABOR o/b/o WEST 2010-1773-D Page 3029
 

CINDY L. CLAPP vs. CORDERO MINING, 

LLC
 

12-13-2011 PATTISON SAND COMPANY, LLC, CENT 2012-137-RM Page 3096
 

12-19-2011 STANDARD SAND AND SILICA CO. SE 2011-242-M Page 3151
 

12-20-2011 APEX QUARRY, LLC KENT 2009-10-M Page 3158
 

12-20-2011 CUMBERLAND COAL RESOURCES LP PENN 2009-195 Page 3165
 

12-20-2011 JAYSON TURNER v. NATIONAL WEST 2006-568-DM Page 3183
 

CEMENT COMPANY OF CALIFORNIA
 

12-21-2011 HUMPHREYS ENTERPRISES, INC. VA 2009-99 Page 3199
 

12-22-2011 JIM WALTER RESOURCES, INC. SE 2011-407-R Page 3211
 

12-27-2011 EXCEL MINING, LLC KENT 2009-1368 Page 3221
 

12-27-2011 LEHIGH SOUTHWEST CEMENT WEST 2009-244-M Page 3229
 

12-30-2011 CAM MINING, LLC KENT 2009-444 Page 3246

 ADMINISTRATIVE LAW JUDGE ORDERS 

12-12-2011 HIDDEN SPLENDOR RESOURCES, INC. WEST 2009-0208 Page 3249
 

12-20-2011 ROCK N ROLL COAL COMPANY INC. WEVA 2011-862 Page 3253
 

12-22-2011 SPIRO MINING, LLC CENT 2011-1193 Page 3255
 

12-29-2011 PATTISON SAND COMPANY, LLC CENT 2012-65-RM Page 3260
 

ii 
Review was granted in the following cases during the month of December 2011: 

Secretary of Labor, MSHA v. The American Coal Company, Docket No. LAKE 2008-38. 

(Judge Manning, November 14, 2011) 

Secretary of Labor, MSHA v. The American Coal Company, Docket No. LAKE 2007-171/172 

et al. (Judge Manning, October 24, 2011) 

Review was denied in the following cases during the month of December 2011: 

Secretary of Labor, MSHA v. Emerald Coal Resources, LP, Docket No. PENN 2009-41. (Judge 

Barbour, November 20, 2011) 

iii 
iv
 
COMMISSION DECISIONS AND ORDERS
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 2, 2011 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

: 

: 

Docket No. CENT 2010-754-M 

A.C. No. 23-00759-218908 

ADMINISTRATION (MSHA) : 

: Docket No. CENT 2010-755-M 

v. : A.C. No. 23-00759-218908-02 

: 

MELROSE QUARRY & ASPHALT, LLC : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On July 8, 2011, the Commission received from Melrose 

Quarry & Asphalt, LLC (“Melrose”) two motions submitted by counsel seeking to reopen two 

penalty proceedings and relieve it from the orders of default entered against it.1 

On March 15, 2011, Chief Judge Lesnick issued the Orders to Show Cause and Default 

Orders in response to Melrose’s failure to answer the Secretary’s September 16, 2010 Petitions 

for Assessment of Civil Penalty. In the orders, he ordered the operator to file its answers within 

30 days or it would be in default. 

Melrose asserts that the current management at the quarry is attempting to sort through 

and address three years of citations which were not handled by the previous management. 

Counsel for Melrose states it only received the Secretary’s petitions for assessment of civil 

penalties after contacting the Office of the Solicitor in late May 2011, after the default occurred. 

Melrose further states that, in the future, citations will be dealt with in an efficient manner to 

avoid default or delinquency. The Secretary does not oppose the requests to reopen. 

1

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

consolidate docket numbers CENT 2010-754-M and CENT 2010-755-M, both captioned 

Melrose Quarry & Asphalt, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

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

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

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

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

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

30 U.S.C. § 823(d)(1). Consequently, the judge’s orders here have become final decisions of the 

Commission. 

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

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

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

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

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

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

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

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

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

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Having reviewed Melrose’s requests and the Secretary’s responses, in the interests of 

justice, we hereby reopen the proceedings and vacate the Orders of Default. Accordingly, these 

cases are remanded to the Chief Administrative Law Judge for further proceedings pursuant to 

the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.2 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

2

 Answers to the Secretary’s petitions for assessment of civil penalties were attached to 

Melrose’s motions to reopen, and are deemed to be filed. 

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Distribution: 

Rachel S. Gray, Esq. 

The Todt Law Firm 

212 South Meramee Avenue 

St. Louis, MO 63105 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 2, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. SE 2010-1017-M 

v. : A.C. No. 09-01139-226149

 :

 : 

JUNCTION CITY MINING :

 COMPANY, L.L.C. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 16, 2011, the Commission received from Junction 

City Mining Company, LLC (“Junction”) a motion seeking to reopen a penalty assessment 

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

On March 18, 2011, Chief Judge Lesnick issued an Order to Show Cause and Default 

Order in response to Junction’s failure to answer the Secretary’s August 24, 2010 Petition for 

Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days or 

it would be in default. 

Junction asserts that it did not receive the Order to Show Cause or any other 

correspondence before receiving a delinquency notice regarding this case. The Secretary does 

not oppose the motion to reopen. 

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

justice, we conclude that the Order of Default has not become a final order of the Commission 

because the Order to Show Cause was never received by Junction. Accordingly, this case is 

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

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Junction shall file an Answer 

to the Show Cause Order within 30 days of the date of this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Lorne Whitley, Safety Mngr. 

Junction City Mining Co. 

P.O. Box 615 

2158 Packing House Rd. 

Talbotton, GA 31827 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 2, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. YORK 2010-9-M 

v. : A.C. No. 30-00083-196397 

: 

TILCON NEW YORK, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

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

New York, Inc. (“Tilcon”) a motion submitted by counsel seeking to reopen a penalty 

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

On March 15, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its 

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

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

February 18, 2010 Petition for Assessment of Civil Penalty. 

Tilcon asserts that it filed a timely response to the Show Cause Order which included a 

typographical error in the case docket number. Tilcon further asserts that it reached a settlement 

with the Secretary regarding this case on July 7, 2011. The Secretary does not oppose the 

request to reopen. 

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

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

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

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

29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Sarah T. Brooks, Esq. 

Oldcastle Law Group 

900 Ashwood Parkway 

Suite 700 

Atlanta, Ga 30338-4780 

Sarah.Brooks@oldcastlelaw.com 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 6, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : 

: 

v. : Docket Nos. VA 2010-585-R

 : VA 2011-251 

MINING & PROPERTY SPECIALISTS : 

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

DIRECTION FOR REVIEW AND DECISION 

BY: Jordan, Chairman; Young and Nakamura, Commissioners 

This contest and civil penalty proceeding involves a citation issued by the Department of 

Labor’s Mine Safety and Health Administration (“MSHA”) to Mining & Property Specialists 

(“MAPS”) under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(2006) (“Mine Act” or “Act”). Administrative Law Judge William B. Moran affirmed the 

violation of 30 C.F.R. §75.5121

, and assessed a civil penalty of one dollar. Mining & Property 

Specialists, 33 FMSHRC ___, slip op. at 4-5, Nos. VA 2010-585-R and VA 2011-251 (Oct. 28, 

2011) (“Dec.”) . The Secretary of Labor had sought a penalty of $100 and petitioned the 

Commission for review of the judge’s penalty determination. 

1 The standard at issue provides that: 

All electrical equipment shall be frequently examined, 

tested, and properly maintained by a qualified person to assure safe 

operating conditions. When a potentially dangerous condition is 

found on electric equipment, such equipment shall be removed 

from service until such condition is corrected. A record of such 

examinations shall be kept and made available to an authorized 

representative of the Secretary and to the miners in such mine. 

30 C.F.R. § 75.512 (emphasis added). 

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For the following reasons, we grant the Secretary’s petition for review of the penalty 

imposed, vacate the judge’s decision, and remand this matter for further proceedings consistent 

with our decision. 

I. 

Factual and Procedural Background 

The judge found that “there were no factual disputes in need of resolution.”2 Id. at 3. On 

August 12, 2010, MSHA Inspector Richard Whitt inspected Guest Mountain Mining 

Corporation’s Derby Wilson Mine, an underground coal mine in Wise County, Virginia. PDR at 

3. Inspector Whitt issued a citation pursuant to section 104(a) of the Mine Act to MAPS, a 

contractor at the mine, for failure to make available an electrical examination book for a 

personnel carrier. Id.; Dec. at 2. MAPS contested both the citation and the penalty.3 PDR at 3. 

The citation charged MAPS with “moderate” negligence for the violation, which was not 

deemed “significant and substantial.” Id. At the hearing, MAPS conceded that the examination 

book was not at the mine site, but was maintained at its offices 9.1 miles away. Id.; Dec. at 3. 

MAPS asserted that the book was available for inspection because the offices were nearby and 

on the inspector’s way home from the mine site, and the book could have been faxed to the mine 

site for inspection. Dec. at 3. In explaining why the book was not maintained at the mine site, 

MAPS cited concerns about conditions at the mine creating the potential for deterioration of the 

records. Id. 

The Secretary responded that having the records offsite and delaying production created 

the potential for operators generally to alter records prior to inspection (though no allegation was 

made against MAPS). Id. The Secretary also questioned whether she would have jurisdiction to 

enter MAPS’ offsite offices, which are not a “mine” under the Act, and noted that the miners at 

the mine would not have access to a book maintained offsite. Id. 

The judge agreed with the Secretary’s contention that a fair reading of the standard 

implicitly requires the records to be maintained at the mine, and that even if the language of the 

regulation itself did not direct this conclusion, the Secretary’s position on the matter was 

reasonable and was thus entitled to deference. Id. at 3-4. In discussing the operator’s contention 

that offsite records satisfied the requirements of the regulation, he noted the difficulty in 

2

 The judge did not request a transcript of the proceedings, after determining that the 

recording would be kept available, and that a transcript could be ordered indefinitely. 

Dec. at 2 n. 1. While this reflects an admirable resource-consciousness, it does complicate 

review by the Commission. However, the judge’s decision notes the agreement of the parties 

with his characterization of the facts. 

3 MAPS appeared pro se at the hearing. 

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determining, in a principled way, whether offsite records might be close enough to be considered 

“available.” Id. at 4. 

In assessing the penalty, the judge stated that there was no allegation of unsafe equipment 

or that equipment had not been examined and tested as required by the standard. Id. He also 

noted the Secretary’s finding that the violation was not “significant and substantial” and that she 

deemed the negligence to be moderate and the gravity “unlikely.” Id. The judge then held: 

Upon consideration of each of the statutory penalty criteria, the 

Court has taken the above into account and has further considered 

that MAPS had a good faith, though erroneous, interpretation of 

the standard’s requirements. For this first instance of this 

violation, and having taken into consideration MAPS [sic] earnest 

belief that it was in substantial compliance, the Court believes that 

a penalty of $1.00 (one dollar) is appropriate. However, on similar 

facts, future violations by MAPS would not warrant such a 

minimal penalty. 

Id.

 II. 

Disposition 

Section 110(i) of the Mine Act confers upon the Commission the authority to assess all 

civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the 

Commission, in setting penalties shall consider: 

the operator’s history of previous violations, the appropriateness 

of such penalty to the size of the business of the operator charged,

 whether the operator was negligent, the effect on the operator’s 

ability to continue in business, the gravity of the violation, and the

 demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

Under this clear statutory language, the Commission alone is responsible for assessing 

penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) 

(“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we 

find no basis upon which to conclude that [MSHA’s Part 100 Penalty regulations] also govern 

the Commission.”). However, while there is no presumption of validity given to the Secretary’s 

proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s 

proposed assessments must be adequately explained using the section 110(i) criteria. Cantera 

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Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). The judge need not make 

exhaustive findings but must provide an adequate explanation of how the findings contributed to 

his penalty assessments. Id. at 622. This is essential to the process of review. See Hubb Corp., 

22 FMSHRC 606, 612 (May 2000) (stating that findings on criteria need to assure Commission 

and any reviewing court that penalties are appropriate). 

We are unable to determine from the judge’s decision whether the reduction in penalty is 

supported by the application of the statutory criteria. While the Secretary asserts that we should 

simply affirm the penalty she originally proposed based on the judge’s tacit acceptance of some 

of her characterizations of the criteria, PDR at 12-13, we decline to do so. 

Instead, on remand the judge must address each of the statutory criteria.4 The negligence 

criterion merits particular consideration. We cannot ascertain what level of negligence the judge 

ascribed to MAPS and how this affected his penalty determination. The decision points to a 

“good faith, though erroneous” view of the law as a basis for reducing the penalty. Dec. at 4. 

However, in her petition, the Secretary alleges that the inspector testified that on May 11 and 

June 11, 2010, he had spoken with MAPS employees at another mine about the requirement that 

inspection records for the personnel carriers at those mines needed to be maintained at the mine 

site. PDR at 8-9. Because we do not have a transcript of the proceedings, and because the judge 

does not discuss this issue in his decision, we are unable to determine the circumstances 

surrounding these conversations, or whether any contrary evidence was submitted. These 

conversations could be relevant to the issue of whether MAPS had notice of MSHA’s position 

regarding maintenance of inspection records offsite, which could affect the level of negligence. 

On remand, the judge must address this contention. 

4

 Commissioner Young notes that the judge’s decision does not discuss at all the 

operator’s efforts to act promptly and in good faith to abate the violation, despite the Act’s 

requirement that he do so. See 30 U.S.C. § 820(i) (“[T]he Commission shall consider . . . the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance after 

notification of a violation.”) (emphasis added). In this case, the operator offered to have the 

inspection records faxed to the inspector from its office. Dec. at 3. Assuming that MSHA may 

properly require the records to be maintained at the mine site, as the Secretary contends, 

“availability” by facsimile transmission would not comply with the standard, but the offer to 

make them immediately available in this manner might serve as virtually instantaneous 

abatement. The judge must therefore take the abatement factor into account in reassessing the 

penalty. 

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III. 

Conclusion

 Our precedents require that the judge explain how his application of the statutory penalty 

criteria to the facts in each case supports his penalty determination. For the reasons set forth 

above, we vacate the penalty imposed by the judge and remand this matter for further 

proceedings consistent with our decision. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

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Commissioners Duffy and Cohen, dissenting: 

We would affirm the judge’s determination that the penalty should be reduced by $99 as 

well within the discretion accorded him under Commission case law. We agree with the 

majority that a judge is required to sufficiently explain his reasoning when assessing a penalty 

that substantially diverges from that proposed by the Secretary. See Sellersburg Stone Co., 5 

FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (4th Cir. 1984). Here, the judge’s 

departure from the Secretary’s proposed penalty was clearly occasioned by the judge’s 

conclusion regarding the operator’s negligence, which itself is supported by substantial evidence, 

and his giving greater weight to that penalty factor, which Commission case law plainly permits 

him to do. See Spartan Mining Co., 30 FMSHRC 699, 724, 725 (Aug. 2008) (upholding judge’s 

increase of Secretary’s proposed penalty of $3,700 to $30,000 because judge explained his 

disagreement with Secretary’s conclusions as to gravity and negligence and gave those factors 

increased weight). 

The judge based his negligence analysis on the fact that the operator had a good faith 

belief that offering to have the records at issue faxed from the operator’s central office to the 

mine site made those documents “available” for purposes of the regulation. We find that factor 

to be dispositive of the issue as to whether a penalty reduction from the level proposed by the 

Secretary was justified. Indeed, it is clear that the judge provided a sufficient basis for finding 

little or no negligence in light of the operator’s contention that the records in question were 

electronically “available” in conformance with the intent of the standard. 

In any event, we see no value to prolonging this matter when we are satisfied that a 

justifiable exercise of judicial discretion exists on the facts and the law. 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

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Distribution 

Harry W. Meador, II, President 

Mining & Property Specialist, Inc. 

1912 Wildcat Road 

Big Stone Gap, VA 24219 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge William Moran 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 12, 2011

 SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. WEST 2011-1334-M 

: A.C. No. 35-03510-237487

 :

 : Docket No. WEST 2011-1335-M 

v. : A.C. No. 35-03510-248691

 :

 : Docket No. WEST 2011-1425-M 

: A.C. No. 35-03510-190325 

: 

HOOVER EXCAVATING, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 9, 2011, and August 31, 2011, the Commission 

received from Hoover Excavating, Inc. (“Hoover”) three motions made by counsel seeking to 

reopen three penalty assessments that had become final orders of the Commission pursuant to 

section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

1

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

consolidate docket numbers WEST 2011-1334-M, WEST 2011-1335-M and WEST 

2011-1425-M, all captioned Hoover Excavating, Inc., and involving similar procedural issues. 

29 C.F.R. § 2700.12. 

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

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

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

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

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

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

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

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

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

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

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

The record indicates that proposed assessment No. 000237487 became a final order of 

the Commission on December 16, 2010. A notice of delinquency was mailed on February 10, 

2011. Proposed assessment No. 000248691 became a final order of the Commission on April 

14, 2011. A notice of delinquency was mailed on May 31, 2011. Both motions to reopen were 

filed on August 3, 2011. 

Proposed assessment No. 000190325 was delivered on July 14, 2009, signed for by R. 

Hoover, and became a final order of the Commission on August 13, 2009. A notice of 

delinquency was mailed on September 30, 2009, and the case was referred to the U.S. 

Department of Treasury for collection on January 21, 2010. The motion to reopen was filed on 

August 29, 2011. 

In all three cases, Hoover asserts that its owner was away from the office and relied on 

his assistants to file the paperwork correctly. Hoover further states that its owner was unable to 

confirm that the contests were filed in a timely manner. 

The Secretary opposes the requests to reopen and notes that the operator makes no 

showing of exceptional circumstances that warrant reopening. The absence of any internal 

procedure to confirm that the required paperwork was filed does not constitute an adequate 

excuse. Moreover, the Secretary notes the operator’s failure to explain why it waited 

approximately two months to two years after it was notified of its delinquency to request 

reopening. 

In its reply to the Secretary’s opposition, Hoover states that it was under the reasonable 

belief that the citations were properly contested. In his affidavit, Hoover’s owner further claims 

that he was never notified that the contests were untimely, until a contractor informed him of his 

delinquent citations. 

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

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

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

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

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

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

conclude that the failure to follow up on the proposed assessments to see that they were properly 

processed and timely contested represents an inadequate or unreliable internal processing 

system, as the Secretary has alleged.2 Sloss Industries, Corp. v. Eurisol, 488 F.3d 922, 935-36 

(11th Cir. 2007); Gibbs v. Air Canada, 810 F.2d 1529, 1537 (11th Cir. 1987). We also note that 

this type of failure appears to be part of a pattern for Hoover, as shown by the fact that the same 

failure occurred three times in the past two years. 

Moreover, in considering whether an operator has unreasonably delayed in filing a 

motion to reopen, we find relevant the amount of time that has passed between an operator’s 

receipt of a delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left 

Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC at 1316-

17 (holding that motions to reopen filed more than 30 days after receipt of notice of delinquency 

must explain the reasons why the operator waited to file a reopening request, and lack of 

explanation is grounds for the Commission to deny the motion). Here, the unexplained delay in 

responding to MSHA’s delinquency notice amounted to six months in proposed assessment No. 

000237487. The operator also waited two months in proposed assessment No. 000248691 

before seeking relief. Hoover has not provided an explanation for filing its motions to reopen 

more than 30 days after receiving the delinquency notices. 

Finally, we have also held that a Rule 60(b) motion shall be made within a reasonable 

time, and for reasons of mistake, inadvertence, or excusable neglect under subsections (1), (2), 

and (3) of the rule, not more than one year after the judgment, order, or proceeding was entered 

or taken. The motion to reopen in the case of proposed assessment No. 000190325 was filed 

more than a year after it became a final order. Therefore, with regard to proposed assessment 

No. 000190325, Hoover’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 

(Oct. 2004). 

2

 We have considered the operator’s contention that since one citation in assessment No. 

000248691 was in “contest mode” then the citation at issue here must have been timely 

contested. We find this argument unavailing. 

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

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

deny its motions with prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Katie Ireland, Esq. 

Ireland & Ireland, P.C. 

P. O. Box 273 

Banks, OR 97106 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance, 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor, 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 16, 2011 

SECRETARY OF LABOR, : Docket No. KENT 2010-416 

MINE SAFETY AND HEALTH : A.C. No. 15-19310-205377 

ADMINISTRATION (MSHA) : 

: Docket No. KENT 2010-417 

v. : A.C. No. 15-19310-205377

 :

 : 

FRASURE CREEK MINING, LLC : 

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

ORDER 

BY THE COMMISSION: 

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

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

Creek Mining, LLC (“Frasure”) motions made by counsel seeking to reopen two penalty 

assessment proceedings and relieve it from the orders of default entered against it.1 

On March 15, 2011, Chief Judge Lesnick issued two Orders to Show Cause and Orders 

of Default in response to Frasure’s failure to answer the Secretary’s January 25, 2010 Petitions 

for Assessment of Civil Penalty. The judge ordered the operator to file its answers within 30 

days or it would be in default. 

Frasure asserts that it did not receive the Orders to Show Cause or the Secretary’s 

previously filed Petitions for Assessment of Civil Penalty because they were apparently sent to 

Frasure’s corporate office. Frasure had asked MSHA to serve the petitions on its counsel, and 

counsel had entered an appearance in a related contest proceeding before the Commission. 

Frasure further asserts that it was not aware the petitions were filed until it received the 

delinquency notice dated July 29, 2011. The Secretary does not oppose the motions to reopen. 

1

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

consolidate docket numbers KENT 2010-416 and KENT 2010-417, both captioned Frasure 

Creek Mining, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

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

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

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

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

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

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

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

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

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

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We conclude that relief under Rule 60(b) is warranted in these cases because the Orders 

to Show Cause were inadvertently sent to Frasure’s corporate office, instead of to its counsel as 

it had anticipated. Consequently, having reviewed Frasure’s request and the Secretary’s 

response, in the interest of justice, we hereby reopen these proceedings and vacate the Orders of 

Default. Accordingly, these cases are remanded to the Chief Administrative Law Judge for 

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

Part 2700. Frasure shall file an Answer to the Show Cause Orders within 30 days of the date of 

this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Christopher D. Pence, Esq. 

Guthrie, & Thomas, PLLC 

500 Lee Street, East, Suite 800 

P.O. Box 3394 

Charleston, WV 25333 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 16, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), :

 on behalf of CINDY L. CLAPP : Docket No. WEST 2010-1773-D

 : 

v. :

 : 

CORDERO MINING, LLC : 

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

ORDER GRANTING MOTION FOR STAY IN PART 

BY: Jordan, Chairman; Duffy, Young, and Nakamura, Commissioners 

This proceeding involves a complaint of discrimination filed by the Secretary of Labor on 

behalf of Cindy L. Clapp under section 105(c) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), against Cordero Mining, LLC 

(“Cordero”). See 30 U.S.C. § 815(c). On May 4, 2010, Clapp filed a complaint with the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that Cordero 

had terminated her employment in retaliation for Clapp’s exercise of her rights under section 

105(c). After MSHA’s initial investigation of Cordero’s complaint, the Secretary filed an 

Application for Temporary Reinstatement pursuant to section 105(c)(2) of the Act on behalf of 

Cordero in Commission Docket No. WEST 2010-1314-D. 

On June 24, 2010, prior to a hearing on the application, the parties filed a Joint Motion to 

Approve Settlement which requested that Clapp be immediately economically reinstated under 

the same terms of employment as if her employment had not been terminated on March 18, 

2010. Docket No. WEST 2010-1314-D, Unpublished Order at 1 (June 28, 2010) (ALJ). The 

judge soon thereafter ordered economic reinstatement per the terms of the settlement. Id. at 2. 

In the motion, the parties stated that they agreed that “Clapp’s temporary reinstatement shall 

expire only after any Decision or other similar order from the Federal Mine Safety and Health 

Review Commission becomes a final order that is not appealed by the Secretary of Labor or 

Respondent.” Joint Mot. to Approve Settlement at 4. 

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After a further investigation into the merits of Cordero’s discrimination complaint, on 

September 7, 2010, the Secretary filed a complaint in the instant proceeding requesting that the 

judge conclude that Clapp had been unlawfully discharged. The Secretary sought reinstatement 

for Clapp to her former position, lost wages from March 18, 2010, for the miner, expungement of 

the circumstances involving Clapp’s discharge from her personnel file, and the assessment of a 

$20,000 civil penalty against Cordero, as well as other remedial measures designed to address 

Cordero’s violation of the Act. 

A hearing was held and on December 5, 2011, the judge issued a decision. He concluded 

that Cordero violated section 105(c) “by discriminating against and discharging Cindy Clapp and 

otherwise interfering with her safety-complaint rights under the Act.” Docket No. West 2010-

1773-D, Slip op. at 64 (Dec. 5, 2011) (ALJ). The judge ordered Cordero to take “affirmative 

action necessary to effectuate the policies of the Mine Act” within 14 days from the date of his 

order. Id. at 65. Included was the requirement to offer Clapp full reinstatement to her former 

position, to make Clapp whole for her lost earnings, to remove from the mine’s files references 

to the unlawful discharge, to post a copy of the judge’s decision, and to pay a civil penalty of 

$40,000. Id. 

On December 12, 2011, Cordero filed a motion to stay enforcement of the judge’s 

December 5 decision. Cordero contends that the judge’s decision essentially divests the operator 

of its right under section 113(d)(2)(A)(i) of the Mine Act to appeal the judge’s decision within 

30 days and before it becomes a final order of the Commission. See 30 U.S.C. § 

823(d)(2)(A)(i). The operator also asserts that the judge’s decision violates the terms of his 

earlier temporary reinstatement order because it, in effect, dissolves that order before the entry of 

a final order by the Commission in this proceeding. Cordero requests that the stay extend 14 

days beyond the Commission’s final determination in this matter, and that the Commission order 

the existing economic reinstatement to continue until that date. 

The Secretary does not oppose the motion for stay. On December 16, 2011, in response 

to the Commission’s request, Ms. Clapp submitted her views. While her statement did not 

directly address Cordero’s motion, she did inform the Commission that she felt that the operator 

“has had more than enough time to deal with this matter.” 

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Having considered the parties’ submissions and the terms of the Mine Act, we hereby 

grant the motion in part and stay enforcement of the judge’s December 5 decision as follows. In 

the event that Cordero does not file a Petition for Discretionary Review (“PDR”) of the judge’s 

decision, the actions that the judge’s decision requires Cordero to take shall be taken by the 

operator no later than 17 days after the dates the judge specified in his decision. In the event that 

Cordero files a PDR, the stay of enforcement of the judge’s decision will automatically extend 

an additional 10 days while the Commission considers Cordero’s petition. In order to obtain a 

stay any longer than that, Cordero’s PDR must be accompanied by an application for stay 

pending appeal to the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner 

/s/Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

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Commissioner Cohen, dissenting: 

I respectfully dissent from my colleagues’ granting of a stay to Cordero Mining, LLC. 

On December 5, 2011 Judge Thomas P. McCarthy issued a 66-page Decision and 

Order involving a complaint of discrimination under section 105(c) of the Mine Act. 30 U.S.C. 

§ 815(c). The complainant, Cindy Clapp, is a shovel operator with 28 years of experience as a 

miner. Judge McCarthy noted that Ms. Clapp’s “co-workers and managers consistently lauded 

her as a very safe and productive shovel operator, who set the standard.” Slip op. at 4. The 

judge found that after Cordero brought in new supervisors for Ms. Clapp’s crew, between 

February 2009 and March 2010, Ms. Clapp repeatedly made complaints about safety to Cordero, 

and was met by refusals and anger on the part of her supervisors. These confrontations about 

unsafe working conditions escalated in March 2010 and, according to the judge, included 

Cordero’s intimidation of Ms. Clapp and another miner who joined with her in making safety 

complaints. On March 18, 2011 Cordero terminated Ms. Clapp’s employment because of 

alleged insubordination. According to Judge McCarthy, Cordero also retaliated against the 

miner who had joined Ms. Clapp in making safety complaints. 

Judge McCarthy concluded that Ms. Clapp had engaged in protected activity under the 

Mine Act, that Cordero took adverse action against her after 28 years of service, and that the 

adverse action was motivated by retaliatory animus against Ms. Clapp’s safety complaints. The 

judge further concluded that the reason proffered by Cordero for firing Ms. Clapp – her alleged 

insubordination – was a pretext. 

Having concluded that Cordero violated the Mine Act in firing Ms. Clapp, Judge 

McCarthy ordered Cordero to cease and desist from discharging or otherwise discriminating 

against Ms. Clapp or any other miner because they have engaged in protected activity, and from 

interfering with miners in the exercise of rights guaranteed them by section 105(c)(1) of the 

Mine Act. The judge also ordered that within 14 days of the Order, Cordero must take 

affirmative action including the reinstatement of Ms. Clapp to her former job with back pay, the 

removal from its files of any reference to the unlawful discharge of Ms. Clapp, the payment of a 

civil penalty to the Secretary of Labor in the amount of $40,000 (double what the Secretary had 

proposed), and the posting of the judge’s Decision and Order for 60 consecutive days in 

conspicuous places including all places where notices to miners are customarily posted. In 

making this Order, Judge McCarthy stated that he was “troubled by the chilling effect that 

Clapp’s discharge has had on other miners’ willingness to step forward and engage in protected 

activity under the Act.” Slip. op. at 64. In this context the judge noted that one subpoenaed 

witness testified that she was “terrified” to testify against Cordero because of fear of retaliation, 

Slip. op. at 63 n.52, and that two other subpoenaed witnesses “broke down in tears on the 

witness stand for fear of Respondent’s retaliation against them.” Slip. op. at 64. 

On December 12, 2011 Cordero filed a motion to stay enforcement of Judge McCarthy’s 

Order. 

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The Commission recognizes that a stay constitutes “extraordinary relief” and requires the 

party seeking the stay to satisfy the following factors: (1) likelihood of prevailing on the merits 

of the appeal; (2) irreparable harm if the stay is not granted; (3) no adverse effect on other 

interested parties; and (4) a showing that the stay is in the public interest. Stillwater Mining Co. , 

18 FMSHRC 1756, 1757 (Oct. 1996). Cordero’s motion for a stay makes no assertion that it will 

prevail on appeal, no assertion of irreparable harm, and no assertion that a stay is in the public 

interest. In the absence of assertions which the Commission requires, the stay should be denied. 

Cordero’s motion to stay does make the claim that “The Requested Stay Will Not Harm 

Complainant,” arguing that the economic reinstatement order will still be in effect. Mot. at 5. 

However, Ms. Clapp, in her statement to the Commission regarding the stay, recounts in detail 

the devastating effect of the firing on her and her family for two years, and states that “Cordero 

has had more than enough time to deal with this matter.” Statement at 2. Ms. Clapp also states: 

I have been terminated for nearly two years and the co-workers 

that came forward hoping to make a difference in the workplace 

for safety feel that we can’t make a difference, that nothing has 

changed at work and that it is over and that we aren’t protected. 

Id. at 1. This is a remarkable statement of the futility felt by the Cordero miners in their attempts 

to vindicate rights guaranteed to them by the Mine Act. Moreover, Ms. Clapp’s statement is 

entirely consistent with Judge McCarthy’s findings and conclusions. 

It is clear to me that there is no basis for delaying the provisions of the judge’s order 

which require that Ms. Clapp’s personnel file be purged of references to her unlawful discharge, 

and that the judge’s Decision and Order be posted in conspicuous places including all places 

where notices to miners are customarily posted. With regard to the former provision, the judge 

noted in his Decision that Ms. Clapp has encountered difficulty finding other work since her 

firing because of what is contained in her personnel file at Cordero. Slip op. at 59, 64. With 

regard to the latter provision, the findings by Judge McCarthy about Cordero’s intimidation of, 

and retaliation against, its miners for voicing safety concerns, together with Ms. Clapp’s 

statement to the Commission regarding her co-workers’ feelings about their inability to make a 

difference in the workplace for safety compel the conclusion that the posting of Judge 

McCarthy’s Decision and Order should not be stayed.1 

1

 In its motion for stay, Cordero states that Judge McCarthy made “significant demands” 

upon it: 

Hypothetically, and without presupposing a particular outcome, 

what would happen if the Review Commission decided to take the 

case on discretionary review and subsequently reversed ALJ 

McCarthy’s decision? At that point, the entire “bell” would need 

(continued...) 

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Nor has Cordero shown a basis for staying the provisions of the Order which require 

Cordero to reinstate Ms. Clapp to her job at the mine. The granting of a stay on reinstatement 

presupposes that the economic reinstatement which Ms. Clapp has received pending the issuance 

of the judge’s Decision and Order is the equivalent of having her job back, with the right and 

opportunity to work for her paycheck. However, it must be recognized that Ms. Clapp has been 

receiving economic reinstatement because the Secretary sought temporary reinstatement 

pursuant to section 105(c)(2) of the Mine Act. The parties then settled this issue by filing a Joint 

Motion to Approve Settlement providing for economic reinstatement – Ms. Clapp would receive 

her pay and benefits but would not report to work. Obviously, Cordero made the decision to 

enter into this settlement – and thus pay Ms. Clapp for not working – because it did not want her 

at the mine. Pursuant to Judge McCarthy’s Decision and Order, Ms. Clapp is now entitled to full 

reinstatement, not merely temporary reinstatement or economic reinstatement. 

The nub of Cordero’s motion to stay is the argument that the order with its 14-day 

provisions is invalid because section 105(c)(2) of the Mine Act provides that: 

The Commission shall afford an opportunity for a hearing . . . and 

thereafter shall issue an order, based upon findings of fact, 

affirming, modifying, or vacating the Secretary’s proposed order, 

or directing other appropriate relief. Such order shall become final 

30 days after its issuance.

 30 U.S.C. § 815(c)(2). Cordero also cites section 113(d)(1) of the Mine Act which states: “The 

decision of the administrative law judge . . . shall become the final decision of the Commission 

40 days after its issuance unless within such period the Commission has directed that such 

decision shall be reviewed . . .” 30 U.S.C. § 823(d)(1). Thus, as noted by my colleagues, 

1

(...continued)
 

to be “unrung.” Complainant, after being back at the mine for a
 

time, would need to be terminated again; she and MSHA would
 

need to return the funds paid by Respondent, and a conflicting
 

Decision and Order would need to be posted at the mine. It would
 

be less disruptive to all parties to continue with the status quo until
 

there is a final determination in this matter.
 

Mot. at 6 (emphasis in original). Thus, Cordero seeks to have Judge McCarthy’s Order stayed 

until the entire appellate process is completed. Leaving aside the chutzpah of Cordero’s 

purporting to speak of the “disruption” to “all parties” (including Ms. Clapp), it is clear that 

whatever may be necessary to “unring” the “bell” pales in comparison to the ongoing 

“disruption” and damage – at least according to Judge McCarthy’s Decision and Order, which 

as yet stands unchallenged – caused by Cordero’s pattern of discriminatory actions toward Ms. 

Clapp and her fellow miners. 

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Cordero contends that the judge’s Decision and Order essentially divests it of its right to appeal 

the decision within 30 days and before it becomes a final order of the Commission. 

I reject the contention that the judge’s Order, with its provision for affirmative action 

within 14 days, is inconsistent with the terms of the Mine Act. It certainly does not divest 

Cordero of its right to appeal the decision.2 The provisions of finality in sections 105(c)(2) and 

113(d)(1) should be interpreted to mean that the judge’s order goes into effect, but is not 

enforceable during the period provided for appeal – in other words, no sanctions can be imposed 

during the appeal period for disobedience of the order. But the lack of finality does not mean 

that the order is necessarily ineffective, or that a party must necessarily be excused from obeying 

it. Rather, reading the judge’s order together with the terms of the Mine Act results in a situation 

where, if Cordero chooses to disobey the order, no sanctions can be imposed against it until the 

order becomes final. Obviously, if the Decision and Order should be vacated by the Commission 

or a Court of Appeals, there can be no sanctions for disobeying it. However, if Cordero chooses 

to disobey the order after 14 days of its issuance, sanctions can be imposed for such 

disobedience if and when the order becomes final. The choice is Cordero’s. 

Hence, I dissent from the granting of the stay. 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

2

 It is well established that a party may comply with a court order and still retain the right 

to appeal the order, without its compliance rendering its appeal moot. See, e.g., Mancusi v. 

Stubbs, 408 U.S. 204, 206 (1972), and cases cited therein. 

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Distribution 

Gregory W. Tronson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway, Suite 1600 

Denver, CO 80202 

Kristin R. B. White, Esq. 

Jackson Kelly 

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 

Administrative Law Judge Thomas P. McCarthy 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 16, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: 

v. : Docket No. WEST 2010-1856-RM 

: 

LAKEVIEW ROCK PRODUCTS, INC. : 

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

DECISION 

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) (“Mine Act” or “Act”), and involves a citation alleging that Lakeview Rock 

Products, Inc. (“Lakeview”), violated 30 C.F.R. § 56.9300.1

 Following the submission of cross 

motions for summary decision on stipulated facts,2 Administrative Law Judge Kenneth Andrews 

granted Lakeview’s motion and vacated the citation. 31 FMSHRC __, slip op. at 10, No. WEST 

2010-1856-RM (June 22, 2011) (ALJ). The Commission thereafter granted the Secretary of 

1 30 C.F.R. § 56.9300 provides in relevant part: 

(a) Berms or guardrails shall be provided and maintained 

on the banks of roadways where a drop-off exists of sufficient 

grade or depth to cause a vehicle to overturn or endanger persons 

in equipment. 

(b) Berms or guardrails shall be at least mid-axle height of 

the largest self-propelled mobile equipment which usually travels 

the roadway. 

2

 The parties submitted a Joint Statement of Undisputed Material Facts, which the judge 

set forth in his decision. See 31 FMSHRC at ___, slip op. at 2-4, No. WEST 2010-1856-RM 

(June 22, 2011) (ALJ). 

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Labor’s (“the Secretary”) petition for discretionary review (“PDR”). For the reasons that follow, 

we vacate the judge’s decision and remand this proceeding to the judge. 

I. 

Factual and Procedural Background 

The Secretary and Lakeview stipulated through their counsel to the following undisputed 

material facts: On September 8, 2010, MSHA inspector Mike Tromble (“Inspector”) issued to 

Lakeview Citation No. 6580393, alleging that three pairs of scales that are located at the mine 

did not comply with 30 C.F.R. § 56.9300(b). Jt. Ex. 1. All six of Lakeview’s scales are elevated 

to a height of 31 to 54 inches above ground level, in order for Lakeview employees to perform 

annual maintenance and calibration work on each of the scales. All the scales have eight-inch 

high steel “rub rails” running the length of the scale. The wheelbases of the trucks that use the 

scales range from 22 feet 8 inches to 61 feet 2 inches. The mid-axle height of these trucks range 

from 20 inches to 24 inches. Their loaded weights vary from 19,000 pounds empty to 80,000 

pounds loaded. Between 15 and 100 trucks use the scales daily. 

The parties filed cross-motions for summary decision below. In his decision, the judge 

determined that MSHA’s slide presentation on truck scales is entitled to little, if any, probative 

value in the instant determination, since it did not consider the effect of eight-inch rub rails. Slip 

op. at 7-8. While accepting the guidance of the prior ALJ decisions that scales are a part of a 

mine’s roadways, the judge opined that those decisions are distinguishable from the instant case 

because each of the prior decisions involved scales with no berms, guardrails or guarding of any 

kind. Id. at 8. The judge went on to conclude that the Secretary failed to establish how and/or 

under what circumstances a truck’s front tire would be able to drive up onto and over or through 

the eight-inch high rub rail installed on the scales. Id. at 9. Therefore, the judge concluded that 

the Secretary had not carried her burden of proof and failed to establish by a preponderance of 

the evidence that Lakeview’s scales pose a danger of a vehicle overturning or endangering 

persons in equipment. Id. at 9-10. The judge denied the Secretary’s Motion for Summary 

Decision, granted Lakeview’s Motion for Summary Decision, and vacated Citation No. 6580393. 

Id. at 10. 

II. 

Disposition 

In her PDR, the Secretary argues that the judge erred in determining that elevated truck 

scales provided with eight-inch high rub rails are not subject to 30 C.F.R. § 56.9300(b)’s 

requirement that berms or guardrails at mid-axle height be provided where there is a drop-off of 

sufficient grade or depth to cause a vehicle to overturn or endanger persons in the vehicle. She 

contends that her Program Policy Letter P10-IV-1 (“PPL”) clearly states that rub rails on 

elevated truck scales are not a substitute for mandated guardrails. The Secretary maintains that 

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the adequacy of guarding against overturning and injury is properly evaluated only after it is first 

determined that a drop-off of sufficient grade or height may pose a danger of injury to miners. 

The Secretary asserts that she has established in her motion for summary decision that the 

Lakeview truck scales have a drop-off of sufficient grade or depth to cause a vehicle to overturn 

or endanger persons in equipment. In support of her position, the Secretary provided the 

declaration of Terence M. Taylor, a Senior Civil Engineer with MSHA’s Directorate of 

Technical Support, who performed an engineering analysis using the particular facts in this case 

and concluded that a truck would likely overturn, or its axle and undercarriage would crash down 

upon the decking, if it traveled over the edge of the scales, and that this would likely endanger 

the truck’s occupants. S. Ex. 3. Moreover, the Secretary states that Lakeview’s position was not 

that a truck traveling off the edge of the scale would not overturn or result in injury to the truck’s 

occupants, but that the rub rails were in effect an adequate substitute for the guardrails required 

by the standard because they rendered such an occurrence unlikely. Therefore, the Secretary 

maintains that the evidence presented by her was essentially uncontested, and if it were disputed, 

summary decision would have been improper. 

In its Memorandum in Opposition to the Secretary’s Motion for Summary Decision, 

Lakeview asserted that the Secretary failed to meet her burden of proof by a preponderance of 

evidence that a drop-off exists of sufficient grade or depth to cause a vehicle to overturn. 

Lakeview argued that the Secretary lacked any expert biomechanical analysis showing the 

potential effects on the occupants of trucks driving off the scales. Moreover, Lakeview 

purported there was no evidence that the existing rub rails will not prevent all trucks traveling 

slowly over the scales from driving off of them. Finally, Lakeview questioned the expertise and 

experience of the Secretary’s engineers, stating that they were not fully qualified to testify about 

biomechanics and injuries to individuals, or the adequacy of the rub rails on Lakeview’s scales. 

Summary decisions are governed by Commission Procedural Rule 67, which provides 

that: 

A motion for summary decision shall be granted only if the 

entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material fact; 

and 

(2) That the moving party is entitled to summary decision 

as a matter of law. 

29 C.F.R. § 2700.67(b). The Commission “has long recognized that[] ‘[s]ummary decision is an 

extraordinary procedure,’” and has analogized it to Rule 56 of the Federal Rules of Civil 

Procedure, under which “the Supreme Court has indicated that summary judgment is authorized 

only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’” Energy 

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West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 

FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).3 

In addition, appellate review of summary judgment decisions issued pursuant to Federal 

Rule 56 is de novo, in that the reviewing court applies the same Rule 56(c) standard as the trial 

court. 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2716, at 273-74 (3d 

ed. 1998). Moreover, the Supreme Court has stated that “[w]e look at the record on summary 

judgment in the light most favorable to . . . the party opposing the motion,” and that “the 

inferences to be drawn from the underlying facts contained in [the] materials [supporting the 

motion] must be viewed in the light most favorable to the party opposing the motion.” Poller v. 

Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962). Consequently, the Commission has held that when it reviews a summary 

decision and determines that the record before the judge contained disputed material facts, the 

proper course is to vacate the grant of summary decision and remand the matter for an 

evidentiary hearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316-19 (Aug. 1995); 

Missouri Gravel, 3 FMSHRC at 2473. 

Section 56.9300 provides in relevant part: 

(a) Berms or guardrails shall be provided and maintained on the 

banks of roadways where a drop-off exists of sufficient grade or 

depth to cause a vehicle to overturn or endanger persons in 

equipment. 

(b) Berms or guardrails shall be at least mid-axle height of the 

largest self-propelled mobile equipment which usually travels the 

roadway. 

30 C.F.R. § 56.9300. The requirements of section 56.9300, applied to the facts of this case, can 

be broken down into three elements: (1) whether the scales are part of a roadway; (2) whether 

each scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger 

persons in equipment; (3) whether the scales are equipped with berms or guardrails that are at 

least mid-axle height of the largest self-propelled mobile equipment which usually travels the 

roadway. 

3

 Rule 56(a) provides for the filing of motions for summary judgment and states that: 

The court shall grant summary judgment if the movant shows that 

there is no genuine dispute as to any material fact and the movant 

is entitled to a judgment as a matter of law. 

Fed. R. Civ. P. 56(a). 

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In its Memorandum in Opposition to Respondent’s Motion for Summary Decision, 

Lakeview conceded the first element of section 56.9300 – that the scales are part of a roadway – 

and conceded that its rails are not at least mid-axle height, as required under the third element of 

section 56.9300. Pet. Memo. in Opp. at 2.4

 Moreover, the judge accepted the findings, made by 

other administrative law judges in prior decisions, that scales are part of a mine’s roadways. Slip 

op. at 8. In their Joint Statement of Undisputed Material Facts, the parties stipulated that the 

mid-axle height of the trucks using Lakeview’s scales range from 20 to 24 inches, and that all of 

Lakeview’s scales have eight-inch high steel “rub rails.” Id. at 3-4. Therefore, the judge’s 

decision should have properly turned on element (2), namely, whether each scale has a drop-off 

of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. 

However, the judge failed to make this determination and instead concluded that the presence of 

the rub rails prevented a vehicle from overturning and harming it or its occupants. 

Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 

F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 

447 U.S. 102, 108 (1980)); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). 

We conclude that the judge erred by failing to interpret the regulatory language according 

to its plain meaning. By the standard’s plain terms, the judge must first decide whether “a 

drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

equipment.” Only if this element is established may the judge then consider any existing berms 

or guardrails. Here, the judge erred by considering the presence of the rub rails before deciding 

whether the scales’ drop-off fits within the scope of the safety standard. In fact, despite the 

Secretary’s proffered evidence, the judge never determined whether each scale has a drop-off of 

sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. 

While the operator challenged the expertise of the Secretary’s engineers, the judge must 

address whether the operator disputed the Secretary’s evidence that a drop-off exists of sufficient 

grade or depth to cause a vehicle to overturn or endanger persons in equipment.5 If the record 

before the judge contains an unresolved dispute concerning whether a drop-off ranging from 

31.5 to 54 inches is of sufficient grade or depth to cause a vehicle to overturn or endanger 

persons in equipment, the proper course is to proceed to an evidentiary hearing, allowing both 

sides to submit additional evidence on element (2) of section 56.9300. If, on the other hand, the 

4 With regard to our colleague’s dissenting opinion, since the parties concede this issue 

and neither party raised it on review, we think it is not appropriate to address the issue of 

whether the scales are part of a roadway. 

5

 We note that in his decision, the judge stated: “The conclusion of the engineering study 

that a vehicle might overturn depending on the depth of drop-off may be correct, and this does 

stand uncontroverted by any expert opinion submitted by Lakeview.” Slip op. at 9. 

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operator never directly contested the Secretary’s assertion that the drop-off was of sufficient 

grade or depth to cause a vehicle to overturn or endanger persons in equipment, the judge should 

deny Lakeview’s Motion for Summary Decision and grant the Secretary’s Motion for Summary 

Decision. 

III. 

Conclusion 

For the foregoing reasons, we vacate the judge’s decision granting Lakeview’s Motion 

for Summary Decision and remand this case for a determination, in accordance with this 

decision, of whether the record contains an unresolved dispute of material fact. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Commissioner Duffy, dissenting: 

I would affirm the judge’s decision in result and vacate the citation on the grounds that 

30 C.F.R. § 56.9300 does not apply to the three pairs of scales cited by the inspector for lack of 

berms or guardrails. My colleagues, the judge, the Secretary, and – at least for purposes of the 

cross motions for summary decision below – the operator, have proceeded from the premise that 

the scales in question are part of the roadways at the subject mine, citing MSHA’s Program 

Policy Letter P10-IV-1 and several unreviewed decisions by Commission administrative law 

judges as authority. I fundamentally reject that premise. 

“Roadway” is not defined in 30 C.F.R. Part 56, but it is generally defined as “a road, 

especially the part vehicles travel over.” American Heritage College Dictionary 1201 (4th ed. 

2002). In my view, the plain meaning of the term “roadway” does not encompass the scales at 

issue here. The entire context of 30 C.F.R. § 56.9300 contemplates travelways or haulage routes 

– in a word, “roads.” It does not extend to adjunctive facilities, such as scales. Moreover, I do 

not consider the edge of a truck scale a “bank” to which the standard refers. Scales do not 

accommodate two-way traffic, a circumstance that makes the installation of berms or guardrails 

necessary on the “banks” of “roadways.” 

In my opinion, any potential hazards occasioned by a truck’s movement on and off a 

scale is otherwise addressed in 30 C.F.R. Subpart H: 

Operators of self-propelled mobile equipment shall 

maintain control of the equipment while it is in motion. Operating 

speeds shall be consistent with conditions of roadways, tracks, 

grades, visibility, and traffic, and the type of equipment used. 

30 C.F.R. § 56.9101. 

Accordingly, I would vacate the citation because the standard is inapplicable to the 

facilities cited. 

/s/Michael F. Duffy 

Michael F. Duffy, Commissioner 

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Distribution: 

Kevin R. Watkins, Esq. 

Lakeview Rock Products, Inc. 

P.O. Box 540700 

900 North Redwood Rd. 

North Salt Lake, UT 84054-0700 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Kenneth Andrews 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

875 Greentree Rd., Suite 290 

Pittsburgh, PA 15220 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 19, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. SE 2009-695-M 

v. : A.C. No. 08-00958-187673 

: 

FLORIDA CRI, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

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

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

relieve it from the order of default entered against it. 

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

Default in response to Florida CRI’s failure to answer the Secretary’s August 26, 2009 Petition 

for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days 

or it would be in default. 

Florida CRI asserts that it filed a timely response to the Secretary’s Petition for 

Assessment of Civil Penalty. Florida CRI further states that it did not receive any 

correspondence since it replied on August 27, 2009. However, it appears that the answer may 

have been sent to a Conference Litigation Representative at MSHA, instead of being filed with 

the Commission. The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

Commission. 

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

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

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

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

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

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

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

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

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Gary Frommer, Vice Pres. 

Florida CRI Inc. 

1910 Seward Ave. 

Naples, Fl 34101 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 19, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. YORK 2008-186-M 

v. : A.C. No. 06-00400-146591

 : 

WINDHAM MATERIALS, LLC : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On June 24, 2011, the Commission received from Windham 

Materials, LLC (“Windham”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the order of default entered against it. 

On October 23, 2009, Chief Judge Lesnick issued an Order to Show Cause in response to 

Windham’s request for a hearing and failure to answer the Secretary’s June 16, 2008 Petition for 

Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it 

would be in default. On December 2, 2010, Judge Lesnick issued an Order of Default for failing 

to comply with his Show Cause Order. 

Windham asserts that it did not receive the Order to Show Cause or the Secretary’s 

previously filed Petition for Assessment of Civil Penalty because they were sent to the wrong 

mailing address, instead of its address of record on its Legal ID Report. Windham further states 

that it did not receive any correspondence before it was contacted by the U.S. Department of 

Treasury on June 6, 2011. The Secretary does not oppose the motion to reopen.1 

1 It appears that the Secretary considers the operator’s address of record to be 360 Plains 

Road, Willimantic, CT 06226, while the operator requests that mail be sent to P.O. Box 346, 

Willimantic, CT 06226, which it believes is the address stated on its Legal ID Report. 

Furthermore, many of the documents in this case that were mailed to the operator were sent to a 

third address. 

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

justice, we conclude that the Order of Default has not become a final order of the Commission 

because the Order to Show Cause was never received by Windham. Accordingly, this case is 

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

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

Answer to the Show Cause Order within 30 days of the date of this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Harold Hopkins, Director of Operations 

Windham Materials, LLC 

360 Plains Rd., P.O. Box 346 

Willimantic, CT 06226 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

US Department of Labor 

1100 Wilson Blvd. 25th Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. CENT 2011-549-M 

v. : A.C. No. 41-01001-238560 

: 

TEXAS ARCHITECTURAL :

 AGGREGATE, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On March 15, 2011, the Commission received from Texas 

Architectural Aggregate, Inc. (“Texas Architectural”) a motion seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Having reviewed Texas Architectural’s request and the Secretary’s response, in the 

interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law 

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

David M. Williams 

Corporate Secretary 

Texas Architectural Aggregate, Inc. 

Hwy 190 East, P.O. Box 608 

San Baba, TX 76877 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. CENT 2011-608 

v. : A.C. No. 23-02277-244231 

: 

CONTINENTAL COAL, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On April 13, 2011, the Commission received from 

Continental Coal, Inc. (“Continental”) a motion seeking to reopen a penalty assessment that had 

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

§ 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part 2700.1 Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

1

 The November 22, 2011 order dismissing this case was issued in error and is hereby 

vacated and set aside. 

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Distribution: 

Kathryn G. Lee 

Husch Blackwell, LLC 

4801 Main St., Suite 1000 

Kansas City, MO 64112 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. KENT 2011-749 

v. : A.C. No. 15-17216-241663 

: 

WARRIOR COAL, LLC : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On March 24, 2011, the Commission received from Warrior 

Coal, LLC (“Warrior”) a motion submitted by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
	

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
	

/s/Michael G. Young 

Michael G. Young, Commissioner
	

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
	

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
	

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Distribution: 

Gary D. McCollum, Esq. 

Warrior Coal, LLC 

771 Corporate Drive, Suite 500 

Lexington, KY 40515 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. LAKE 2011-591-M 

v. : A.C. No. 21-01600-247961 

: 

HIBBING TACONITE COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On April 15, 2011, the Commission received from Hibbing 

Taconite Company (“Hibbing”) a motion submitted by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Dana M. Svendsen, Esq. 

Jackson Kelly PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011

 SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. LAKE 2011-854-M 

v. : A.C. No. 21-01600-256477 

: 

HIBBING TACONITE COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On July 8, 2011, the Commission received from Hibbing 

Taconite Company (“Hibbing”) a motion submitted by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Dana M. Svendsen, Esq. 

Jackson Kelly PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 22, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. VA 2011-625-M 

v. : A.C. No. 44-00061-241248 

: 

BUCKINGHAM SLATE COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 16, 2011, the Commission received from 

Buckingham Slate Company (“Buckingham”) a motion seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part 2700.1 Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

1

 The November 22, 2011 order dismissing this case was issued in error and is hereby 

vacated and set aside. 

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Distribution: 

Wallace B. Jones, Sr. 

P.O. Box 8 

Arvonia, VA 230004-0008 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001

 December 22, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : Docket No. WEST 2011-736-M 

ADMINISTRATION (MSHA) : A.C. No. 26-00594-232581

 :

 : Docket No. WEST 2011-737-M 

v. : A.C. No. 26-00594-235647 

: 

ROUND MOUNTAIN GOLD :

 CORPORATION : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On March 15, 2011, the Commission received from Round 

Mountain Gold Corporation (“Round Mountain”) two motions seeking to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 The Secretary does not oppose the requests to reopen. 

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

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

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

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

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

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

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

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

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

1

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

consolidate docket numbers WEST 2011-736-M and WEST 2011-737-M, both captioned Round 

Mountain Gold Corporation, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

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

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

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

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

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

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

Having reviewed Round Mountain’s requests and the Secretary’s responses, in the 

interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law 

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

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Distribution: 

Christopher J. Sutton, Esq. 

Perkins Cole 

1900 Sixteenth St., Suite 1400 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001

 December 22, 2011 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : 

: Docket No. WEST 2011-797-M 

: A.C. No. 35-02875-230929-01

 :

 : Docket No. WEST 2011-798-M 

v. : A.C. No. 35-02875-234079 

: 

COPELAND SAND & GRAVEL, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On March 29, 2011, the Commission received from 

Copeland Sand & Gravel, Inc. (“Copeland”) two motions seeking to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 The Secretary does not oppose the requests to reopen. 

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

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

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

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

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

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

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

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

1

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

consolidate docket numbers WEST 2011-797-M and WEST 2011-798-M, both captioned 

Copeland Sand & Gravel, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12. 

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

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

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

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

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

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

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

Having reviewed Copeland’s requests and the Secretary’s responses, in the interests of 

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

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Distribution: 

Katie E. Jeremiah, Esq. 

Jordan Schrader Ramis, PC 

Two Centerpointe Dr., 6th Fl. 

Lake Oswego, OR 97035 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

December 23, 2011

 SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. KENT 2011-1418 

v. : A.C. No. 15-19327-255241 

: 

CLARK MINING, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 25, 2011, the Commission received from Clark 

Mining, Inc. (“Clark Mining”) a motion seeking to reopen a penalty assessment that had become 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The record indicates that the proposed assessment was delivered on May 26, 2011, and 

became a final order of the Commission on June 27, 2011. Clark Mining’s consultant1

 asserts he 

had not received the proposed assessment until it was faxed to him by MSHA on August 18, 

2011. 

The Secretary opposes the request to reopen and notes that the proposed penalty 

assessment was signed for by S. Clark. The Secretary states that the operator failed to provide 

an explanation as to why it did not contest the proposed assessment within 30 days. 

The Commission sent Clark Mining’s consultant a letter asking him to explain why he 

failed to timely contest the proposed assessment, and what office procedures were implemented 

to prevent such failure in the future. In response, Clark Mining’s consultant asserts that he listed 

his name and address on MSHA’s address of record form for Clark Mining, but this assessment 

was mailed to the mine. The consultant also states that he routinely receives mail for many 

companies, sets a reminder for deadlines, and files timely with MSHA. From the enclosed 

documents submitted by the consultant and the Secretary, it appears that the proposed 

assessment was mailed to the mine in Kentucky, while the address of record is the consultant’s 

address in Virginia. 

1

 The request to reopen was filed by Eddie Joe Estep, who identifies himself as a Mine 

Consultant for Clark Mining. Commission Procedural Rule 3 provides that, in order to practice 

before the Commission, a person must either be an attorney or fall in to one of the categories in 

Rule 3(b), which includes parties, representatives of miners, an “owner, partner, officer or 

employee” of certain parties, or “[a]ny other person with the permission of the presiding judge or 

the Commission.” 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Estep satisfied the 

requirements of Rule 3 when he filed the request on behalf of Clark Mining. We have 

determined that, despite this, we will consider the merits of the request in this instance. 

However, in any future proceeding before the Commission, including further proceedings in this 

case, Mr. Estep may represent Clark Mining only if he demonstrates to the Commission or the 

presiding judge that he fits within one of the categories set forth in Rule 3(b)(1)-(3) or seeks 

permission to practice before the Commission or the judge pursuant to Rule 3(b)(4). Otherwise, 

Clark Mining must be represented by an attorney or by an owner, partner, officer, or employee. 

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Having reviewed Clark Mining’s request and the Secretary’s response, in the interests of 

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution:
 

Eddie Joe Estep, Mine Consultant
 

Clark Mining, Inc.
 

299 Eva St.
 

Gate City, VA 24251
 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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33 FMSHRC Page 3028
ADMINISTRATIVE LAW JUDGE DECISIONS 
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, D.C. 20001-2021
 

Telephone No.: (202) 434-9958
 

Fax No.: (202) 434-9949
 

December 5, 2011 

on behalf of CI

SECRETARY OF

NDY L. CLAPP

 LABOR, MSHA, :

 :

DISCRIMINATION PROCEEDING 

 Complainant :

 :

Docket No. WEST 2010-1773-D 

DENV-CD 2010-12 

v. :

CORDERO MINING, LLC,

 Respondent

 :

 :

 :

 : 

Mine: Cordero Mine 

Mine ID : 48-00992 

DECISION AND ORDER 

Appearances: Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Complainant 

Laura E. Beverage, Esq., and Kristin R.B. White, Esq., Jackson Kelly PLLC, 

Denver, Colorado, for Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

This proceeding is before me on a Complaint of Discrimination filed by the Secretary of 

Labor (Secretary) on behalf of Complainant, Cindy L. Clapp (Clapp), pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, as amended. See 30 U.S.C. § 

815(c)(2). The April 29, 2010 Complaint alleges that on March 18, 2010, the Respondent, 

Cordero Mining, LLC, terminated the employment of Clapp for exercising her statutory rights to 

make safety complaints to Cordero. For remedial relief, the Secretary seeks a finding of 

unlawful discrimination; reinstatement of Clapp to her position as Level 6 shovel operator, with 

full back pay, benefits, expenses and interest; an expunction remedy; costs and exemplary 

damages; and a $20,000 civil penalty. 

On June 7, 2010, the Secretary filed an Application for Temporary Reinstatement on 

behalf of Clapp. Respondent timely requested a hearing. On June 28, 2010, the undersigned 

issued an Order of Temporary Economic Reinstatement, effective June 24, 2010, as specified in 

the parties’ Joint Motion to Approve Settlement. 

On or about September 20, 2010, Respondent filed an Answer to the Complaint admitting 

jurisdictional allegations, denying discrimination, and alleging that Complainant was terminated 

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for insubordination. The Answer further avers that the requested remedial relief is excessive, 

inappropriate in light of the penalty criteria in section 110(i) of the Act, and not substantially 

justified. As affirmative defenses, the Answer asserts, inter alia, that Clapp’s discharge was 

based on legitimate and nondiscriminatory business reasons unrelated to any protected activity. 

On November 10, 2010, during pre-hearing discovery, I issued an Order Granting 

Secretary’s Motion To Compel Discovery, with Redaction Procedure. Essentially, I found that 

two specific incidents of discipline prior to Clapp’s March 18, 2010 termination were time 

barred and never pled as substantive complaint allegations. The first involved a November 11, 

2008 last and final warning letter for failure to wear a seat belt. The second involved an April 

14, 2009 last and final warning letter for using the dipper of her shovel to push the front bumper 

of a haul truck that was stuck. Although time-barred as substantive complaint allegations, I 

further concluded that such evidence may be relevant as background evidence of animus and on 

the issue of disparate treatment. Accordingly, I permitted the Secretary to discover evidence on 

these issues and use such evidence for said purposes at the hearing. 

An evidentiary hearing was held in Gillette, Wyoming. The parties presented testimony 

and documentary evidence. Witnesses were sequestered. After the close of the hearing, the 

parties filed post-hearing briefs. 

Having duly considered the same, I conclude that Clapp engaged in activity protected by 

the Act, and that her protected activity motivated Cordero to terminate her employment. 

Considering the appropriate penalty criteria, the overarching purpose of the Act to protect miners 

from any retaliation for actively raising safety and health concerns, the deterrent purposes of the 

Act, and the evident chilling effect that Clapp’s unlawful discharge had on the willingness of 

other miners to raise safety issues at the mine, I double the statutory penalty to $40,000. 

On the entire record, including my observation of the demeanor of the witnesses,1

 and 

1

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

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

other events, corroboration or lack of corroboration for testimony given, and consistency or lack 

thereof within the testimony of witnesses and between the testimony of witnesses. Respondent 

objected to the testimony of complainant’s witness, informant Jeffrey Stephens, because he was 

no longer a miner at the time of the hearing, and he was not disclosed as a witness until two days 

before the hearing, along with other miner witnesses. See Commission Rules 61 and 62 

governing the naming of informant witness and miner witness, respectively. Respondent relied 

on Judge Feldman’s decision in Laurel Run Mining, 19 FMSHRC 1607 (Sept. 1997). The 

Secretary countered with Commission precedent in Bright Coal, 6 FMSHRC 2520 (Nov. 1984) 

and Judge Manning’s decision in Richard Bundy v. Kennecott Utah Copper Corporation, 24 

FMSHRC 822 (Aug. 2002). Since the issue was first raised at the hearing, I ruled, out of an 

abundance of caution, that I would hear the testimony and entertain a motion to strike, and then 

revisit the issue in my decision after researching the case law cited. 

(continued...) 

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after considering the extensive post-hearing briefs and Respondent’s reply brief, I make the 

following: 

II. Background and Findings of Fact 2 

A. The Cordero Mine Operations 

Cordero Mine is a large, open-pit, surface coal mine with several miles of haul roads and 

ramps, located near Gillette, Wyoming. (Tr. 47). The non-union operation is owned by Cloud 

Peak Energy Company, following a spinoff from Rio Tinto in November 2009. (Tr. 66, 1128). 

The mine has won the prestigious Sentinels of Safety award five times. (Tr. 1064). 

Employment is at-will and Respondent has no written disciplinary policy. (Tr. 719-720, 1032). 

Thus, discipline is at management’s discretion on a case-by-case basis, and factors considered 

include operator judgment, prior discipline, performance issues, and harm or damage caused by 

an incident. (Tr. 720, 987, 1054). 

Respondent uses a truck/shovel method to mine coal. (Tr. 48, 635). Overburden dirt is 

drilled and blasted and then removed by drag lines to expose the coal seam. (Tr. 48). The coal 

seam is dug out using large shovels, which load 240-ton haul trucks that transport the coal from 

the pit to be dumped at hoppers at two processing plants for eventual loading on rail car. (Tr. 

48-49).3

 The pit areas are accessed by ramps from the main haulage roads. (Tr. 643). Roads, 

(...continued) 

Respondent never made any motion to strike at the hearing or in its post-hearing brief. 

In addition, having analyzed the case law cited, I agree with Judge Manning’s reasoning that the 

Secretary is required to disclose the identity of an informant that the Secretary intends to call as a 

witness two days prior to the hearing, even if that informant is no longer a miner. Richard 

Bundy v. Kennecott Utah Copper Corporation, 24 FMSHRC at 828 n. 4 and accompanying text. 

Here, the Secretary complied with that obligation by disclosing informant Stephens as a witness 

two days prior to trial. Moreover, unlike the facts that Judge Feldman was presented with in 

Laurel Run Mining, Respondent filed no pre-trial motion to compel discovery of Stephens’ 

testimony or subsequent motion to strike his alleged untimely disclosed testimony. In these 

circumstances, including Respondent’s failure to move to strike and failure to establish any 

actual prejudice, I find the circumstances most analogous to Richard Bundy v. Kennecott Utah 

Copper Corporation, and agree with Judge Manning’s application of Commission precedent in 

Bright. Accordingly, I consider Stephens’ testimony herein. 

2 Most of the salient facts are set forth in chronological order to provide relevant 

background. The most critical facts involving Clapp’s March 2010 safety complaints about 

turning around and dumping overloaded coal trucks back at the face begin at II, B, 8, infra, p. 20. 

3

 The shovels are 40-feet long and 35-feet wide. The shovel operator sits in a cab 30 feet 

above ground and operates a boom that is 60-feet tall. The 55-yard bucket at the end of the 

boom could house a pick-up truck and weighs about 76,000 pounds. (Tr. 53-55). The 240-ton 

haul trucks are about 48-feet long and 25-feet wide. The operator sits 25 feet above ground. The 

hopper is a well-lit, managed and clean area where the trucks back onto a stable cement pad with 

(continued...) 

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ramps and pit floors are maintained by track dozers, blades and rubber tire dozers. (Tr. 48, 51, 

451, 620, 646). The coal runs or slots are about 150-170-feet wide from spoil to highwall. (Tr. 

298, 649). 

Three coal shovels regularly operate in coal slots to load trucks at the face near highwalls 

that can reach 300 feet. (Tr. 57, 72, 649-650, 846). Shovel operators are in charge of their run 

and integral to coordinating safe production processes in the pit through radio communication 

with dispatchers, drilling and blasting crews, support equipment operators, haul truck drivers and 

crew supervisors. (Tr. 69-70, 567). From the coal face, the shovel operators constantly monitor 

changing conditions and safety hazards on the highwall and in the coal slot. (Tr. 71-72). The 

grade of the terrain in the slot at the face of the pit can be uneven, steep, and soft, and follows the 

coal seam, dropping and falling and dipping and rising. (Tr. 71, 167, 417, 419, 450-52, 541, 

565, 617, 620). The coal slots also can be wet and narrow with limited space for multiple 

vehicles to maneuver, such as the shovel, incoming and outgoing trucks, blades, and rubber tire 

dozers. (Tr. 52, 100, 503). Unlike at the hopper, the pit area is unlit at night and lights from the 

operating vehicles provide the sole illumination. (Tr. 63, 167). 

There are four production crews (A-D), which average 83 miners per crew and operate on 

a 28-day schedule, rotating from 12 and 1⁄2 hour day shifts to 12 and 1⁄2 hour night shifts, with 

time off between rotations. (Tr. 67-68, 630-31, 734, 841).4

 Respondent holds a regular monthly 

safety meeting and a 5-minute break-out meeting every shift. (Tr. 93). Representatives from 

Respondent’s safety and maintenance departments work the day shift and are not present at 

nights or on weekends. (Tr. 105, 112, 813-14). 

Pay scales for production employees start at entry level 2 and progress through level 6. 

Each production crew has a Lead and Rotating Operations Supervisor (“ROS”). The ROS 

reports to the production manager, who reports to the mine manager. (Tr. 68). 

Joe Vaccari has been the mine manager since 2001. Kyle Colby has been the production 

manager since January 2005. (Tr. 629). Gerald Fischer became the ROS on D crew in October 

2006. (Tr. 465). Fisher’s predecessor was Bob Brill. (Tr. 91). Dave Robinson became the 

leadman on D crew in April 2008. (Tr. 732). Robinson’s predecessor was Wayne Franzen. (Tr. 

91). Fischer and Robinson share adjacent office space, often travel together in the lead pickup, 

perform crew member evaluations together, and constantly communicate with each other about 

everything. (Tr. 108, 833, 890-91, 970). As Clapp, put it, “they are always together.” (Tr. 

108). 

Complainant Clapp is a relatively petite woman at 5 feet, 4 inches tall. (Tr. 135). Clapp 

has spent the majority of her 28-year career at Cordero on the D Crew. (Tr. 67). She began as a 

(...continued)
 

berm, and dump the coal for crushing at the plants. (Tr. 61-63; G. Ex. 11). 

4

 The mine has two primary work groups, production and maintenance. (Tr. 631-32). 

Maintenance is not particularly relevant to this proceeding. 

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haul truck driver in 1982, then operated support equipment, including blades and dozers, and has 

been a shovel operator since 1987. (Tr. 47). Clapp was a level 6 shovel operator at the time of 

her March 18, 2010 discharge. Clapp was normally assigned to the 106 shovel, although she 

was certified to run rubber tire dozers when her shovel was down for maintenance. (Tr. 118-19, 

356). Clapp’s co-workers and managers consistently lauded her as a very safe and productive 

shovel operator, who set the standard. (Tr. 428, 481-82, 533-34, 567, 888, 1064-65). Clapp’s 

attendance was exemplary with perfect attendance in the 2006-2007 review period, and but one 

absence or sick day for the 2007-08 and 2008-09 review periods. (R. Exs. 7-9). Clapp credibly 

testified that she was never late for work and she never had a lost-time injury. (Tr. 80-81). 

Moreover, Clapp has served at the request of management on several quality improvement 

committees. (Tr. 77-80). 

Beginning in 2006, Respondent rolled out a mine monitoring and control system (MMC, 

or modular mining system) and installed various monitoring devices on shovels, haul trucks, and 

rubber tire dozers so that efficiency, asset management, and delay could be tracked remotely by a 

corporate dispatch team located off site. (Tr. 635, 845). In late 2008 and early 2009, haul trucks 

were equipped with an updated pay load monitoring system (PLM III), a scale attached to truck 

struts to calculate the weight of the coal load so that the data could be shared with the modular 

mining system. (Tr. 636-37, 741). Basically, the PLM III system would send the data to the 

MMC system where it would appear on the monitor screens in the cab of the equipment and 

could be shared with dispatch. (Tr. 157, 636). The PLM III would not register an accurate 

weight reading until the load had leveled out after the truck traveled 500 feet from the shovel. 

(Tr. 636). 

Eventually, the PLM III plan was to install governors or speed regulators to the weight 

system. (Tr. 666, 876). The governors would be triggered when a truck read overloaded at a 

pre-set weight of 260 tons. (Tr. 664). Once triggered, the governor would prevent the truck 

from traveling at greater than five mph. (Tr. 163, 663, 666). In a breakout meeting about the 

spring of 2009, Fischer and Robinson announced the governor plan to the D crew, however, the 

governors were not installed until about March 1, 2010, about two weeks before Clapp’s 

discharge. (Tr. 157-59). 

The main method of communication in the pit is by radio. (Tr. 70). The main minewide channel 3 is very busy and may be accessed by all employees. (Tr. 121, 750). Each shovel 

operator also has a line-of-sight channel to communicate with miners and supervisors in that coal 

run. (Tr. 121, 176-77, 922-23). Channel 10 was the line-of-site channel for the 106 shovel to 

which Clapp usually was assigned. (Tr. 176, 923). 

Witnesses for both the Secretary and Respondent testified that open communication is 

critical to safety at the mine. (Tr. 87-88, 199, 331-32, 410, 981, 1025-1027). Robinson opined 

that he had a very good relationship with Clapp. (Tr. 733-34). The record clearly establishes, 

however, that open communication about safety issues became stifled once Fischer and 

Robinson became a management team in 2008. Clapp was the most outspoken advocate for 

safety on the D crew and became more vocal as other female co-workers such as truck drivers 

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Cindy Miller and Helen Clark became afraid to raise safety issues after Fischer and Robinson 

took over for fear of repercussions or being placed on their “hit list.” (Tr. 153-156, 410, 468­

470, 517-19, 611-12).

5 

B. Background Evidence of Animus and Disparate Treatment Toward Clapp’s 

Safety-Related Complaints 

1. The November 2008 Failure to Wear a Seat Belt Incident 

As noted, my November 10, 2010 discovery Order time-barred this incident as a 

substantive complaint allegation, but permitted such evidence as background evidence of 

animus. The record establishes that at the end of the shift on November 1, 2008, Robinson and 

Fischer sent a flatbed truck to pick up seven crew members, who were working in the pit on 

Clapp’s shovel run. (Tr. 279-80, 970-71). The pickup had only six seat belts. (Tr. 279-80, 970­

71). Rather than leave a crew member down in the pit in November at shift’s end, Clapp drove 

the vehicle at 30 mph and subsequently took responsibility for failing to wear a seatbelt, as 

further explained below. (Tr. 282). Extant mine policy was that anyone caught failing to wear a 

seat belt would receive an automatic last and final warning, although as noted, there was no 

written disciplinary policy at the mine and Respondent presented no documentary evidence of 

any such policy. (Tr. 373, 1066-67). 

On route, a lunch box fell out of the pickup and was run over by a haul truck. (Tr. 373, 

623-24). Within 24 hours, Clapp spoke with Fischer and Robinson about sending a pickup with 

insufficient seatbelts and asked for reimbursement for the lunch box. (Tr. 623-24, 1066). They 

declined. (Tr. 1066). The next shift, Clapp told haul truck driver Fallon Halverson in the locker 

room that she had spoken to Fischer and Robinson about the incident and they had not done 

anything about it so she was going to talk to Joe Vaccari. (Tr. 612-13, 623-24). 

Clapp then explained the incident to Vaccari. (Tr. 1066). During Clapp’s explanation 

that her supervisors sent a truck with an insufficient number of seatbelts for the crew members 

present, Vaccari uncovered the seat belt violation. (Tr. 373-74, 1066). Vaccari did not ask 

Clapp to identify who of the seven was not wearing a seat belt. Rather, Vaccari told Clapp’s 

“supervisor” about the issue for follow up. (Tr. 1067). 

Later that day, after speaking with Clapp in the locker room, Halverson’s truck broke 

down. (Tr. 611-13). Robinson told Halverson to wait in the lead pickup truck for a ride to 

another piece of equipment. The lead’s pickup truck was parked outside the main office 

building where Vaccari’s office was located upstairs. (Tr. 621, 624). Halverson waited for a 

5

 Although Respondent’s counsel correctly points out that this is not a case concerning 

gender discrimination (Tr. 427), the record establishes that Fischer and Robinson intimidated and 

made women such as Cindy Clapp, Helen Clark, Fallon Halverson, Cindy Miller, and Michelle 

Whitted uncomfortable concerning discussion of safety issues. (Tr. 153-56, 426-427, 517-25, 

535-37, 609-613, 625-26). 

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long time in the back seat of the pickup for Robinson and Fischer to return from the office 

building where Vaccari worked. (Tr. 611-12, 624). Halverson testified that when Fischer and 

Robinson finally came out of the office building and got back in the truck, both were angry and 

Fischer said, “That bitch, we’ll show her who’s boss. How dare her go over our heads. I can’t 

believe she did this and said anything to Joe.” (Tr. 612).6

 Halverson felt very uncomfortable 

and assumed that Fischer was talking about Clapp because earlier that day Clapp told Halverson 

that she was going to talk to Vaccari about the seat belt incident. (Tr. 612, 625). 

Respondent initially decided to issue all seven miners a last and final warning because 

Respondent did not know who did not wear a seat belt. Clapp, however, came forward and said 

she would take the letter. (Tr. 373-74). On November 11, 2008, Fischer issued Clapp a last and 

final warning for failing to wear a seat belt. (R. Ex. 4). Thereafter, Clapp spoke to Vaccari 

about the warning because she thought “last and final” was a little steep. (Tr. 283). Vaccari 

assured Clapp that she would not be fired after another incident, unless it was a seat belt 

violation. (Tr. 284). 

On rather scripted direct examination, Fischer was asked but a single question about the 

seat belt violation, admitting he was involved in the process, but “probably not” the decision. I 

am unpersuaded by Fischer’s attempt to distance himself from this incident and from 

Halverson’s testimony. Fischer never denied the remarks attributed to him by Halverson. 

Robinson merely could not recall an incident in the pickup with Halverson where Fischer 

referred to someone as a “bitch.” (Tr. 810-11). 

I credit current employee Halverson’s specific, detailed and vivid testimony against selfinterest pursuant to subpoena as production manager Kolby sat through the hearing. I infer that 

Fischer’s animus was directed at Clapp, who brought the issue to Vaccari’s attention.7 

Clapp lost a bonus and received a last and final warning for the seat belt incident. (Tr. 

276). With respect to the issue of disparate treatment, Clapp’s unrebutted testimony established 

that about December or January 2009, shortly after she was disciplined for the seat belt incident, 

she overheard several conversations over the radio between pit mechanic Bruce Lang and 

Fischer and Robinson. During the conversations, Clapp heard the audible seat belt beeper in 

Lang’s pickup truck continue to go off. (Tr. 276-278). After overhearing several such 

conversations and concluding that Fischer and Robinson were not going to enforce the seat belt 

policy, Clapp asked a haul truck driver to speak with Lang about wearing his seat belt. (Tr. 

277). Thereafter, Clapp did not hear the seat belt beeper go off when Lang spoke over the radio. 

6

 On questioning from the undersigned, Halverson did not waiver and reaffirmed the 

substance of Fischer’s remarks: “That bitch, I can’t believe she did that to us. We’ll show her 

who is boss, going over our heads like that.” (Tr. 625). 

7

 In addition, having observed Fischer’s demeanor on the witness stand, and heard and 

reviewed the totality of record evidence concerning his conduct as a supervisor, Fischer 

impressed me as a mean-spirited individual bent on making his mark as a supervisor. As the 

record evidence demonstrates, in most instances, it was Fischer’s way or the highway. 

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(Tr. 278-79). Clapp testified that she knew that Lang was not disciplined for failure to wear his 

seat belt because Respondent provided no evidence of such discipline during discovery. (Tr. 

278-79). 

In short, although Clapp received an automatic last and final warning for the seat belt 

violation, there was no written documentation confirming this policy, it apparently was not 

enforced by Fischer against Lang,8

 and Clapp’s warning followed closely on the heels of 

Fischer’s animus toward Clapp for bringing the safety issue to Vaccari’s attention, including the 

fact that Fischer sent a pickup with an insufficient number of seatbelts to transport the November 

night crew, who had been working in the pit. 

2. Clapp’s Safety Complaints That Monitor Screen Placement 

Impaired Visibility in Rubber Tire Dozers and the 103 Shovel 

In early 2009, Respondent began placing large, bulky GPS screens in the right-corner, 

front window of the cabs in the rubber tire dozers (RTDs). (Tr. 116-17). About early February 

2009, two dozer operators, Leann Schneider and Blair Stugelmeyer told Clapp over Channel 10 

that the screen placement was blocking their vision in the coal run. (Tr. 120-122).9 Clapp, 

Schneider and Stugelmeyer expressed impaired vision concerns to Robinson and Fischer at a 

line-out meeting about this time. (Tr. 122-25). Schneider cited a specific incident where a fullyloaded, 240-ton coal truck completely disappeared from her view at a mine intersection. Clapp 

also specifically expressed concerns about impaired vision at said line-out meeting. (Tr. 125). 

In response to these concerns, Fischer retorted, “We’re not moving them screens. We are using 

them screens, get used to it.” (Tr. 124). 

On February 22, 2009, Clapp was assigned to operate the 325 rubber tire dozer for 

recertification purposes. (125-27, G. Ex. 15, p. 1). Clapp testified that she was very 

uncomfortable operating the dozer because the screen blocked her vision. (Tr. 127). Clapp 

completed a pre-shift report, which she gave to maintenance after operating the equipment. On 

the pre-shift form, Clapp wrote: “I run this 4 hours a year or would have shut it down for that 12 

inch TV screen you have in the cab - unrunable - unneeded.” (Tr. 127, G. Ex. 15, p. ). Prior to 

giving the form to maintenance, Clapp showed the form to Robinson to let him know that she did 

not want to run equipment with monitors that blocked her vision. Robinson replied, 

“[R]espondent won’t be moving them screens.” (Tr. 127). 

On March 1, 2009, Clapp operated the 328 rubber tire dozer. (Tr. 128, G. Ex. 15, p. 2). 

Clapp completed another pre-shift report on which she wrote, inter alia, “2 and 12: inside the cab 

in front of the right window, a GPS screen has been installed (sic) it is a safety hazard (sic) it is a 

12 in (sic) screen and blocks your view where you can’t even see a 240 ton (sic) truck (sic) this 

8 Respondent offered no evidence to the contrary. 

9

 In fact, Stugelmeyer told Clapp that he had an accident, and his head hit the monitor. 

(Tr. 133). 

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screen is about 200 times the size of a cell phone.” (G. Exh. 15, p, 2). In the section of the form 

concerning “Shut Down Items,” Clapp made the handwritten notation “GPS screen?” Clapp 

turned the form into maintenance. (Tr. 129). She testified that she probably showed the form to 

Robinson, but definitively could not recall showing the form to supervision. (Tr. 129). 

Fischer did not know exactly when the GPS screens were placed on the RTDs, but 

testified that they were taken from the shovels and placed in the RTDs when the shovels were 

upgraded with the MMC screens. (Tr. 857, 861). Fischer recalled only one complaint from 

Clapp about GPS placement in a rubber tire dozer, but could not recall when Clapp had 

complained. (Tr. 859, 862). Fischer testified that he went to the RTD that Clapp was operating, 

looked at the placement of the GPS monitor, discussed alternative placement and reached a 

resolution with Clapp by moving a radio and raising the GPS screen four inches to enhance 

visibility. Fischer, however, refused to concede that there had been any visibility problem with 

the placement of the GPS screen. (Tr. 860). 

Robinson admitted that Clapp told him the screens were a hazard because “it’s like 

driving around with a TV screen in your front window.” According to Robinson, however, no 

other RTD operators expressed similar concerns. (Tr. 797). I discredit such testimony. Based 

on demeanor, the generality of Robinson’s testimony, and the specificity of Clapp’s testimony, I 

find that miners Clapp, Schneider and Stugelmeyer expressed impaired vision concerns to 

Robinson and Fischer about the placement of large GPS screens in RTDs at a line-out meeting in 

early 2009. 

On March 21, 2009, Clapp was assigned to the 103 shovel, instead of her normal 106 

shovel. She completed a pre-shift report for the 103 shovel. (Tr. 134; G. Ex. 16, p. 1). In the 

section of the report involving “Safety and Operating Checks,” Clapp wrote “left window 

blocked.” At the bottom of the report, Clapp wrote, “Needs MMC screen moved right away. 

(sic) Haven’t run this shovel. (sic) Screen in wrong place blocking left spot to see RTD.” (G. 

Exh. 16, p. 1). Clapp testified that the monitor blocked her field of vision from the left window 

of the cab, which was the only place that she could look across the whole roof of the machine 

and see the ground, where smaller equipment might have entered the area unannounced. (Tr. 

134-35).10 At the end of her shift, Clapp showed the report to Fischer and Robinson and asked 

Robinson to have maintenance fix the problem. (Tr. 136, 138). According to Clapp, Robinson 

said he would “check on it.” (Tr. 138). 

Robinson testified that Clapp’s March 2009 complaint that the screen be moved in the 

103 shovel was passed along to the truck/shovel planner and MMC personnel and production 

manager Colby. Without further explanation, Robinson testified that “it’s not really something 

we can do in-house. We can’t send a mechanic out there to move it.” (Tr. 794). 

10 Clapp had designated the placement of the monitor on the 106 shovel that she normally 

operated. (Tr. 793-794). 

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As discussed below, Clapp followed up on the issue a couple of months later and was 

told by Fischer and Robinson that they were not going to move that screen. (Tr. 138). When 

Clapp followed up with maintenance mechanic Bunker, however, she was told that he had 

already moved the screen. (Tr. 139). Bunker did not testify. 

3. Clapp’s Initial Safety Complaints About Unmanned Rubber Tire Dozers 

Parked Behind Her Shovel 

About March or April 2009, Clapp complained to Fischer and Robinson in safety 

meetings, in private discussion, and by radio from the pit, about rubber tire dozers that had been 

parked unmanned behind her shovel while the RTD operator ran other equipment, such as the 

blade. (Tr. 97-99). Clapp credibly testified that she was not given an opportunity to specify her 

safety concerns. (Tr. 98-99). Rather, Fischer and Robinson told her they did not care what her 

concerns were, that it was not unsafe to park the unmanned dozer behind the shovel. (Tr. 99). 

At the hearing, Clapp identified a litany of reasons why the practice was unsafe, including 

entrapment upon spoil failure. (Tr. 100-01). 

4. Clapp’s Penultimate “Last and Final” Warning For Minor Property 

 Damage to a Haul Truck Stuck Under a Highwall 

A. The Penultimate “Last and Final” Warning 

On April 16, 2009, Clapp received another last and final warning from Fischer for minor 

property damage that her shovel caused to a haul truck on April 7, 2009. (Tr. 369-372; R. Ex 

3). As noted, my discovery Order barred this incident as a substantive complaint allegation, but 

permitted such evidence as background evidence of animus and disparate treatment. 

Clapp testified that a truck driver swung an empty haul truck into the slot to receive a 

swing load of coal and became stuck under the highwall and could not break free. (Tr. 267). 

Clapp did not want him under the highwall because “there is no safe highwall,” although Clapp 

conceded that she saw no “imminent hazards” on the highwall at the time. (Tr. 267, 370). Clapp 

called Robinson and explained that an empty coal truck came in for a load and “got sucked up 

against the highwall facing the coal dig face,” and there was room in front of the truck for Clapp 

to put her shovel bucket down and push the truck out. (Tr. 267, 370). Robinson relied, “Okay. 

Call if you need anything.” (Tr. 267). Clapp then pulled her shovel out of the bank, placed her 

bucket down on the ground in front of the truck bumper, and pushed the truck out. (Tr. 267). 

During the process, the mounting ladder on the truck broke causing $250 dollars worth of 

property damage. (Tr. 267-68, 718). 

As a result of the incident, Clapp endured three disciplinary meetings – one in town and 

two at the mine – and was suspended without pay for two days and lost the second quarter 

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payout for performance pay. (Tr. 268; R. Ex. 3).11 The warning cites Clapp’s “poor judgment” 

and unacceptable performance and leadership by failing to assess the risks and ensure safe 

operations. Although Fischer’s warning and Colby’s incident report make no mention of 

Clapp’s alleged failure to fully report the extent of the damage, Colby suggested that such 

alleged omission was encompassed within poor judgment. (Tr. 688). The warning stated that 

“[a]ny additional safety incidents or performance-related issue will result in termination of your 

employment.” (R. Ex. 3). 

Respondent’s witnesses painted a different picture. Robinson testified that Clapp called 

to report “a truck stuck in the – or under the high – not under the – she said she had a truck stuck 

under the shovel, but she thought she could get it out.” (Tr. 790). Robinson testified that he told 

Clapp that the utility crew was in the area and to give them a call if she needed help, but Clapp 

told Robinson she thought she could manage, so Robinson told her to be careful. (Tr. 79). 

Robinson testified that he had no idea that Clapp intended to walk her shovel across the coal face 

and push the bumper of the truck out with her bucket. (Tr. 790-91). Robinson testified that had 

he understood that to be Clapp’s intent, he would have told Clapp to leave the truck alone until 

the utility crew arrived to pull the truck out. (Tr. 791). 

I discredit this testimony from Robinson. At the outset, I find Robinson’s incipient 

verbal leak very telling. As noted, Robinson started to testify that the truck was stuck under the 

highwall as opposed to under the shovel. I discredit his testimony that Clapp told him the truck 

was stuck under the shovel as opposed to under the highwall. When asked what his 

understanding of “stuck under the shovel” meant, Robinson explained that the truck was loaded 

up with coal and could not pull away from the shovel, and he described a practice of placing the 

shovel dipper in the back of a loaded haul truck to push on the coal to dislodge the stuck truck. 

(Tr. 789-90). I credit Clapp, however, and find that she expressly told Robinson that the truck 

was empty. I note that production manager Colby confirmed that the truck had not turned for its 

swing-by yet, and therefore would be empty for loading. (Tr. 682). Therefore, the practice of 

pushing on the loaded coal with the dipper, which Robinson described, and Clapp candidly 

acknowledged (Tr. 370), was not viable in this instance. Rather, I find that Clapp told Robinson 

that there was room in front of the empty truck for Clapp to put her shovel bucket down and push 

the truck out from under the highwall, and that Robinson gave tacit approval for Clapp to do so. 

(Tr. 267, 370, 971-72). 

Colby testified that the general rule is to avoid placing metal to metal because one can 

damage the equipment, and in most instances a choker was hooked up to the truck to pull it out 

with another piece of equipment. (Tr. 681). Colby also testified that utility should have been 

called to complete this task. (Tr. 682, 688). As production lead, Robinson should have been 

aware of such standard protocol. It would appear that Robinson did little if anything to exercise 

his own leadership and judgment skills when Clapp called him to report the situation. I find that 

Robinson’s version of events was tailored to divert attention away from facts suggesting that he 

11 For property damage over $3,000, a miner is automatically removed from performance 

pay for a quarter, but anything less is subject to management’s discretion. (Tr. 719). 

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knew exactly what Clapp had proposed, and thus failed as production leadman to make 

appropriate inquiries to ensure a full understanding of the scenario before tacitly approving 

Clapp’s solution, instead of calling utility. In any event, Robinson testified that he did not want 

to see Clapp terminated for the incident. (Tr. 793). 

Clapp called Robinson after the incident to report that she had pushed the truck out, but 

there was a broken bolt on the ladder. (Tr. 791). The truck operator for the oncoming shift later 

called Robinson and suggested that there was more extensive damage. (Tr. (Tr. 791-92). 

Robinson, Fischer and Colby investigated and Fischer took photographs of the damage, which 

established that a railing had been broken off, and some paint had been removed where the 

shovel had pushed on a step. (Tr. 682, 686-88; R. Exh. 2). The truck was taken out of service 

for the minor repairs. (Tr. 686). 

Colby completed an incident review interview form after meeting with Fischer, Robinson 

and Clapp. (Tr. 680; R. Ex 2). Colby’s report notes that the stuck truck was “next to [the] 

highwall” and Clapp “made [the] decision to move truck with bucket.” Colby further noted that 

the incident was reported immediately by Clapp, and that Clapp’s solution to prevent recurrence 

was “call for supervision,” which is exactly what she did. Finally, Colby’s report highlighted 

Clapp’s previous seat belt incident in November 2008. (R. Ex. 2). 

Robinson and Fischer both testified that they did not realize that Clapp was on a last and 

final warning until the incident review with Colby, who suggested that Clapp could be 

terminated. (Tr. 721-22, 793, 893-94). Robinson and Fischer told Colby that despite Clapp’s 

lapse of judgment, they did not want Clapp terminated for the property damage incident. (Tr. 

721-22, 793, 874). As Fisher fully explained, he, Robinson and Colby considered the fact that 

Clapp was a very productive operator, that no one except Clapp had been placed on a last and 

final warning under the new seat belt policy, and that management was willing to go to bat for 

Clapp if there was anything they could do to keep her around any longer. (Tr. 874). 

 Accordingly, as a result of the minor property damage incident in April 2009, Clapp 

received another last and final warning and a two-day suspension without pay, and she lost 

second-quarter performance pay. (Tr. 268; R. Ex. 3).12 

Clapp’s annual performance appraisal appeared to decline under Fisher, who testified that 

her performance had declined with respect to safety infractions. (Tr. 886). With regard to team 

functioning and leadership, Fischer noted that Clapp “has taken a step back in the leadership area 

by continually ‘bucking’ MMC,” by which Fischer meant not utilizing it. (Tr. G. Ex. 27; R. Ex. 

7; Tr. 887). Similarly, with regard to personal effort, working with others, dependability and 

flexibility, Fischer noted that “we would like to see some improvement in the area of personal 

effort. Cindy, at time needs to work on attitude. She can be argumentative on issues already 

12 Colby testified, without further explanation, that they visited with HR and Vaccari after 

this incident review. (Tr. 686). 

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discussed. If a decision has been made it is final, don’t beat a dead horse. Another area to work 

on would be dealing with the utilities and dispatch . . .” (Id; Tr. 889-890). 

B. Clapp’s Disparate Treatment Allegations 

1. Christiansen 

With respect to the issue of disparate disciplinary treatment, Clapp alleges that D crew 

miners Doug Christiansen and Bob Eisenhauer were treated more favorably than she was treated. 

The record reflects that on March 10, 2009, Christiansen cut and damaged a large and very 

expensive electrical trail cable that he failed to pick up when moving his shovel. (Tr. 270, 693; 

G. Ex. 18). Christiansen received a verbal warning to pay more attention. This warning noted 

that he had no “recent” discipline. (Tr. 271; G. Ex. 18).13 Three months later, on June 15, 2009, 

Christiansen had an accident while driving a scraper too fast for conditions. He hit a V-ditch 

and injured his back and damaged the vehicle’s fender. (Tr. 271; G. Exs. 19 and 20). The 

incident review noted that after the accident, damage was found on the scraper that was related 

to the incident. This incident report, unlike the March incident report, stated that Christiansen 

has had two to three incidents a year. (G. Ex. 20). Christiansen received a written warning from 

Fischer dated July 2, 2009 for this safety incident. (G. Ex. 20).14 

While somewhat equivocal given Clapp’s last and final warning status for the seat belt 

violation, I find sufficient probative evidence of disparate treatment concerning Respondent’s 

discipline of Christiansen vis-a-vis Clapp. First, there is no evidence that Christiansen was 

outspoken about safety concerns. Although Clapp received an automatic last and final warning 

for the seat belt violation, as noted above, it is suspect and does appear unduly harsh because 

there was no written documentation confirming this policy, Clapp was the only person to receive 

a warning under the policy, the policy apparently was not enforced by Fischer against Lang, and 

Clapp’s warning followed closely on the heels of Fischer’s animus toward Clapp for bringing the 

issue to Vaccari’s attention. Perhaps more importantly, however, after the seat belt warning, 

13 No explanation of the word “recent” was provided by Respondent. As noted below, 

however, another incident report (G. Ex. 20) written just three months later, stated that 

Christiansen had two to three incidents a year. (G. Ex. 20). I find the later incident report more 

reliable since it specifies a specific time frame, and it was issued after a second incident that 

involved a personal injury accident and under circumstances in which a more thorough 

examination of past discipline would be expected. 

14 This warning recited, inter alia, the responsibility of each employee to take proper 

precautions, complete a thorough risk assessment and follow proper procedures to ensure safe 

operations. It reminded Christiansen of the need to be aware of his surroundings and maintain 

control of equipment being operated at all times. It further stated that as a step-up lead, 

Christiansen was expected to set a good example and provide leadership to employees working 

in his area. The warning concluded that future incidents may result in further disciplinary action, 

up to and including termination. (G. Ex. 20). 

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which was Clapp’s first documented incident of discipline, Clapp received another last and final 

warning for minor property damage totaling $250 and she was suspended for two days without 

pay and lost a second-quarter performance bonus. The $3,000 threshold for loss of performance 

pay for the quarter was not even triggered by Clapp’s incident, yet management exercised its 

unbridled discretion not only to eliminate the quarterly bonus, but to impose another last and 

final warning and to suspend Clapp for two days without pay. 

By contrast, Christiansen received a mere verbal warning for damaging a very expensive 

electrical cable. Although Colby testified that the level of damage done by Clapp to the truck 

and by Christiansen to the cable was “probably fairly close,” I am not persuaded that this is the 

case because my experience confirms Clapp’s testimony that a large electrical cable powering 

the shovel is very costly, and may cost thousands of dollars to replace. (Tr. 270). In addition, 

while Colby attempted to justify the harsher treatment of Clapp by testifying that Christiansen 

had no previous disciplinary action, the incident review regarding Christiansen’s accident, which 

caused personal injury and minor property damage just three months later, belies Colby’s 

testimony and documents that Christiansen had two to three incidents a year. (G. Ex. 2). 

Furthermore, I have found that when Clapp caused minor damage to the haul truck that was 

stuck under the highwall by pushing it with the dipper on her shovel, she had Robinson’s tacit 

approval and fully explained the scenario to him. Christiansen, by contrast, was driving too fast 

and lost control of Respondent’s scraper. Thus, no mitigating circumstances excused his 

continuing poor judgment. (Tr. 696). Yet as Colby testified, Christiansen received but a 

written warning for both incidents. (Tr. 697). In these circumstances, I find contrary to Colby’s 

opinion, that Clapp was indeed treated less favorably than Christiansen. (Tr. 697). 

I also credit Clapp’s testimony that Fischer, in essence, admitted his favorable treatment 

of Christiansen, after Clapp told Fischer that Christiansen had been talking to Clapp about 

Christiansen’s accidents. (Tr. 266). According to Clapp’s unrebutted testimony, Fischer got 

very scared and said, “Doug Christiansen better not be talking to you about what I am doing for 

him. He better not be talking to you.” (Tr. 266). I find Clapp’s unrebutted testimony to be an 

admission against interest by Fischer of favorable treatment toward Christiansen. Cf. Fed. R. 

Evid. 801(d)(2). 

2. Eisenhauer 

I also conclude that there is sufficient probative evidence to warrant the inference that 

Clapp was disciplined more harshly than Bob Eisenhauer based on her recent safety complaints. 

First, haul truck driver, Cindy Miller, credibly testified that Eisenhauer was not outspoken about 

safety issues (Tr. 540), and the record is replete with evidence that Clapp constantly raised 

concerns about the safety of herself and other miners. (Tr. 430, 482-83; see generally Tr. 97­

257). In addition, the record also reflects that miner Eisenhauer was involved in two, successive 

property damage incidents on June 13 and 14, 2009, respectively. (Tr. 607-98; G. Ex. 21-23). 

Clapp overheard the June 13, 2009 incident on the radio. (Tr. 261-62, 402). Clapp 

testified that Eisenhauer was operating a track dozer when a coal truck loaded with trash got 

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stuck at the trash dump and Eisenhauer attempted to dislodge the stuck truck with the dozer. (Tr. 

261-62, 401-02). Fischer, Robinson, and utility personnel were present at the dump watching 

Eisenhauer. Clapp heard Robinson and utility personnel tell Eisenhauer to be careful and watch 

what he was doing so as not to damage the truck or dozer. (Tr. 262, 402). Clapp then heard 

Eisenhauer tell Robinson, “Don’t tell me what to do, Dave. Don’t tell me what to do. I can see 

what I am doing. I don’t need any help,” comments which Clapp considered insubordinate. (Tr. 

262, 402). After making such comments, Eisenhauer hit the truck with the dozer and broke the 

light on the dozer. (Tr. 264, 698; G. Ex. 22).15 

Haul truck driver Miller also heard the discussion over the radio and essentially 

corroborated Clapp’s version of events. (Tr. 537-38). After Eisenhauer’s accident, Miller 

worked with the utility crew. Miller’s truck pulled out the stuck truck. (Tr. 538). Miller 

testified that Eisenhauer was sent for a drug test (Tr. 538). Clapp later observed Eisenhauer 

return to work that day on a rubber tire dozer in her area. (Tr. 263, 265). Eisenhauer did not 

receive any discipline that day. 

The next day, June 14, 2009, Eisenhauer had another accident when operating a piece of 

equipment in the coal run. Eisenhauer collided with another operator due to inattention and lack 

of communication between operators, and broke the hoist cylinder on a blade. (Tr. 698; G. Ex. 

21, p. 2). Eisenhauer was given only one warning for both incidents of property damage on June 

13 and 14, 2009. (Tr. 698; G. Ex. 21).16 

Colby testified that Eisenhauer had no prior discipline in his file and was a member of the 

safety committee. (Tr. 698). When asked by the undersigned why Eisenhauer did not receive 

two warnings, Colby testified that the two incidents were close together and the first one 

involved a fairly minor incident with damage to a light, but since Eisenhauer was not focused 

and had another incident that was more critical, “we just put both incidents together in one 

letter.” (Tr. 698-699). By contrast, for Clapp’s first incident involving minor property damage, 

Clapp received a second last and final warning, was suspended for two days without pay, and 

lost a second-quarter performance bonus.17 

15 Clapp was told through an unidentified source that Eisenhauer also broke the hydraulic 

lines on the dozer. (Tr. 286-87). I decline to give any weight to this hearsay, absent some 

independent corroboration. 

16 The warning emphasized the responsibility of each employee to take proper 

precautions, complete a thorough risk assessment, communicate and follow proper procedures to 

ensure safe operations, and concluded that any additional safety incidents will lead to further 

disciplinary action, up to and including termination. (G. Ex. 21). 

17 As noted above, Clapp received her initial last and final warning for a seat belt 

violation that she took responsibility for after complaining to Vaccari that Robinson and Fischer 

sent a crew pickup vehicle with an insufficient number of seatbelts for crew members that they 

should have known were present. 

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On September 2, 2009, based on poor judgment and incident history, Eisenhauer received 

a last and final warning for an incident that occurred on August 13, 2009. Eisenhauer bent a 

steel on a drill, did not report the incident to his supervisor until over a week later, and tried to 

hide the incident from discovery. The warning stated that Eisenhauer demonstrated poor 

judgment by not reporting the incident immediately and trying to conceal the damage. The 

warning further emphasized Eisenhauer’s incident history and documented that he had two 

property damage incidents in 2006, two property damage incidents in 2007, and three property 

damage incidents in 2009, with a written warning issued on June 16, 2009. Eisenhauer was 

removed from performance pay for the third quarter of 2009 and was demoted from a Level 5 

driller to a Level 3 haul truck operator. (Tr. 699; G. Ex. 23). Colby testified that Eisenhauer 

was not suspended for two and-one half days or sent home because Respondent felt his problem 

warranted longer-term disciplinary action. (Tr. 700). 

In response to a leading question from counsel, Colby then testified that Eisenhauer’s 

discipline was more severe than Clapp’s in light of the two-step downgrade (Tr. 701), but I am 

not so easily persuaded. First of all, Eisenhauer got a free pass on his first property damage 

incident in 2009. In addition, although Colby testified that Eisenhauer had no prior discipline in 

his file, the September 2 last and final warning reveals that Eisenhauer had two property damage 

incidents in 2006 and two property damage incidents in 2007. Furthermore, Eisenhauer had 

three property damage incidents in 2009, and failed to report and tried to conceal damage 

concerning the third 2009 incident. Clapp’s disciplinary history was hardly comparable and the 

harshness of her disciplinary warnings has been shown to be suspect. In these circumstances, I 

conclude that there is sufficient probative evidence in the record to warrant the inference that 

Clapp was disciplined more harshly than Eisenhauer based on her recent safety complaints. 

5. In July 2009, Clapp Moves the MMC Screen That Was Blocking Her 

Vision in the 103 Shovel 

A. The July 13, 2009 Incident 

Clapp again was assigned to the 103 shovel on July 13, 2009, when her shovel was down. 

(Tr. 140, 794; G. Ex. 16, p. 2). Clapp testified that contrary to what Bunker told her after her 

March 2009 complaints, the screen had not been moved. (Tr. 140). Fischer testified that 

Respondent had put in a request to have the screen moved and he corroborated Robinson’s 

testimony that Respondent did not know that the screen had not been moved when Clapp was 

again assigned to the 103 shovel on July 13, 2009. (Tr. 863). 

On her July 13, 2009 pre-shift report, Clapp noted that the “MMC screen needs [to be 

moved] so that it doesn’t block my vision.” (Tr. 140, G. Ex. 16, p. 2). Clapp also noted that the 

adjustable foot rest was broken and was not high enough. Because Clapp had asked that the 

screen be moved back in March and it still had not been moved, Clapp called Robinson and 

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informed him that she was going to ask utility to bring her tools so that she could adjust the 

screen in order to see better. According to Clapp, Robinson said, “Okay.” (Tr. 141).18 

When the utility person arrived to adjust the mounted screen by tilting it down as in 

Clapp’s shovel, Clapp determined that it blocked the control panel on this shovel. (Tr. 141-142). 

Clapp decided to leave the screen plugged in and operational,19 but remove it from the mounted 

bracket, make a pad for it with clean flannel shirt rags, and place it against the wall behind the 

shovel seat. (Tr. 142). Clapp asked the utility person to inform Fischer and Robinson that 

Clapp had moved the screen. (Tr. 143).20 

Later that shift, Fischer called Clapp and told her to park her shovel as he and Robinson 

were coming to her cab. (Tr. 144). According to Clapp, when Fischer arrived, he immediately 

started yelling at her, noting that the screen was a $20,000 piece of equipment that could not be 

moved. Clapp indicated that she had moved screens before when Bob Brill and Wayne Franzer 

were her supervisors.21 Fischer said he did not care what she did on other crews, “you can’t 

move this screen.” When Fischer put the screen back in the window, Clapp said, “I’m safer than 

you Gerald. I’m safer than you. I have got to have vision in my shovel. I need to see. I’m 

responsible down here for not injuring anybody. I have to have my vision.” (Tr. 145). Clapp 

credibly testified that Fischer became furious and yelled at her loudly, “You are not safer than 

me.” As Fischer adjusted the screen, he yelled, “It doesn’t bother me, it doesn’t bother me at all. 

It doesn’t bother anybody but you. Bend over and look under it.” (Tr. 146-47).22 

Although Fischer denied raising his voice, I credit Clapp. (Tr. 864). According to 

Fischer, Clapp became pretty angry when Fischer remounted the screen. By his account, Clapp 

started yelling that she did not think he was safe, that he did not care about safety, and that he 

had never run a shovel before and should read the shovel manual. (Tr. 863, 867). According to 

Robinson, Clapp and Fischer had words, but Clapp did not appear angry that the screen had not 

18 Clapp testified that she had previously taken such action with her former ROS 

supervisor, Bob Brill. (Tr. 90-91, 141). 

19 Dispatch communicates over the screen by audible beap. 

20 Robinson testified that Clapp called him and said that she was she was going to call 

utility to adjust the screen. Robinson testified that he was later informed by the utility person 

that Clapp had instructed him to take the screen down and lay it behind the seat of the shovel. 

Robinson testified that it was inappropriate for Clapp to remove the screen. Rather, he suggested 

that she could have called him to arrange something different. Robinson claimed that he did not 

realize, until he assigned Clapp to the 103 shovel that evening, that the screen had not been 

moved since March. (Tr. 795). 

21 Robinson corroborated this by testifying that Clapp told them that Wayne Franzen, the 

prior lead on D crew, had taken the screen down before and laid it on a rag. (Tr. 796). 

22 Robinson conceded that the gist of the conversation involved Clapp’s claim that the 

screen created a hazard that prevented her from seeing other vehicles such as a rubber tire dozer. 

(Tr. 796). Robinson testified that both he and Fischer could operate the shovel and see out the 

window. (Tr. 796-97). 

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been moved. (Tr. 796). I credit Fischer and find that Clapp responded in kind. Fischer 

considered Clapp’s remarks demeaning. He testified that he did care about safety and did not 

think Clapp was safer than he was safe. (Tr. 863-64). I find that Clapp’s remarks were indeed 

provocative, but provoked by Fischer’s angry outburst and refusal to recognize her safety 

concern. 

Fischer sent Clapp to the pickup truck while the screen was remounted. (Tr. 865). 

Fischer testified that he and Robinson then both operated the shovel and made “improvements” 

regarding placement of the screen. He further testified that he experienced no visibility 

problems, but admitted, and the record confirms, that each shovel operator adjusts seat 

placement based on height, which may affect vision. (Tr. 135, 865, 454). As noted, Clapp was 

relatively short at 5 feet, 4 inches tall. I find that given her height, Clapp’s vision was indeed 

impaired. 

Fischer took Clapp off the shovel for the rest of the day and assigned Doug Christiansen 

to run it. (Tr. 146). 

B. The July 13, 2009 Meeting Concerning the Incident 

Fischer and Robinson drove Clapp back to the ROS office, slammed the door, and began 

an aggressive verbal assault on Clapp. (Tr. 147-48). Fischer began yelling and screaming, “I 

don’t care about the screen in that window. It doesn’t matter to anybody else. It doesn’t bother 

me. Bend over and look under it.” (Tr. 148). Fischer told Clapp that he could make her work 

in uncomfortable situations such as placing her in a track dozer at the top of a highwall, and that 

she would do that job until Fischer arrived, even if she thought it was unsafe. (Tr. 149-50). 

Clapp told Fischer that she will never do anything unsafe like that and she would park the dozer 

and wait for Fischer to come get her. (Tr. 149). Clapp told Fischer and Robinson that she 

needed vision for her safety and the safety of others on her coal run. Fischer and Robinson 

responded that the decision to use the monitors was coming from the top and was above their 

heads, and they could not do anything about it, so Clapp better get use to it. (Tr. 150-51). Clapp 

testified that she felt hurt, demeaned, shocked, and scared for the safety of miners because her 

safety complaints were ignored and not passed up the chain of command for appropriate 

problem-solving. (Tr. 149-151). 

Fischer testified that the purpose of the July 13, 2009 meeting was to address the tone of 

the “false accusations” that Clapp made while he was attempting to remount the screen. (Tr. 

866). Fischer testified that he told Clapp that he was not going to tolerate such outbursts, where 

she was screaming in his ear. He told her that she was bordering on insubordination, and was 

on two last and final warnings, so if he sent her home, the outcome was not going to be good. 

Fischer further testified that he told Clapp that it was better to work the issue out, discuss it, and 

move past it, and that he would put her back to work if Clapp thought she could work the rest of 

the night safely. (Tr. 871). Fischer testified that Clapp agreed with him and he felt that they 

“worked it out that evening.” (Tr. 875). Accordingly, Fischer did not discipline or send Clapp 

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home for insubordination. Rather, he “documented what happened in that meeting and we 

worked through it.” Id. 

Robinson did not testify about the closed door meeting with Clapp on July 13, 2009.23 

Even assuming arguendo that Clapp’s remarks toward Fischer bordered on insubordinate 

conduct on this occasion, I find herein that Fischer both provoked and condoned Clapp’s 

conduct. 

After the hour-long meeting, Clapp was assigned to run the blade the rest of the evening. 

(Tr. 870). She credibly testified that she felt hurt, scared, disappointed and afraid for her safety, 

and after speaking to her husband about the “emotionally devastating” incident, she decided that 

she would not let that happen again, without a witness. (Tr. 200, 204).24 

6. Clapp’s Safety Complaints About Dusty Conditions in the Pit and 

Her Repeated Requests for Water Trucks 

Clapp testified that on occasion she would need water for dust control at the shovel. “It’s 

dusty and you can’t see, it’s a health hazard, and I would call . . . over the radio for water.” Dcrew driver Miller confirmed that dusty conditions are definitely a problem down in the pit 

because a rubber tire dozer or blade operator would be down there performing their tasks when 

haul trucks would drive by and raise all kinds of dust such that one could no longer see the 

smaller equipment. (Tr. 526). 

Miller recalled operating a water truck about the summer of 2009. When it began to rain, 

Fischer and Robinson called Miller and instructed her to park the water truck and get in their 

pickup. (Tr. 520-21).25 When Miller got in the back seat, Clapp called over the radio and asked 

for a water truck. Miller credibly testified that Robinson then turned to Fischer and said, “I 

don’t care how many times she calls she is not getting a water truck.” (Tr. 521).26 

23 Clapp testified that sometime in July 2009, driver Cindy Miller called Clapp at home, 

very upset and crying about the fact that Miller had made a pre-shift suggestion to Robinson in 

private about water truck procedure and operating scrapers. Miller told Clapp that Robinson 

and Fischer took her into the back office and told her that she makes them look stupid by telling 

them how to do their job. Miller further told Clapp that she made an appointment with HR to 

discuss the situation, but Robinson and Fischer were present for the meeting, and “ganged up on 

her.” (Tr. 153-55). 24 As noted below, when a similar meeting took place on March 10, 2010, just days 

before Clapp’s March 18, 2010 discharge, Clapp recorded the meeting on tape. 

25 As Miller explained, given the large expanse of the mine, just because it is raining in 

one section does not mean it is raining in another. (Tr. 521). 

26 Fischer could not recall any such remark by Robinson, but testified that had he heard 

such a remark, he probably would have asked Robinson for an explanation. I credit Miller’s 

specific recollection in her testimony against self-interest, pursuant to the Secretary’s subpoena. 

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Clapp testified that throughout 2009, and more often in the winter months of late 2009 

and early 2010, she called Robinson and Fischer several times to request water, but her requests 

were ignored. (Tr. 108-09, 116). Miller confirmed that water trucks occasionally are used in 

the pit during the winter months. (Tr. 526). Clapp also called Fischer and Robinson during this 

time frame on behalf of several truck drivers on her crew, including Helen Clark, Fallon 

Halverson, and Bob Brown, because their requests for water were also ignored and they, unlike 

Clapp, chose not to risk angering Fischer or Robinson by continuing to call for water. (Tr. 112­

115). On two occasions during this time frame, Clapp called Fischer and Robinson to inform 

them that she was shutting down the run because neither she, nor the truck drivers, could see 

with the pit engulfed in dust. (Tr. 109-10). Once Clapp shut down the run, Fischer and 

Robinson immediately sent water. (Tr. 110).27 

In January of 2010, Clapp went to speak to the head of the mine’s safety department, 

Jimmy Andrews. Clapp told Andrews that she was having problems when she asked for a water 

truck during the winter months and that she needed his help. (Tr. 111). According to Clapp, 

Andrews was very receptive and told her that he would get her water. Clapp testified that she 

was then serviced by a water truck during day-shift rotation when the safety department was 

present, but continued to have problems on nights and weekends when no one from safety was 

on-site. (Tr. 111-12). 

7. In January 2010, Clapp Raises Continuing Concerns About Unmanned 

 Rubber Tire Dozers Parked Behind Her Shovel With The Safety 

Department 

In January 2010, Clapp continued to raise safety concerns about unmanned rubber tire 

dozers parked behind her shovel with Tyler McLaughlin from the safety department. (Tr. 103­

04). Clapp and McLaughlin rode in Clapp’s shovel and McLaughlin was very receptive to 

solving Clapp’s safety concerns about the issue. Clapp also informed McLaughlin that she 

suspected that the practice had now become deliberate after she raised her safety concerns with 

Fischer and Robinson earlier in the year. According to Clapp, this allegation troubled 

McLaughlin, who asked for time to think about how to handle that allegation. (Tr. 104). 

Thereafter, the rubber tire dozer was not parked unmanned behind Clapp’s shovel during day 

shifts when the safety department was present, but the practice continued on nights and 

weekends. (Tr. 104-105). 

8.	 Clapp’s Safety Complaints About Turning Around and Dumping 

Overloaded Coal Trucks Back at the Coal Face 

A. The March 2, 2010 Line-Out Meeting 

27 Robinson could not recall Clapp shutting down a run because it was too dusty. (Tr. 

738). I credit Clapp’s specific recollection over Robinson’s inability to recall the work refusals. 

Moreover, on cross, Clapp confirmed work refusals. (Tr. 300). 

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On March 1, 2010, Respondent installed the governors (speed regulators) on haul trucks 

operating the day shift. D crew returned for night shift rotation on March 2, 2010. Clapp 

credibly testified that during the 5-minute, March 2 line-out meeting for night shift, Robinson 

announced to D crew that the governors had been installed and would be triggered when a haul 

truck registered as overloaded, thus preventing the truck from traveling at greater than five mph. 

Robinson told the crew to turn the truck around and dump it back at the coal face if the governor 

was triggered, and if anyone had a problem with that, take it to Colin Marshall. Colin Marshall 

was the Respondent’s Chief Executive Officer. (Tr. 159-160; G. Exh. 17A p. 55). 

Clapp testified that miners were not given an opportunity to raise any concern during the 

meeting. “There was no talking whatsoever. It was meeting over, go to work. Clapp did not 

recall raising any safety concern during the brief line-out meeting. (Tr. 160). Haul truck driver 

Michelle Whitted, by contrast, recalled that Clapp voiced her concern that it was not safe to have 

a loaded haul truck turning around in the slot and dumping at the face and Clapp asked her 

supervisors whether and when the dump-back procedure had become a policy. (Tr. 561-64). 

Whitted testified that Clapp was not allowed to say a whole lot because “they told her that if she 

had a problem with it, she should take it to Colin Marshall.” (Tr. 562). Whitted testified that she 

believed it was Fischer, and not Robinson, who made the Colin Marshall statement at a 7 a.m. 

line-out meeting before day shift. (Tr. 562-63). Haul truck driver Halverson testified that Clapp 

and Miller raised concerns about dumping loaded coal trucks back at the coal face “in the lineout meetings,” but did not specify which meetings. (Tr. 617). 

Robinson testified that he told the night-shift D crew during the March 2 line-out that the 

governors had been installed on day shift with some problems. He testified that he told the crew 

that if the governors were triggered, then the trucks should be turned around and dumped at the 

face and the truck number reported to Robinson so that the truck could be re-calibrated by dayshift mechanics. He further told the crew that the truck should be light loaded the rest of the 

evening. (Tr. 740, 747; R. Ex. 18, which states “. . . light load that truck the rest of the shift. . . 

.”). Robinson corroborated Clapp that no one raised any safety concern at that time, but omitted 

any reference to Colin Marshall. (Tr. 747; R. Ex. 18). 

I credit Clapp and Robinson that no specific safety concern was raised by Clapp at the 

March 2 line-out meeting, although I find that Robinson did make the remark about Colin 

Marshall. In this regard, I note that Whitted’s recollection of this meeting was inaccurate, and 

Halverson’s testimony lacked specificity. 

B. The March 2, 2010 Radio Discussion About 

Truck Dumping Procedure 

Later that shift, after Clapp loaded haul truck no. 271 driven by Vic Young, Young called 

Clapp on the line-of-site channel. Young told Clapp that his governor had kicked in about 1,000 

feet down the slot, that his truck had slowed to 5 mph, and that (notwithstanding Robinson’s 

directive) he did not know what to do. (Tr. 168, 170-71). Clapp testified that she was about to 

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finish up her cut at the highwall when Young called to tell her that his truck was overloaded. 

Clapp testified that the two other coal shovels had broken down and therefore seven empty 

trucks would be coming down her run soon. (Tr. 173). 

Clapp told Young, “I don’t want to dump that truck down here, Vic. Take it to the 

hopper.” (Tr. 170). At that point, haul truck driver, Fallon Halverson, who had entered the run 

to be loaded, joined the line-of-site channel discussion. Halverson told Clapp and Young that 

the drivers had been directed in the line-out meeting to turn the trucks around if the governor 

kicked in and to dump the load in the coal face. (Tr. 17). After some further discussion back 

and forth, Clapp told Young to park the truck on the cable side and not to move it, while she 

called Robinson on the main channel. (Tr. 171-72). 

According to Clapp’s credible testimony, when Robinson answered, Clapp told him that 

truck no. 271 was overloaded with coal and that she did not want to dump the truck at the face. 

Clapp asked Robinson if he was sure that he did not want Clapp to let the truck proceed to the 

hopper. Robinson told Clapp that he was sure, and he directed her to have the truck turned 

around and dumped in the coal face. Clapp told Robinson that it was “stupid and unsafe” to do 

so, but she complied with his directive and instructed Young to dump his truck back at the face. 

(Tr. 172, 177).28 Fischer admitted at the subsequent March 10 meeting discussed below, that he 

condoned Clapp’s conduct and remarks on this occasion: “So I put that one aside. I let her vent a 

little bit. I didn’t say much about it, but it did bother me . . . . (G. Exh. 17A, p. 48).

 Before allowing Young to dump back at the face, Clapp asked Young to wait until she 

had finished maintaining the high wall and had cleared the other trucks in the run. Clapp 

finished her highwall cut and filled up the other trucks to minimize exposure to the high wall. 

Clapp then moved her shovel back and summoned a dozer to clean up the area so that Young 

could dump safely back at the face, about 40 minutes after he called to report his truck was 

28 The Secretary relies on Halverson’s testimony that she overheard Clapp tell Fischer 

and Robinson that she did not think it was safe to turn the truck around and dump back at the 

face. (Sec’y Br. at 14, citing Halverson’s testimony at 618). Halverson’s testimony that Clapp 

told Robinson on the radio on March 2 why she thought the policy was unsafe, i.e., that it was 

not safe to turn the trucks around in the slot, conflicts with Clapp’s testimony that she did not do 

so because Robinson did not ask. (Tr. 180). The Secretary also relies on Robinson’s 

admissions in G. Ex. 17A, p. 53 -- the surreptitious recording that Clapp made of the March 10, 

2010 meeting with Robinson, Fischer and HR representative Kirk Babcock, further discussed 

below -- that Clapp argued about the dump back procedure and raised a “safety trump” during 

the March 2 radio conversation by telling Robinson that it was unsafe to dump the trucks at the 

face. In addition, Robinson’s own notes of the conversation confirm that Clapp told Robinson 

that “it was a safety issue dumping trucks at the face as they would have to turn the truck around 

in traffic in the slot and back it under the shovel which she thought was dangerous.” (R. Ex. 18, 

lines 11-13). In these circumstances, I find that the preponderance of the evidence establishes 

that Clapp was mistaken when testifying that she did not tell Robinson over the radio on the 

March 2-3 night shift why it was unsafe to follow the truck-dumping procedure. 

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overloaded. (Tr. 173, 178). Clapp explained that she refused to dump a loaded coal truck 

under an unsafe high wall. (Tr. 178). 

Clapp had no more overloaded trucks that shift. (Tr. 178). Although Respondent argues 

that Clapp light loaded all night to avoid triggering the governors (Tr. 337; 1120-21), Clapp 

explained to Fischer during the subsequent March 10, 2010 meeting that she only light loaded 

for one set of high scales on Young’s truck that evening. (G. Ex. 17A, p. 56).29 After shift 

change the morning of March 3, Clapp told Young that she did not feel safe dumping coal trucks 

down in the shovel loading area because she did not want trucks to tip over and she thought that 

it was a dangerous place to turn trucks around. Young said he understood. (Tr. 178-79). 

After handing in her time card, Clapp spoke to mine manager Vaccari in the hallway to 

express her safety concerns about the truck dumping procedure. (Tr. 181-82). Clapp told 

Vaccari that she thought it was unsafe to turn around and dump loaded coal trucks in the uneven 

pit and she asked him why Respondent was doing this. (Tr. 182-83, 1115). Clapp opined that 

one could not overload coal trucks and testified that Vaccari agreed with her. According to 

Clapp, they talked about the inaccuracies of the scales. (Tr. 183-84). During the discussion with 

Vaccari, Clapp saw Robinson and then Fischer step out into the hallway about 15 feet away and 

give her dirty, angry looks behind Vaccari’s back. (Tr. 185-86). The discussion ended when 

Vaccari said that he was not aware of this new policy of turning around overloaded coal trucks to 

dump back at the face, and that he would check into it and report back to Clapp. (Tr. 183-84). 

Although Vaccari had difficulty at the hearing remembering what was said during this 

March 3, 2010 hallway encounter with Clapp, on cross examination he was presented with his 

deposition in which he confirmed that Clapp expressed concerns about dumping at the face 

because of an uneven floor. (Tr. 1115). Vaccari also admitted discussing ways to address 

Clapp’s concerns with Robinson and Fischer. (Tr. 1119). Moreover, Vaccari sent an e-mail to 

Fischer to inform him of his conversation with Clapp, but Respondent did not produce the e-mail 

at trial. (Tr. 930). 

At the hearing, the credible testimony of numerous other miners corroborated Clapp’s 

testimony that turning around and dumping loaded coal trucks back at the face raised various 

safety concerns, but those employees, unlike Clapp, did not report their concerns to management. 

(Tr. 417-19, 446, 449-453) (Artz); 503 (Stephens); 541, 552 (Miller); 565, 585-86 (Whitted); 

and 619-20 (Halverson)). Even Robinson conceded that there was a safety risk in dumping back 

at the face due to ground conditions, but noted that shovel operators could summon a rubber tire 

dozer and blade to “spot up” the area where the truck was going to dump to minimize the risk. 

(Tr. 744). Although Respondent attempted to show otherwise, the credible testimony of Artz, 

Miller and Halverson also established that turning loaded coal trucks around in the slot and 

29 In any event, Respondent witnesses do not rely on light loading as a basis for finding 

Clapp insubordinate and discharging her. 

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dumping then back at the face instead of at the hopper was a “new task” for which miners had 

not been trained. (Tr. 447, 549-52, 619-21).30 

C. Clapp Calls Supervisor Oistad to Express Her Safety Concerns 

Clapp credibly testified that she could not sleep when she returned home after shift 

change on March 3 because she was concerned about the truck dumping policy, the fact that she 

was instructed to dump Young’s overloaded coal truck in the face, and the fact that Robinson 

had told the crew during the line-out meeting that if they had a problem with the procedure, to 

take it to Colin Marshall. (Tr. 187). Clapp called ROS, Terry Oistad, a long-tenured miner like 

Clapp, who was working day shift, to express her concerns about the truck-dumping procedure. 

Clapp told Oistad that she was afraid to turn around trucks and have them raise their beds and 

dump coal down in the congested coal slot, particularly in light of recent truck accidents that had 

occurred at the mine in late winter and early spring. Clapp told Oistad that she felt that 

Respondent was pushing the line on safety by taking risks that were unnecessary. (Tr. 189, 

1023-24). 

According to Clapp, Oistad was very receptive and told her that his crew was not always 

turning trucks around and dumping back at the coal face when a governor was triggered. (Tr. 

189-90). Rather, Oistad told Clapp that he would send overloaded trucks to the hopper when 

conditions in the pit were not favorable for dumping, and that he had sent coal trucks to the 

hopper once the governors kicked in to ascertain how long the trip would take. (Tr. 190). 

Oistad also told Clapp that Helen Clark’s truck had not been hooked up to the governor system 

on March 2 because management knew that the truck scales were reading very high weight. (Tr. 

192). 

Oistad conceded in his testimony that Clapp raised safety concerns regarding congestion 

in the slot. (Tr. 1023-24). Oistad told Fischer and Robinson that Clapp had called him to 

express her concerns about the truck-dumping policy. (Tr. 773-74, 919-20). 

To the extent that Oistad’s testimony is inconsistent with Clapp’s testimony, I credit 

Clapp. Clapp’s testimony about her conversation with Oistad did not place Oistad in a favorable 

light with respect to his support of Respondent’s case. Having observed Oistad testify, I find 

that he carefully hedged his testimony to limit the damage to both himself and Respondent. 

D. The Events of March 9, 2010 

The D crew was off from March 5 until March 9, when they returned for day shifts. (Tr. 

765). Late into the day shift on March 9, driver Clark called Clapp and told her that the 

mechanics had pulled over Clark’s truck (no. 262) to install the governor system. Clapp asked 

30 30 C.F.R. § 48.7(a) and (c) requires that miners assigned to a new task shall be 

instructed in the safety and health aspects and safe work procedures of performing such task. 

See Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261-62 (D.C. Cir. 2005). 

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Clark if the mechanics were also calibrating her truck. Clark told Clapp that she did not know. 

(Tr. 192). After the governor was installed, Clark proceeded to Clapp’s shovel to be loaded. 

Shortly after Clark left Clapp’s shovel with her load, the governor on Clark’s truck was 

triggered. Clark called Clapp on line-of-sight channel 10 and asked Clapp what to do because 

the governor had kicked in on her overloaded truck. (Tr. 192). 

As Clark called, Clapp saw Fischer and Robinson enter the coal run and park their pickup 

directly across from Clark’s truck. (Tr. 192-93). Clapp told Clark that Clark was going to have 

to dump the truck because nothing had changed and Vaccari had not gotten back to Clapp. 

Clapp further told Clark that if Clark wanted, she could call Fischer and Robinson, who were 

now parked right across from Clark. 

Clapp testified that Fischer then began screaming over the line-of-site channel that he did 

not care what Joe Vaccari says because this was Fischer’s policy not Vaccari’s policy, so turn 

that truck around and dump it in the coal face.31 Fischer acknowledged that Clapp’s remarks 

really angered him. “So that really chapped me. I don’t know what Joe will come up with. I 

don’t know what his policy is.” (G. Ex. 17, G. Ex. 17A, pp. 51). As Fischer put it, “that was the 

straw that broke the camel’s back,” because it was Fischer’s decision, not Vaccari’s policy. 

(Id.). 

31 Respondent relies on truck driver Miller’s testimony that she overheard the 

conversation on the radio and the tone of the conversation was “just like any other talking, other 

than when Fischer said, ‘This is my policy.’” (Tr. 529). Miller did not elaborate. 

Fischer’s initial recollection of the conversation was hazy (Tr. 918-19), and Fischer did 

not deny raising his voice when he essentially told Clapp that this was his policy on D Crew, not 

Vaccari’s policy or mine policy. (Tr. 921-22). Given Fischer’s history of yelling at Clapp as set 

forth in the July 13, 2009 incident when Clapp moved the MMC screen that was blocking her 

vision in the 103 shovel, I credit Clapp, as partially corroborated by Miller, that Fischer was 

yelling at Clapp over the radio when he told her to dump the truck because it was his policy, not 

Vaccari’s policy. (Tr. 193, 321). 

Respondent also relies on the testimony of D-crew haul truck driver, Mark Chaplin, that 

he overheard Clark asked Clapp on the radio whether she was supposed to bring the load back, 

and Clapp told her “no, take it to the hopper.” (Tr. 996). Chaplin further testified that he did not 

hear Clapp say anything after that and did not recall whether Clark said anything. (Tr. 995-96). 

Chaplin further testified that he heard Robinson come on the radio and tell Clark to dump the 

overloaded truck and Robinson was not yelling. I do not credit Chaplin’s testimony. His 

testimony is in apparent conflict with Clapp’s and Fischer’s and I find his recollection vague, 

faulty and unreliable. 

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Clapp followed Fischer’s intemperate directive and backed her shovel up a little bit so 

that Clark could dump in a better spot. (Tr. 193). Clapp credibly testified that she felt 

uncomfortable dumping Clark’s truck that evening because she believed it was unsafe, but 

because Robinson and Fischer did not want to talk about the procedure, she felt compelled to 

follow their directive. (Tr. 194). 

Robinson testified that at the end of the shift on March 9, Clark told Robinson 

that she was upset because she felt that truck drivers were being put in the middle between 

supervisors and shovel operators with regard to dumping trucks at the face. Clark also 

purportedly told Robinson that she was afraid to tell Clapp that she was overloaded because 

Clapp would be angry with her. (Tr. 768). Robinson told Clark that the decision had already 

been made to dump overloaded trucks at the face, which took truck drivers out of the equation. 

Robinson further testified that after Clark spoke with him, truck driver Young also spoke 

with him. Robinson asked Young whether he felt uncomfortable and felt like he was being 

placed in the middle. According to Robinson, Young did not want to discuss the issue, but said 

that he could “see where somebody could think that.” (Tr. 769). 

Respondent did not call or subpoena either Clark or Young to testify. Accordingly, I 

give Robinson’s hearsay testimony little weight. Moreover, I note that Respondent witnesses did 

not establish that they it relied on the argument that Clapp allegedly made other drivers 

uncomfortable as a basis for finding her insubordinate and terminating her. 

Robinson told Fischer about his discussions with truck drivers Clark and Young. (Tr. 

770). Robinson and Fischer decided they would meet with Clapp before shift the next day 

because she was not following their directive with regard to the truck dumping policy, and “she 

wasn’t acting like a leader on our crew” by going to Vaccari and Oistad instead of Robinson and 

Fischer with her [safety] concerns, by arguing with Robinson and Fischer over the radio, and by 

making truck drivers feel uncomfortable. (Tr. 770-71, 928-29). 

E. The March 10, 2010 Meeting 

1. The Beginning of the Meeting 

On March 10, 2010, Clapp was assigned to operate her regular 106 shovel. After the 

normal break-out meeting, however, Robinson tapped Clapp on the shoulder and asked her to 

meet with him and Fischer in the ROS office. (Tr. 196). Given the “emotionally devastating” 

closed-door meeting that Clapp had previously had with Fischer and Robinson on July 13, 2009, 

Clapp went to the bathroom, retrieved a digital recorder from her lunch box, and surreptitiously 

recorded the meeting. (Tr. 200-04).32 

32 Wyoming is a one-party consent state. (Tr. 201-02). It is lawful to intercept a 

communication if one is a party to the communication or has received the prior consent of a 

(continued...) 

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At the outset of the March 10, 2010 meeting between Robinson, Fischer, and Clapp,33 

Robinson immediately referenced the line-of-sight radio conversation the day before when Clapp 

told Clark that she had not heard back from Vaccari about her safety concerns with the truck 

dumping policy. Robinson said that from a truck driver’s perspective, Clapp’s decision to go 

over his head made it look like Robinson did not know what he was talking about. (Tr. 198, G. 

Ex. 17, G. Ex. 17A, p. 2.). Clapp reminded Robinson that he had told the crew that if they had a 

problem with the truck dumping policy, they should speak to Colin Marshall. Robinson 

explained that he was not going to fight this battle because this is coming down from the top. 

(G. Ex. 17A, p. 2). So Clapp challenged Robinson as to why he would think a truck driver 

would perceive Robinson as not knowing what he was talking about if she followed the chain of 

command and took the issue to Vaccari. (Id. at 2-3). “And you said if you have a problem with 

that, go to Colin Marshall. You told us to go up. I have a problem with it. And you have never 

talked to me about it and you don’t want to because you said in that meeting if you have a 

problem, go up there. So I went to Joe . . . .” and called the other bosses to see what they were 

doing because there is no communication here. (Id. at 3). 

Fischer then interrupted and told Clapp that Robinson wanted to talk about how Clapp 

handled the issue on the radio the first night on March 2 when Young’s truck was overloaded, 

not last night when Clark’s truck was overloaded. (Id.). Fischer also indicated that he (Fischer) 

wanted to talk to Clapp about talking to other bosses. Although acknowledging that Clapp 

could call whoever she wanted, Fischer stated that he did not care how other crews did business, 

and reminded Clapp that he was running D crew, not Joe Vaccari. (Id. at 4). Clapp said, 

“Whatever. This is a mine site with four crews.” Fischer then reminded Clapp that she was on 

D crew and asked whether she agreed that she was in a position of leadership. Clapp responded, 

“I agree you don’t have any communication out here.” (Id.) Fischer said, “Well, let’s have it?” 

Clapp again noted that Robinson had directed her elsewhere with her problems. (Id. at 4-5). 

Robinson then offered the explanation that he did so because Clapp was “pissed on the radio” 

(...continued)
 

party to the communication. See Wyo. Stat. §7-3-602(b)(iv). Accordingly, the original DVD
 

recording and transcript of audible portions of the recording were marked for identification,
 

properly authenticated, and received into evidence as G. Exs. 17 and 17A, respectively, after
 

Respondent withdrew its objection to the transcript. (Tr. 19-30, 210-15, 228). The transcript of
 

the meeting itself is about 69 pages long. I summarize the crux of the meeting below. (G. Ex.
 

17A). 

33 Human Resource representative Kirk Babcock eventually joined the meeting, as set 

forth below. He reported to HR manager Doug Nutting, who reported to HR director Clemetson. 

(Tr. 1028–29.) Babcock impressed me as a relatively inexperienced human resource generalist, 

who held a Bachelor of Arts in telecommunications and had completed a 10-week, self-study 

program for a certification from the Society for Human Resources Management in June 2010. 

In my view, his remarks toward the end of the meeting essentially admonishing Clapp that 

questioning the policy over the radio and going outside the crew with her concerns was improper 

and undermined her supervisors’ authority (see G.C. Ex. 17A, p. 60-61 and 67-68), reflected 

ignorance of protected activity under the Mine Act. 

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and disagreed with Robinson’s decision to dump [Young’s] truck, and that Robinson he did not 

want to fight with Clapp over the radio. Clapp then explained that she did not want to argue over 

the radio either, and that is why she directed the drivers to call Robinson if they have an 

overloaded truck that Respondent was not fixing. (Id. at 5). Clapp then directly acknowledged 

that she understood Robinson’s directive to dump overloaded trucks, and light load them, if 

necessary, to get through the night (Id. at 5-6), but she again reminded Robinson that he told the 

crew that if they had a problem with the policy, go to Colin [Marshall], so she went to Joe 

[Vaccari]. “That’s not undermining you. You flat told us you didn’t want to talk about it,” 

Clapp said. (Id. at 6). 

Fischer then told Clapp that Respondent reneged on Robinson’s comment and henceforth 

“we want you to come to us first.” Clapp initially responded, “No, [Robinson] said go to Colin 

Marshall.” Fischer reiterated, “from here forth, we want you to come to us first.” Clapp replied, 

“Well, you’re pissed because I went to Joe.” (Id.) Fischer said that he was “pissed off” because 

Clapp told Joe that she had light loaded her trucks all night long. Fischer then instructed Clapp, 

“Don’t light load your trucks all night long.” Clapp responded, “Everybody is. Why are you 

concentrating on me?” Fischer answered, “Because you are throwing the biggest fit . . . .” 

Clapp denied throwing a fit, but Fischer rejoined that Clapp threw a fit over the radio. (Id. at 7). 

The two then went back and forth --yes you did, no I did not -- like a couple of pre-schoolers, 

until Clapp suggested that Joe [Vaccari] be in the meeting because Fischer would believe what 

he wanted to believe and that’s all.” Fischer then stated, “Well, I’m going to tell you, I’m not 

believing nothing.” Clapp then told Fischer, “I don’t care what you tell me.” (Id. at 8). 

Fischer then told Clapp where she stood with him because he was tired of these meetings 

also. Fischer noted that Clapp was first on his seniority list, and that she was a very productionoriented shovel operator, whom he was proud of, but “[i]t’s the other stuff that you need help 

with because you buck the system. You don’t like any changes.” (Id. at 8-9.) When Clapp 

responded that she communicates, Fischer told her that she was “making life miserable with 

everything except loading coal in those trucks.” Fischer then told Clapp that she needed to be a 

leader, that she can’t stop everything that comes down, that she needed to support the crew and 

company, that she did not, and that he was not asking her to do so, he was telling her to do so, 

and if she could not do that then “change will be made.” (Id. at 9.) Fischer further told Clapp 

that he was fed up with “fighting” with her, that “we’re going to enjoy our jobs” and “were 

going to gel, and we’re going to get along, and we’re going to lead, and we’re going to succeed 

from the top, which carries on to the bottom,” and that he was not going to have truck drivers 

who were scared to dump their loads. (Id. at 10). Fischer added, “The shovel operator is going 

to take them loads at the face because that is what we want, because we run this crew. Joe don’t. 

Terry Oistad don’t. Okay?” (Id.) 

When Fischer indicated that he was finished speaking, Clapp told Fischer that 

“[c]ommunication is one of the biggest things in safety,” which needs to be mine-site wide, and 

the biggest part of communication is listening, not talking.” When Fischer told Clapp that it 

works both ways, Clapp basically told Fischer that he can’t listen after he gets angry. Clapp told 

Fischer that she had a problem with the truck dumping policy, that she had been sent above 

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Fischer’s head and had nothing to hide, and that Robinson’s statement to take her problem to 

Colin Marshall led Clapp to conclude that Robinson and Fischer had already made their decision 

and did not want to talk about the issue. (Id. at 11). So Clapp explained that she took the issue 

“up the ladder” and asked Joe Vaccari why Respondent was dumping loaded coal trucks and 

why Respondent even had scales, and Vaccari advised Clapp that he never heard of a policy of 

dumping a loaded coal truck in the pit and he would check into the matter. (Id. at 12) Clapp 

then explained that the reason she called out to the mine and spoke with Oistad was to foster 

communication across the mine site by asking what other crews were doing, and that nothing she 

does is a secret. (Id. at 12-13).34 

Clapp told Fischer that every time we come in here, you are so angry like during the July 

13, 2009 MMC screen incident when you were so pissed off and screaming at me and told me 

that you could make my work uncomfortable. “What the hell is that?” (Id. at 13). 

Fischer then denied telling Clapp that he could make her work uncomfortable. Clapp 

told Fischer that is exactly what he said, and the two argued over the point until Fischer stated 

that he was not afraid to put Clapp [on a track dozer] in an uncomfortable situation out in the 

mine. (Id. at 13.. Clapp reminded Fischer that she had told him at the time that she would not 

work in an uncomfortable situation, and would park the vehicle until Fischer arrived, because 

safety is one of her top priorities, to which Fischer responded, “Well, I’m glad you’re getting on 

board.” (Tr. 14). On board, Clapp inquired, “I have 28 years,” to which Fischer responded, 

“You throw a lot of bullshit around.” Clapp replied, “Whatever. You do. You’re good at it.” 

The childish bickering then degenerated into a disagreement about whether Clapp acted like she 

had 28 years of safety, who valued safety more, and the fact that Fischer took offense at being 

accused of lying over exactly what he had said, until Clapp refocused the meeting on 

communication. (Id. at 14-15). 

Fischer then told Clapp that telling his boss (Vaccari) that Clapp light loaded trucks all 

night is not acting like a leader, and he instructed Clapp not to light load all night. Having 

admitted that he knew that Clapp had done so, Fischer then began to grill Clapp about whether 

she told Vaccari that she light loaded trucks all night. Initially, Clapp deflected the inquiry by 

noting that Helen Clark’s truck had been hooked up to the governors and not calibrated. (Id. at 

16). Then Clapp said, “Yeah, we back off.” Fischer then asked whether Clapp told Vaccari 

that she did not light load all night, and whether she lied to Vaccari. Clapp told Fischer to pull 

the records up and look, and Fischer asked, aren’t you the one complaining about 

communication. When Clapp asked Fischer if he knew how the scale works, Fischer again asked 

Clapp whether she told Vaccari that she light loaded all night. Clapp responded, according to the 

scale, no. Fischer then told Clapp that he could not get an answer out of her to a simple 

question, to which Clapp responded, I just answered you. Fischer asked again whether Clapp 

told Vaccari that she light loaded all night. Clapp responded that there was a problem with the 

scales. (Id. at 170). Fischer asked again whether Clapp told Vaccari that she light loaded all 

34 I note, however, that Clapp was surreptitiously taping the conversation as she uttered 

this remark because of her experience at the July 13, 2009 meeting in Fischer’s office. 

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night, to which Clapp responded, according to the scale, yes. Fischer then told Clapp that she 

told Vaccari that she light loaded all night because Fischer heard her tell Vaccari that. (Id. at 

18). 

2. Babcock Joins the Meeting 

When HR representative Babcock eventually joined the meeting despite Clapp’s requests 

for Vaccari (Tr. 775, 819; G. Ex. 17A, pp. 28 and 35), Clapp explained to Babcock that 

Robinson and Fischer were mad at her for communicating her safety concerns to Vaccari. (G. 

Ex. 17A, pp. 36-38). Babcock told her, “Well in this case the way the policy is set .... then you 

go with what the policy is .... If you are told that you need to turn a truck around, that it’s 

overweight, then you do just that. And if the question is out there and it’s being looked at, you 

just trust that the powers that be are looking at it. But until you get word of, you know, you 

don’t have to do this anymore, continue with the policy as is.” (Id. at 39). Babcock further told 

Clapp that she should not broadcast her concerns to her supervisors over the radio as it could be 

viewed as questioning authority. (Id. at 40-42). 

Fischer explained to Babcock that he was bothered by the fact that Clapp gave Robinson 

“a lot of feedback and flack on the radio,” and really got his “dander up” when she asked Oisted 

what his crew was doing and told Vaccari that she had to light load the trucks. (Id. at 46-49). 

Fischer further explained that “the straw that broke the camel’s back” was the incident of March 

9 when Clapp told Clark that Vaccari had not gotten back to her about the truck dumping policy. 

(Id. at 50-51). Robinson agreed with Fischer that as of March 9, Clapp still did not agree with 

the truck dumping policy and was intent on going to Vaccari, and that back on March 2, she 

“pulled a safety trump on me” by saying it was unsafe to dump at the face over the radio. (Id. at 

52-53). 

When Clapp insisted to Fischer that she could talk to anybody she wanted concerning her 

safety concerns (Id. at 57), Fischer opined that Clapp had not learned a single thing during the 

meeting (Id. at 59), and Babcock admonished Clapp that questioning the policy over the radio 

and going outside the crew with her concerns was improper and undermined her supervisors’ 

authority, which he expected her to follow. (Id. at 60-61). Clapp indicated that she was 

communicating her safety concerns and not undermining authority, and that Cordero focused on 

her for communicating her concerns when other crews were driving down the road and dumping 

at the hopper (Id. at 62-63).35 Thereafter Clapp took a bathroom break. (Id. at 67). 

35 I note that haul truck driver Artz credibly testified that he had actually taken an 

overloaded haul truck to the hopper and management was aware of it through the MMC system, 

but did not discipline him for the refusal to follow instructions. (Tr. 422-23). Similarly, Whitted 

credibly testified that Robinson was aware that Young took an overloaded truck to the hopper 

and Respondent introduced no evidence that Young received any discipline for the failure to 

follow Robinson’s instructions to dump back at the face. (Tr. 581-83). 

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3. Clapp’s Restroom Break and Meeting with Safety 

When Clapp initially returned from the bathroom, Cliff Oedekoven, a utility person, told 

her that Fischer, Robinson and Babcock needed some additional time to talk in private and they 

would come get Clapp when they were ready to reconvene. (Tr. 230-31). While she waited, 

Clapp went to the safety department to raise her safety concerns with the truck-dumping 

procedure and because she was emotionally upset and uncomfortable about the fact that she had 

been pulled into the back room again because her safety concerns were not being addressed. (Tr. 

231-32.) 

Josh Tompkins, a safety representative, was meeting with Michelle Whitted, a D-crew 

haul truck driver and member of the safety training team. (Tr. 231, 234, 268). Whitted was 

telling Tompkins that communication had closed down and there was no longer any open door 

policy. She asked Tompkins for advice. (Tr. 569-570). Thompson told her to call the “Speak 

Out” line,36 or talk to Vaccari. 

At that point, Clapp walked in and complained about the meeting she was having with 

Fischer and Robinson. (Tr. 232, 569). Clapp and Whitted then spoke to Tompkins about the 

truck-dumping procedure and the “March madness” safety incentive game. (Tr. 233, 570). 

Clapp told Thompson that she felt the truck-dumping procedure was unsafe, but she had been 

instructed not to talk to Robinson and Fischer about it because Robinson told the D-Crew in the 

line-out meeting that if you have a problem with the procedure, take it to the top. Clapp also told 

Tompkins that she had spoken to Vaccari about the truck-dumping procedure and Robinson and 

Fischer were mad at her for talking to Vaccari. Clapp further told Tompkins that Robinson and 

Fischer were unapproachable and that one could not communicate with them. (Tr. 233). 

Whitted told Tompkins that she gets often “dragged in the back room” with Robinson 

and Fischer, and mentioned a recent incident involving the “March madness” safety incentive 

game. (Tr. 235-36). According to Clapp, Tompkins told them that he had been hearing a lot of 

bad things about Fischer allegedly throwing away employee safety suggestions and discouraging 

miners from playing the safety incentive game. (Tr. 236). Tompkins told Clapp and Whitted 

that they needed to get help and let someone know how they were being treated at the mine. (Tr. 

236-37). According to Clapp, Tompkins, Clapp and Whitted discussed three options, the Speak 

Out program, Human Resources (HR), or Joe Vaccari. (Tr. 237). Clapp and Whitted opined 

that the Speak Out program was inappropriate because it was outside the mine, and that HR did 

not keep matters confidential and made employees feel uncomfortable. According to Clapp, 

Tompkins concurred with the notion that HR did not keep matters confidential, and he told them 

they needed to let Vaccari know what was going on. (Tr. 237, 570). 

36 Clapp described the Speak Out line as a program outside the mine that employees 

could call with confidential concerns. (Tr. 238). 

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On the other hand, Tompkins testified that Clapp was upset and remained in his office for 

about an hour, but he could not recall whether Clapp raised any safety concerns. (Tr. 1008). 

Tompkins further testified that he told Clapp to follow the chain of command and go through 

Robinson and Fischer, Colby, and then Vaccari with her concerns. 

I was unimpressed by Tompkin’s testimony and inability to recall, and I credit Clapp and 

Whitted that they spoke to Tompkins about the truck-dumping procedure and the safety incentive 

game. (Tr. 253, 570). Tompkins struck me as a witness who had been well prepped to rebut 

damaging statements attributed to him against the company by Clapp and Whitted, and I find his 

testimony generally untrustworthy and an effort to make amends. In any event, I credit the 

mutually corroborative testimony of Clapp and Whitted that they raised safety concerns with this 

lower-echelon, safety representative. 

4. The Resumption and Conclusion of the March 10 Meeting and the 

Events Following That Meeting 

During the discussion with safety representative Tompkins, Clapp was summoned to 

return to the meeting with Robinson, Fischer and Babcock. (Tr. 238). When Clapp returned to 

the meeting, Babcock told Clapp that there were some concerns about her ability to follow the 

chain of command and communicate through Robinson and Fischer about her concerns, and 

since emotions were high and management had safety concerns about sending Clapp out on the 

shovel, they had decided to send her home with pay.37 Babcock said, “You can take the day. 

Think about it, and then come in tomorrow ready to go. We’ll finish up the conversation 

tomorrow, and then, you know, and go from there. But the bottom line is that . . . any concerns 

have to go through them [Robinson and Fischer]. Okay?” (G. Ex. 17A, p. 67-68).38 

Clapp affirmatively acknowledged the need to communicate through Robinson and 

Fischer, explained that she does communicate with them and follow the chain of command, and 

explained why she did not come to them with the truck-dumping procedure because she was told 

to go elsewhere, i.e., to Colin Marshall. She further explained that there had been no attempt to 

undermine them, just a breakdown of communication. (Id. at 68; Tr. 238). Finally, Babcock 

admonished Clapp that as a leading crew member, if she disagreed with management policy, she 

should bring it to management’s attention in a one-on-one conversation, but not argue with 

management over the radio. (Id. at 68-69). Clapp agreed that she would follow procedure and 

the meeting ended. (Id. at 69). 

Fischer testified that after Clapp left the meeting, he, Robinson and Babcock continued to 

discuss what they were going to do about Clapp. Fischer recommended to HR (apparently 

37 Clapp described this as discipline, i.e., being sent home with a penalty-pay day. (Tr. 

238-39). The Secretary does not raise this discipline as a separate complaint allegation. 

38 Babcock conceded on cross examination that he did not set a specific meeting place, 

time or agenda, nor specify who would attend. Rather, he just instructed Clapp to report to 

work at the normal time. (Tr. 1054). 

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Babcock), that Clapp be demoted to a level 5 shovel operator because Clapp would not answer 

or communicate with him and was not taking a leadership role as a level 6 shovel operator. (Tr. 

952-53). There was no discussion about terminating Clapp at that point. (Tr. 954). On March 

10, Babcock briefed Vaccari about what occurred during the meeting with Clapp earlier that day. 

(Tr. 1087). 

Babcock testified that after Clapp left the March 10 meeting, Babcock, Colby, Fischer 

and Robinson decided to give Clapp a written letter of discipline demoting her to a level 5 shovel 

operator because of the lack of leadership that she was showing. (Tr. 1041-42). When asked 

what the basis for his support of that decision was, Babcock testified, “Insubordination she had 

shown during the last couple of weeks.” (Tr. 1042). When asked to explain, Babcock testified 

that he meant the questioning of authority that [Robinson] and [Fischer] had given her, the 

comments that Clapp made over the radio to her crew, and the lack of acknowledgment during 

the March 10 meeting that Robinson and Fischer were her supervisors. (Tr. 1042).39 

After the meeting ended, Clapp went back to safety representative Tompkin’s office. 

Clapp testified that she felt, hurt, scared, emotional, and stressed after the meeting because her 

safety concerns were not being addressed. When asked by the undersigned why she was scared, 

Clapp explained: “I’m scared for my coworkers’ safety and mine. You can’t talk about safety 

out there. You can’t approach Dave and Gerald.” (Tr. 240). 

Tompkins asked Clapp if she was okay. When Clapp said no, Tompkins handed her a 

piece of paper with his phone number and the phone numbers for HR and Vaccari. Tompkins 

told Clapp that she needed to talk to somebody. (Tr. 239-240). 

Thereafter, Clapp’s husband picked her up at work and they spoke about contacting her 

former supervisor, Bob Brill, then retired. (Tr. 240). Clapp decided to visit Brill at his home 

because she was concerned about the way workers were treated by Robinson and Fischer, who 

39 I do not credit this testimony from Respondent’s witnesses that they decided to give 

Clapp a written letter of discipline demoting her to a level 5 shovel operator. I note that no 

letter of discipline was ever introduced into evidence and no explanation for failure to do so was 

provided. Respondent had already sent Clapp home for the day. Moreover, it is reasonable to 

assume that Respondent would have prepared a disciplinary letter to give Clapp the next day if 

Respondent had truly decided on demoting her. Furthermore, the reasons that Babcock gave 

for the purported demotion were part of the res gestae of Clapp’s protected activity as found in 

my analysis below, and they were the same reasons that Babcock relied on in explaining why 

Clapp was terminated for insubordination, which I have found to be pretextual, as further 

explained in my analysis below. Finally, as further discussed below, I find that Clapp was not 

insubordinate during the meeting, and that any intemperate remarks that she made were 

essentially provoked by Fischer and fell within the res gestae of her protected activity. 

Accordingly, there is no lawful basis for any remedial argument from Respondent that any 

reinstatement of Clapp should be to a Level 5 operator position. In any event, Respondent has 

not raised that argument before me. 

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were unapproachable, and she had safety concerns about the truck-dumping policy. (Tr. 241). 

Clapp told Brill that she felt it was unsafe to be turning trucks around down in coal and dumping 

loaded coal trucks by the shovel. She told Brill that Robinson and Fischer were aggressive and 

unapproachable and did not want miners to talk about safety. Clapp mentioned the incident 

when she pushed the truck off the highwall. Clapp asked whether she should talk to Vaccari 

because she was uncomfortable talking to HR. Brill advised Clapp to talk to Vaccari. (Tr. 241­

42). 

Clapp credibly testified that she could not sleep that evening after the meeting with 

Robinson, Fischer and Babcock. She was concerned that the whole atmosphere in the pit had 

changed when working with Robinson and Fischer. As Clapp put it, miners no longer wanted to 

talk to management and were afraid to raise safety concerns. Rather, they called her with their 

safety concerns, and when she raised such concerns, they were ignored or resulted in accusatory 

or threatening back-room meetings. (Tr. 242-43). 

F. The Events of March 11, 2010 

At about 5 a.m. on March 11, 2010, Clapp called Vaccari at home. Clapp told Vaccari 

that she had serious concerns about issues at the mine and asked to speak to him about them. 

Vaccari told Clapp that she could speak to him anytime. Accordingly, Clapp made an 

appointment to speak with Vaccari during her 7-day off period on Friday, March 12 at 8:30 a.m. 

Before hanging up, Clapp told Vaccari that she had been up all night because of her concerns 

and did not feel that she should come to work and she was going to take a floating holiday 

(“floater”) for her shift that morning. (Tr. 244, 1090).40 According to Clapp, Vaccari said, “I 

understand.” Tr. 244. Vaccari confirmed making this remark and was aware of the fact that 

Clapp might assume that it constituted tacit approval form the mine manager to take the floater . 

(Tr. 1091, 1120-21). 

After calling Vaccari, Clapp called Robinson and told him that she was taking a “floater.” 

(Tr. 247). According to Clapp, Robinson was “dead quiet” at first, and then asked, “Are you 

sick?” (Tr. 247). Clapp said, “No, I am taking a floater,” and the line went quiet again until 

Fisher picked up. Fischer asked what Clapp wanted, and Clapp said that she was taking a 

floater. According to Clapp, Fisher said, “You can’t we got meetings.” (Tr. 247). Clapp 

40 On direct examination, Clapp testified that floaters are holidays that can be taken off 

without advance notice, and that miners have 32 hours of floating holidays per annum, which can 

be taken in 8-hour increments. (Tr. 86). Clapp testified that she did not have to give advance 

warning that she was taking a floater, but called her supervisors to give them time to set up the 

board so that she could take a floater. (Tr. 246). On cross examination, however, Clapp 

admitted that she needed approval from her supervisor to take a floater. (Tr. 349). Clapp had 

never seen, and Respondent failed to introduce, any written policy on floaters. (Tr. 247). 

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responded that she did not know that, and she was taking a floater. According to Clapp’s 

credible testimony, Fischer said, “Okay, fine,” and hung up. (Tr. 247). 

Respondent’s witnesses offered a different version of these events and argue that Clapp 

was directly insubordinate when she took a floater and failed to report for a scheduled meeting. 

Vaccari testified that miners needed to request permission to take floaters, that floaters can be 

denied, and that Fischer was within his authority to refuse Clapp’s request for a floater. (1092). 

Vaccari further testified that it is very unusual for a miner to ignore a supervisor’s directive 

concerning a floater. (Tr. 1093). Colby and Fischer testified that they have never had an 

employee take a floater after being denied permission. (Tr. 679, 949). In fact, Colby considered 

Clapp’s refusal to report on March 11 to be directly insubordinate because Respondent 

purportedly had a policy that supervision has to approve a floating holiday. (Tr. 679). 

On cross examination, Clapp testified that she thought she had Fischer’s permission to 

take the floater and that she did not know she had meetings. I credit this testimony from Clapp. 

Clapp also testified that she did not hear Babcock’s statement during the March 10 meeting that 

they would finish up the conversation tomorrow and take it from there. (Tr. 350) I discredit 

Clapp’s testimony that she did not hear Babcock’s statement given the emotional nature of the 

meeting. I note that Clapp directly answered Babcock’s ensuing question by acknowledging that 

her concerns must go through Robinson and Fischer. (Tr. 352) I credit Clapp’s testimony, 

however, that she believed that she had Fischer’s permission, albeit reluctant, to take a floater, 

and that no specific meeting was scheduled, just a continuation of the discussion when she 

reported for work. I note that Babcock’s statement during the March 10 meeting was 

ambiguous. He told Clapp, “You can take the day. Think about it, and then come in tomorrow 

ready to go. We’ll finish up the conversation tomorrow, and then, you know, and go from 

there.” Vaccari’s notes from his subsequent March 12 meeting with Clapp and Whitted, 

discussed below, confirm the fact that Clapp told him on March 12 that Fischer did not say that 

Clapp could not take a floater on March 11. Rather, Fischer said “OK goodbye.” (Tr. 1096; R. 

Ex. 20). In addition, I find that Clapp already had obtained Vaccari’s tacit approval to take a 

floater on March 11, given her emotional state. 

I infer that Fischer realized that something needed to be done so that he could resolve 

outstanding issues with Clapp because she was not scheduled to return to work again until March 

19. (Tr. 1050). Accordingly, when HR Director, Amy Clemetson, arrived at the mine that 

morning, Fischer told her that “we had a meeting set up that morning for 7:00 and that Cindy 

called in and told me she was taking the day off.” According to Fischer, Clemetson said that she 

would give Clapp a call and tell her that she has to be in by 9 a.m. for the meeting. According 

to Fischer, Clemetson later followed up and told Fischer that she could not reach Clapp, but left 

a message. (Tr. 951). 

According to Clemetson, Fischer told her “that Cindy had not shown up for a meeting 

that they had scheduled that morning, that she had called in and asked for a floater, and he told 

her that she needed to come out to her meeting. And she told him no, and he let her know that 

HR would call her.” (Tr. 1135). As noted, however, I have credited Clapp’s testimony, that 

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Fischer ended the conversation by saying “Okay, fine.” (Tr. 247). As further noted, I have 

found that Clapp already had obtained Vaccari’s tacit approval to take a floater. 

Clemetson testified that she looked up Clapp’s home number in Respondent’s automated 

system. Clemetson then called Clapp at home at about 6:50 a.m. and left a message on Clapp’s 

answering machine. Clemetson’s message indicated that Clemetson was aware that Robinson 

and Fischer had a meeting scheduled with Clapp that morning, and directing Clapp to report to 

the mine site by 9 a.m. for the meeting and to call with any questions. (Tr. 1136, 1143). 

Babcock testified that he was present when Clemetson left the message. (Tr. 1047). 

Clapp credibly testified that she checked her messages that day and did not receive a call 

or message from Clemetson or anyone else at the mine. (Tr. 247-48, 251).41 Rather, after Clapp 

spoke with Fischer, she went to bed and slept the rest of the day. (Tr. 248). 

Clemetson admitted that she had heard that Clapp never received her message to report to 

a meeting on March 11. On questioning from the undersigned, Clemetson could not recall when 

or from whom she heard this. (Tr. 1144-45). 

After Clapp called for the floater on March 11, Robinson, Fischer, and Colby discussed a 

recommendation to terminate Clapp because they purportedly had decided that termination was 

their only option when Clapp did not show up for the meeting. (Tr. 789). Colby informed 

Fischer that Clapp had a meeting scheduled with Vaccari the next day and that Vaccari wanted to 

meet about Clapp later in the week. (Tr. 786, 955-57). 

Vaccari testified that Clemetson made him aware that Clapp had missed the meeting 

scheduled to take place with Clapp on March 11, 2010. (Tr. 1093). Vaccari also testified that 

Fischer informed him sometime after Vaccari arrived on March 11, that Clapp had requested a 

floater and that Fischer said, “No, you need to be out here for a meeting.” (Tr. 1091). Vaccari 

admitted telling Fischer that Clapp had called Vaccari early that morning, but could not recall the 

specifics of what he told Fischer. (Tr. 1091-92). When the undersigned asked Vaccari if he 

told Fischer that Clapp had told Vaccari that she was up all night and could not sleep and needed 

to take the day off, Vaccari obliquely testified as follows: 

She said she was going to take the day off. She did not ask him if she 

could take the day off. I said I understood, and told Gerald that after 

he’d already had a conversation with Cindy. 

(Tr. 1092). As noted, when Vaccari spoke with Fisher, Vaccari had already given tacit approval 

to Clapp to take the floater. 

41 Clapp’s husband was home from work that day. (Tr. 252). 

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On the afternoon of March 11, Vaccari, Clemetson, Babcock, Colby, Fischer and 

Robinson met to discuss the next step of the disciplinary process for Clapp. At that point, the 

participants learned, if they did not already know, that Clapp had called Vaccari earlier that 

morning and had made an appointment to meet with him the next day, Friday, March 12. (Tr. 

1047-48). The group brought Vaccari up to speed on what happened that morning. (Tr. 1137). 

Vaccari decided that no disciplinary decision would be made on March 11, so soon after the 

heated meeting on March 10. Vaccari wanted to meet with Clapp on Friday, March 12, and let 

everyone take the weekend to think things over, before regrouping the following week. (Tr. 963, 

1048, 1137). 

G. Clapp and Whitted Concertedly Raise Safety Concerns During the 

March 12 Meeting With Vaccari 

Towards the end of the day on March 11, Clapp and Michelle Whitted spoke to one 

another. Whitted agreed to go with Clapp to speak with Vaccari the next day. (Tr. 249-250, 

592). They wanted to talk to Vaccari about the issues raised with safety representative 

Tompkins, including the fact that they were tired of being dragged into the back room and tired 

of being unable to talk about safety. (Tr. 250). 

Whitted gave Clapp a ride to the meeting, which took place in Vaccari’s office on March 

12. (Tr. 253, 591-92). Before the meeting, Clapp had called Vaccari’s office to let him know 

that Clapp and Whitted would be meeting in concert with Vaccari. (Tr. 252-53). 

Vaccari perceived his role in the meeting as a passive listener who allowed the 

employees to vent over the problems they had, but not to resolve any issues. (Tr. 1094-95). 

Vaccari took contemporaneous notes to “capture the gist” of the concerted activity. (Tr. 1095). 

Clapp started the meeting by telling Vaccari that his was the hardest thing that she has 

had to do at work because of the seriousness of her concerns. (Tr. 254; R. Ex. 20, p. 1). Clapp 

wasted little time before homing in on her prior, protected activity by reiterating her safety 

concerns about turning around loaded coal trucks in the slot and dumping them at the face, and 

questioning why Respondent was engaged in such procedure. (Tr. 254, R. Ex. 20).42 Clapp told 

Vaccari that Robinson and Fischer were angry with her for expressing her safety concerns to 

Vaccari and Oistad after Robinson had told the crew that if they had a problem with the truckdumping procedure to take it to Colin Marshall. (Tr. 254, 256). According to Clapp’s credible 

42 Although Respondent argues on brief that Clapp voiced no concerns over dumping in 

the coal face, as shown in Vaccari’s contemporaneous notes (Br. at 16), this is clearly not the 

case and I discredit Vaccari’s denial to the contrary. (Tr. 1096). Moreover, Whitted 

corroborated Clapp’s testimony and Vaccari’s notes (R. Ex. 20, p. 1), both of which establish 

that Clapp raised the dumping at the face policy as a safety concern. (Tr. 579). When I asked 

Vaccari what his notes meant, he incredulously could not recall. (Tr. 1098). 

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testimony, Vaccari stated that he knew the trucks were not overloaded and he agreed with 

Clapp’s observation that Respondent had experienced a lot of accidents at the beginning of 

winter. (Tr. 255). 

Whitted and Clapp then focused the conversation on the safety incentive game and the 

fact that Robinson and Fischer discouraged and intimidated employees in back-room meetings 

from raising safety concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s March 12 notes 

described the March 10 meeting with Clapp as an “Intimidation Mtg” in which an “extremely 

angry” Fischer allegedly told Clapp “you make me sick always talking safety” and using “safety 

to get her way.” (R. Ex. 20, p. 1). 

When Vaccari asked what they felt would solve their problems, Clapp opined that 

Fischer and Robinson needed sensitivity training on how to treat and get along with co-workers, 

and Whitted opined that Clapp was too nice and Fischer and Robinson should be fired. (Tr. 

256). At the end of the meeting, Clapp and Whitted expressed how uncomfortable they felt 

expressing such serious concerns to Vaccari. Vaccari offered the platitude, “We can keep it in 

the family.” (Tr. 257-258).43 

H. The March 17, 2010 Termination Decision 

Vaccari, Clemetson, Colby, Babcock, Fischer and Robinson met on March 17 and 

decided to recommend Clapp’s termination for insubordination.44 (Tr. 679, 785, 959, 1050-51, 

1105-06, 1137-38). Vaccari told the “family” about Clapp’s [and Whitted’s] complaints. (Tr. 

959, 966, 1101-02, 1105-06). 

Robinson and Colby recommended termination for insubordination because Clapp 

purportedly refused to come to work for the meeting on March 11. (Tr. 709, 728, 788). In fact, 

on cross examination, Colby, who signed the March 18, 2010 discharge letter ( R. Ex. 1), limited 

the discharge to this justification. (Tr. 724-25). Fischer confirmed that Clapp was terminated 

for the alleged insubordinate act of not showing up for the meeting. (Tr. 967). 

Babcock, by contrast, recommended termination for insubordination because Clapp 

attempted to send trucks to the hopper that were overloaded, challenged Robinson over the radio 

regarding the truck-dumping procedure, went to another supervisor with her concerns, failed to 

43 Vaccari impressed me as a paternalistic, grandfather-like figure, who tried to appease 

everyone, but ultimately was going to back up his management team rather than take on the 

difficult issue that communication about safety issues had broken down on Fischer’s crew and 

Fischer’s and Robinson’s supervisory style had contributed to the problem. 

44 Vaccari, HR and Colby made the actual decision (Tr. 1142), and a corporate 

compliance committee comprised of the chief legal counsel, vice president of HR, chief 

operating officer, and CEO ultimately reviewed and failed to challenge the termination decision. 

(Tr. 1107-1108, 1141). 

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acknowledge that Robinson and Fischer were her supervisors during the March 10 meeting, and 

failed to post for the March 11 meeting that Babcock purportedly had scheduled. (Tr. 1051). 

HR Director Clemetson supported the recommendation for termination because Clapp 

allegedly disregarded the instructions of her supervisor to dump overloaded coal trucks back at 

the face. (Tr. 1139-40) She explained: 

.... For me, when plans are made and set, it’s the expectation that 

employees are going to follow it, especially after it has been 

communicated. And having an employee just go out and do what they 

wanted or change that plan, it was causing – in my opinion, was a 

safety risk to that employee as well as the others around them. 

(Id.) In addition, Clemetson noted that Clapp continued to show disrepect or disregard for the 

instructions of her supervisor by failing to show up for the March 11 meeting. (Tr. 1140). 

Vaccari recommended termination for insubordination based on Clapp’s full record 

because Clapp allegedly refused to listen to her supervisor and failed to show up for the March 

11 meeting. (Tr. 1106-07). As Fischer put it, Vaccari said, “I’m in agreement with you all and I 

support my leadership team in the decision.” (Tr. 965). 

I. The March 18, 2010 Termination of Clapp and 

Subsequent Retaliation Against Whitted
 

Clapp was not scheduled to return to work on the D Crew until March 19. (Tr. 257). On 

March 18, 2010, Clemetson called Clapp and left a message on her answering machine. Clapp 

received the message informing Clapp that Clemetson, Colby and Fischer wanted to meet with 

her at 3 p.m. in the corporate office and to call back to confirm that she received the message. 

(Tr. 258, 1141-42). Clapp called Clemetson back and left a message confirming that she would 

be at the March 18 meeting. (Tr. 258). 

Clapp arrived at corporate on March 18 with a large thermos of coffee. Clemetson 

escorted her to the meeting room where Colby and Fischer were present. Clemetson handed 

Clapp a termination letter (R. Ex. 1), signed by Colby, and said Cindy you are terminated. (Tr. 

258). The termination letter stated that although Clapp’s employment was at will, “[t]he reason 

for this termination is due to your insubordination towards leadership and for other legitimate 

business reasons.” (R. Ex. 1). Clapp testified that she read the letter, said nothing, and left. (Tr. 

258-59). Clemetson asked if Clapp had any questions and Clapp said no. Clemetson told Clapp 

to give her a call to arrange to pick up her belongings at the mine site. (Tr. 1145). Clapp 

credibly testified that she was totally shocked by the termination. (Tr. 259). 

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The evening of March 18, Clapp called Whitted. Clapp told Whitted that Clapp had 

been fired and that she was scared for Whitted and wanted her to be prepared. (Tr. 580). 

On March 19, Whitted “was pulled into a meeting in the back office” with Fischer, 

Robinson, and Cliff Oedekoven (step-up utility lead), and told that Respondent was taking 

Whitted’s crew training position away, that they no longer had a working relationship, and that 

she was lying about the safety incentive game’s near-miss cards. (Tr. 580, 594). Whitted was 

in tears and told them that she was thankful that she still had her job because she was scared that 

she would lose it. (Tr. 580). 

III. Legal Analysis 

A. The Mine Act and its Legislative History 

Congress declared in Section 2(a) of the Federal Mine Safety and Health Act of 1977 that 

“the first priority and concern of all in the coal or other mining industry must be the health and 

safety of its most precious resource—the miner.” Accordingly, the Mine Act includes strong 

anti-retaliation provisions to encourage miners to become more involved in voicing concerns 

about mine safety. According to Congress, “if miners are to be encouraged to be active in 

matters of safety and health, they must be protected against any possible discrimination which 

they might suffer as a result of their participation.” S. Rep. No. 95-181 (1977). 

Section 105(c)(1) of the Mine Act is the source of these protections. Section 105(c)(1) 

provides as follows: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in any coal 

or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator’s agent, or the 

representative of the miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant for 

employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 or 

because such miner, representative of miners or applicant for 

employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about 

to testify in any such proceeding, or because of the exercise by 

such miner, representative of miners or applicant for employment 

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on behalf of himself or others of any statutory right afforded by
 

this Act.

 30 C.F.R. § 815(c)(1).
 

Thus, miners receive protection against various types of discrimination in Section 

105(c)(1) for engaging in the protected activity of voicing concerns about mine health and safety 

issues. In passing the Mine Health and Safety Act of 1977, Congress expanded protections for 

miners based on the belief that the miners’ willingness to assist in observing and reporting issues 

of mine safety to their supervisors was a vital component in the effort to improve mine health 

and safety standards overall. The legislative history shows Congress’s concern for encouraging 

miners to step forward and advocate for their safety, without fear of reprisal. In its attempt to 

achieve this goal, Congress enacted a provision that broadly interpreted the definition of 

protected activity. Specifically, “the Committee intends that the scope of the protected activities 

be broadly interpreted by the Secretary, and intends it to include not only the filing of complaints 

. . . but also the refusal to work in conditions which are believed to be unsafe or unhealthful” as 

well as “the refusal to work in conditions which are violative of the Act or any standard 

promulgated thereunder, or the participation by a miner or his representative in any 

administrative and judicial proceeding under the Act.”45 

Furthermore, the legislative history of the Mine Act indicates that Congress wanted to 

prohibit forms of discrimination that were not always the most obvious and to “protect miners 

against not only the common forms of discrimination, such as discharge, suspension, demotion, 

reduction in benefits, vacation, bonuses and rates of pay, or changes in pay and hours of work, 

but also against the more subtle forms of interference, such as promises of benefit or threats of 

reprisal.”46 These protections were designed to encourage miners to become actively involved in 

advocating for improved safety and health standards. 

B. Legal Principles 

A complainant alleging discrimination under section 105(c) of the Act, 30 U.S.C. § 

815(c), establishes a prima facie case of prohibited discrimination by presenting evidence 

sufficient to support a conclusion that 1) the individual engaged in protected activity, and 2) that 

the adverse action complained of was motivated in any part by that activity. See Driessen v. Nev. 

Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).47 In determining 

whether a mine operator’s adverse action was motivated by protected activity, the Commission 

45 S. Rep. No. 95-181 (1977). 

46 Id. 47 The Commission’s recent decision in Turner v. National Cement Co. discusses the 

level of proof necessary to support a miner’s prima facie discrimination claim. 33 FMSHRC 

1059, 1065-72 (May 2011). 

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has noted that a judge must bear in mind that “direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on behalf 

of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds 

sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). “Intent is subjective 

and in many cases the discrimination can be proven only by the use of circumstantial evidence.” 

3 FMSHRC at 2510 (citation omitted). In Chacon, the Commission listed some of the more 

common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; 

(2) hostility or animus towards the protected activity; (3) coincidence in time between the 

protected activity and the adverse action; and (4) disparate treatment of the complainant. 3 

FMSHRC at 2510-12. 

Once a prima facie case is established by a preponderance of the evidence, the operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no part motivated by protected activity. See Robinette, 3 FMSHRC at 818, 

n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend 

affirmatively by proving that it also was motivated by the miner’s unprotected activity and 

would have taken the adverse action for the unprotected activity alone. See id. at 817-18; 

Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 

639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

Apart from actual discharge or discipline, the Commission explained in Moses v. Whitley 

Development Corp., 4 FMSHRC 1475, 1479 (1982), that coercive interrogation and harassment 

over the exercise of protected rights is prohibited by § 105(c)(1) of the Mine Act. In fact, section 

105(c)(1) states that “no person shall discharge or in any manner discriminate against... or 

otherwise interfere with the exercise of the statutory right of any miner.” (italics added.) In 

Moses, the Commission was guided by the legislative history of the Mine Act, which referred to 

“the more subtle forms of interference, such as promises of benefit or threats of reprisal.” Moses, 

supra, at 1478, citing Legislative History at 624. The Commission observed that a “natural 

result” of such subtle forms of interference “may be to instill in the minds of employees fear of 

reprisal or discrimination.” Moses, supra, at 1478. As the D.C. Circuit observed in Phillips v. 

Interior Board of Mine Operators Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974), “safety costs 

money” and “miners who insist on health and safety rules being followed, even at the cost of 

slowing down production, are not likely to be popular with mine foreman or top management.” 

Moreover, in a number of cases, the Commission has looked for guidance to case law 

interpreting similar provisions of the NLRA, as well as Title VII and other employment statutes, 

to resolve questions concerning the proper construction of provisions of the Mine Act. See Swift 

v. Consolidation Coal Co., 16 FMSHRC 201, 206 (Feb. 1994) (standard for showing facial 

discrimination); Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990) (legality 

of operator's policy of paying employees who testify as witnesses on its behalf, but not paying 

employee for time spent testifying as another party's witness); Local Union 2274, UMWA v. 

Clinchfield Coal Co., 10 FMSHRC 1493, 1501 n.6, 1504-05 (Nov. 1988) (appropriate rate of 

interest on backpay awards), aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 

(D.C. Cir. 1990); Metric Constructors, Inc., 6 FMSHRC 226, 231-33 (Feb. 1984) (mitigation 

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defense to backpay award), aff'd, 766 F.2d 469 (11th Cir. 1985). In Delisio, the Commission 

noted that it “has recognized in several contexts that . . . cases decided under the NLRA -- upon 

which much of the Mine Act's anti-retaliation provisions are modeled -- provide guidance on 

resolution of discrimination issues under the Mine Act.” 12 FMSHRC at 2542-43 (citing Metric 

Constructors, 6 FMSHRC at 231). Applying a similar rationale below, I conclude that case law 

applying unlawful interference principles as evidence of animus under Section 8(a)(1) of the 

NLRA may be considered for guidance in interpreting comparable provisions of the Mine Act 

dealing with unlawful interference. 

B. The Secretary’s Prima Facie Case of Discrimination Against Clapp 

1. Protected Activity 

The record is replete with Clapp’s ongoing protected activity of making safety 

complaints to Cordero, including Robinson, Fischer, Vaccari, and the safety department, before 

Cordero terminated her employment on March 18, 2010. In November 2008, Clapp spoke with 

Robinson and Fischer about sending a pickup for the crew with insufficient seatbelts. (Tr. 623­

24, 1066). Clapp then spoke with Vacarri about the incident. (Tr. 1066). During Clapp’s 

explanation, Vaccari uncovered the seat belt violation. (Tr. 373-74, 1066). Vaccari told Fischer 

about the issue for follow up. (Tr. 1067). 

About early February 2009, Clapp complained to Robinson and Fischer about monitor 

screen placement impairing visibility in rubber tire dozers. (Tr. 125). In response to these 

concerns, Fischer retorted, “We’re not moving them screens. We are using them screens, get 

used to it.” (Tr. 124). On February 22, 2009, Clapp completed a pre-shift report for the 325 

rubber tire dozer and noted that the screen blocked her vision and she would have shut the 

machine down if she was the regular operator. (Tr. 127, G. Ex. 15, p. 1). Robinson told Clapp, 

“[R]espondent won’t be moving them screens.” (Tr. 127). 

On March 1, 2009, Clapp made similar impaired-visibility complaints on the pre-shift 

form for the 328 rubber tire dozer. (Tr. 128, G. Ex. 15, p. 2). On March 21, 2009, Clapp made 

similar impaired-visibility complaints on the pre-shift report for the 103 shovel (Tr. 134; G. Ex. 

16, p. 1), and asked Fischer and Robinson to have maintenance fix the problem. (Tr. 136, 138) 

Her complaint made its way to Colby’s desk. (Tr. 794). Clapp followed up on the issue a 

couple of months later and was told by Fischer and Robinson that they were not going to move 

the screen. (Tr. 138). 

About March or April 2009, Clapp complained to Fischer and Robinson in safety 

meetings, in private discussion, and by radio, about rubber tire dozers that had been parked and 

left unmanned behind her shovel while the RTD operator ran other equipment, such as the blade. 

(Tr. 97-99). Fischer and Robinson told her they did not care what her concerns were, that it was 

not unsafe to park the unmanned dozer behind the shovel. (Tr. 99). At the hearing, Clapp 

identified a litany of reasons why the practice was unsafe, including entrapment upon spoil 

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failure. (Tr. 100-01). I find that Clapp established the good faith and reasonableness of her 

subjective belief that a hazard existed. Cf., Robinette, 3 FMSHRC at 807-12; Secretary on 

behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993. Moreover, I find that Clapp’s 

perception of the hazards was objectively reasonable and not so groundless or irrational as to fail 

even a more stringent objective test. Cf. Asarco, Inc., 18 FMSHRC 317, 325 (Mar. 1996) (ALJ 

Manning). 

On July 13, 2009, Clapp moved the MMC screen that was blocking her vision in the 103 

shovel, but left the screen operational so that she could hear communications from dispatch. 

(Tr. 140-142, 794; G. Ex. 16, p. 2). According to Clapp’s credible testimony, when Fischer 

arrived, he immediately started yelling at her, noting that the screen was a $20,000 piece of 

equipment that could not be moved. When Fischer put the screen back in the window of the 

shovel, Clapp said, “I’m safer than you Gerald. I’m safer than you. I have got to have vision in 

my shovel. I need to see. I’m responsible down here for not injuring anybody. I have to have 

my vision.” (Tr. 145). Clapp credibly testified that Fischer became furious and yelled at her 

loudly, “You are not safer than me.” As Fischer adjusted the screen, he yelled, “It doesn’t bother 

me, it doesn’t bother me at all. It doesn’t bother anybody but you. Bend over and look under it.” 

(Tr. 146-47). I find that Clapp’s remarks were part of the res gestae of protected activity. 

During the subsequent back-door meeting in Fischer’s office, I find that Fischer 

interfered with Clapp’s statutory rights by telling her that could make her work in uncomfortable 

situations (such as placing her in a track dozer at the top of a highwall) even if she thought it was 

unsafe. (Tr. 149-50) The Commission has recognized that there are situations in which the 

response of a supervisor to a miner's protected complaint may constitute interference with the 

exercise of the miner's right to complain. See Moses v. Whitley Development Corporation, 4 

FMSHRC 1475, 1478-1479 (Aug. 1982), aff'd 770 F. 2d 168 (3rd Cir. 1981). The question of 

whether a management official's response constitutes interference proscribed by the Act must be 

determined by what is said and done and the totality of circumstances surrounding the words and 

actions. Secretary on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 

2005) (quoting Moses, at 1479, n.8). In essence, the test for unlawful interference is whether the 

employer engaged in conduct that has a reasonable tendency to interfere with the free exercise of 

employee rights under the Act. Cf. NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 

1966). Threats directed to a miner for exercising a protected safety-complaint right constitute 

discrimination and unlawful interference under § 105(c) of the Act. Secretary on behalf of 

Johnson v. Jim Walker Resources, 15 FMSHRC 2367, 2377 No. 1993) (Judge Fauver), citing 

Denu v. Amax Coal Company, 11 FMSHRC 317, 322 (1989), (Judge Melick); Moses v. Whitley 

Development Corp., 4 FMSHRC 1475, 1479 (1982); and Secretary on behalf of Carson v. Jim 

Walter Resources, Inc., 15 FMSHRC 1993, 1996-1997 (1993) (Judge Maurer). Although the 

Secretary did not plead Fischer’s remark as interference and a substantive complaint allegation, 

it is background evidence of animus. 

I find that Clapp also engaged in protected activity when she told Fischer that she will 

never do anything unsafe like that and that she would park the dozer and wait for Fischer to 

come get her. (Tr. 149). I find that Clapp engaged in further protected activity when she told 

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Fischer and Robinson that she needed vision for her safety and the safety of others on her coal 

run. 

Also during the summer of 2009, Miller heard Clapp call Robinson and Fischer over the 

radio and asked for a water truck because of dusty conditions in the pit. Miller credibly testified 

that Robinson then turned to Fischer and said, “I don’t care how many times she calls she is not 

getting a water truck.” (Tr. 521). I find that Robinson’s statement interfered with Clapp’s 

statutory right to request water and had a reasonable tendency to coerce Miller who overheard it. 

Cf. Simpson Electric Co., 250 NLRB 309 (1980). Robinson conveyed the message to Miller 

that it was futile for Clapp to request water because it would not be provided. Under all the 

circumstances, I conclude that Robinson’s statement would reasonably tend to interfere with a 

miner’s exercise of rights guaranteed by the Act. 

Clapp engaged in further protected activity throughout 2009, and more often in the winter 

months of late 2009 and early 2010, when she called Robinson and Fischer several times to 

request water because of dusty conditions in the pit, but her requests were ignored. (Tr. 108-09, 

116). Clapp also called Fischer and Robinson during this time frame on behalf of several truck 

drivers on her crew because their requests for water were also ignored and they, unlike Clapp, 

chose not to risk angering Fischer or Robinson by continuing to call for water. (Tr. 112-115). 

On two occasions during this time frame, Clapp called Fischer and Robinson to inform them that 

she was shutting down the run because neither she nor the truck drivers could see with the pit 

engulfed in dust. (Tr. 109-10). I have credited Clapp’s testimony that once she engaged in the 

work refusals and shut down the run, Fischer and Robinson immediately sent water. (Tr. 110). 

In January 2010, just two months before her discharge, Clapp engaged in protected 

activity when she told safety department head Andrews, that she was having problems when she 

asked for a water truck and needed his help. (Tr. 111). Clapp was then serviced by a water truck 

during day-shift rotation when the safety department was present, but continued to have 

problems on nights and weekends when no one from safety was on-site. (Tr. 111-12). 

Also in January 2010, Clapp spoke with safety representative McLaughlin and raised 

ongoing safety concerns about unmanned rubber tire dozers parked behind her shovel. (Tr. 103-

04). Clapp also informed McLaughlin that she thought the practice had become deliberate after 

she raised her safety concerns with Fischer and Robinson earlier in the year. According to 

Clapp, this allegation troubled McLaughlin, who asked for time to think about how to handle it. 

(Tr. 104). Thereafter, the rubber tire dozer was not parked unmanned behind Clapp’s shovel 

during day shifts when the safety department was present. But the practice continued on nights 

and weekends. (Tr. 104-105). 

In early March 2010, shortly before her discharge, Clapp repeatedly engaged in protected 

activity when she raised safety concerns about turning around and dumping overloaded coal 

trucks back at the coal face. For example, on the evening of March 2, when the governor was 

triggered in Young’s truck, Clapp called Robinson, who directed her to have the truck turned 

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around and dumped in the coal face. Clapp told Robinson that it was “stupid and unsafe” to do 

so, but she complied with his directive and had Young dump his truck back at the face. (Tr. 172, 

177; R. Ex. 18). Fischer admitted at the March 10, 2010 meeting that he condoned Clapp’s 

remarks on this occasion. (G. Ex. 17A, p. 48). Robinson’s own notes confirm Clapp’s 

protected activity on this occasion when she told Robinson that it was unsafe “dumping trucks at 

the face as they would have to turn the truck around in the traffic in the slot and back it under the 

shovel which she thought was dangerous.” (R. Ex. 18). 

At the end of the shift on March 2-3, 2010, Clapp engaged in further protected activity 

when she conveyed her safety concerns about the truck-dumping procedure to mine manager 

Vaccari in the hallway. (Tr. 181-82). Clapp told Vaccari that she thought it was unsafe to turn 

around and dump loaded coal trucks in the uneven pit. (Tr. 182-83, 1115). Clapp saw Robinson 

and then Fischer give her angry looks behind Vaccari’s back. (Tr. 185-86). Thereafter, Vaccari 

discussed ways to address Clapp’s concerns with Robinson and Fischer. (Tr. 1119). 

Clapp engaged in further protected activity when she called ROS Oistad on March 3 to 

express her concerns about the truck dumping procedure. Clapp told supervisor Oistad that she 

was afraid to turn around trucks and have them raise their beds and dump coal down in the 

congested coal slot, particularly in light of recent truck accidents that had occurred at the mine in 

late winter and early spring. Clapp told Oistad that she felt that Respondent was pushing the line 

on safety by taking risks that were unnecessary. (Tr. 189, 1023-24). Oistad conceded in his 

testimony that Clapp raised safety concerns regarding congestion in the slot (Tr. 1023-24), and 

told Fischer and Robinson that Clapp had called him to express her concerns about the truckdumping policy. (Tr. 773-74, 919-20). 

On March 9, Clapp engaged in protected activity when she told driver Clark over the 

line-of-sight channel, which Robinson and Fischer were monitoring, that Clark was going to 

have to dump her truck back at the face because nothing has changed, and Vaccari had not gotten 

back to her about her safety concerns. (Tr. 192-95). Clapp’s remarks provoked Fischer’s 

outburst that he did not care what Vaccari said, that this was Fischer’s policy, so turn that truck 

around and dump it. (Tr. 193). Clapp complied with Fischer’s decision to dump Clark’s truck. 

(Tr. 193). 

During the heated meeting on March 10, Clapp engaged in protected activity when she 

told Fischer, Robinson and Babcock that she had a right to call Oistad, Vaccari, and the safety 

department with her safety concerns about turning loaded coal trucks around and dumping “in 

the middle of the night in the dark down in black coal,” which she felt was stupid and very 

dangerous. (G. Ex. 17, G. Ex. 17A, pp. 3-6, 24-27, 29-40, 46-47). In fact, Robinson 

acknowledged at the meeting and at the hearing that Clapp “pulled a safety trump on me, said it 

was unsafe to dump them at the face on the radio.” (G. Ex. 17A, p. 53, p. 17; and Tr. 827-28) 

Robinson’s own notes state “. . . I then reminded her of last week when she had to dump 271 and 

she had argued with me over channel three and pulled a safety trump on me by saying over the 

radio that it was an unsafe practice. I then told her that since she disagreed with me, she had 

raised the issue with both Terry Oistad and Joe Vaccari . . . . ” (R.Ex. 18, lines 6-9). 

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Clapp engaged in further protected activity when she returned to the safety department 

after the meeting with Robinson, Fischer and Babcock on March 10 and was advised by 

Tompkins to talk to HR or Vaccari about her ongoing safety and communication conerns. (Tr. 

239-240). Clapp engaged in further protected activity when she called Vaccari on March 11, 

told him that she had been up all night because of serious concerns about issues at the mine, and 

arranged a meeting with him to discuss her concerns. (Tr. 244, 1090). Since Babcock briefed 

Vaccari on March 10 about what occurred during that day’s meeting with Clapp (Tr. 1087), I 

infer that Vaccari knew that Clapp wanted to reiterate her previously expressed safety and 

communication concerns about Fischer’s truck-dumping policy. 

Finally, Clapp engaged in protected activity when she and Whitted met with Vaccari on 

March 12 about the issues raised with safety representative Tompkins, including the fact that 

they were tired of being “dragged” into the back room and tired of being unable to talk about 

safety. (Tr. 250). Clapp’s testimony and Vaccari’s notes confirm that Clapp homed in on her 

prior protected activity by reiterating her safety concerns about turning around loaded coal trucks 

in the slot and dumping them at the face and questioning why Respondent was engaged in such a 

procedure. (Tr. 254, R. Ex. 20). Clapp told Vaccari that Robinson and Fischer were angry with 

her for expressing her safety concerns to Vaccari and Oistad after Robinson had told the crew 

that if they had a problem with the truck-dumping procedure take it to Colin Marshall. (Tr. 254, 

256). Clapp and Whitted also discussed the safety incentive game and the fact that Robinson and 

Fischer discouraged and intimidated employees in back-room meetings from raising safety 

concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s notes described the March 10 meeting with 

Clapp as an “Intimidation Mtg” in which an “extremely angry” Fischer allegedly told Clapp 

“you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1). 

On this record, there can be no doubt that Clapp engaged in ongoing, extensive, protected 

activity for herself and on behalf of other miners when she made repeated safety complaints to 

Cordero management and the safety department. 

B. Adverse Action 

Vaccari, Clemetson, Colby, Babcock, Fischer and Robinson met on March 17 and 

decided to recommend Clapp’s termination for alleged insubordination. (Tr. 679, 785, 959, 

1050-51, 1105-06, 1137-38). Vaccari told the group about Clapp’s [and Whitted’s] complaints. 

(Tr. 959, 966, 1101-02, 1105-06). It is undisputed that on March 18, 2010, Cordero terminated 

Clapp’s employment at the Cordero mine. 

 When Clapp arrived at the corporate office on March 18, Clemetson escorted her to the 

meeting room where Colby and Fischer were present, handed her a termination letter (R. Ex. 1) 

signed by Colby, and told her she was terminated. (Tr. 258) Clearly, Cordero took adverse 

action against Clapp by discharging her after 28 years of service. 

C. Motivation 

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In Chacon, as recently reaffirmed in Turner, the Commission reiterated the wellestablished principle that “[d]irect evidence of motivation is rarely encountered; more typically, 

the only available evidence is indirect.” Turner, 33 FMSHRC, slip op. at 9, citing Chacon, 3 

FMSHRC at 2510. Consideration of indirect evidence involves the drawing of reasonable 

inferences from the facts of record, and circumstantial evidence and reasonable inferences drawn 

from it may be used to sustain a prima facie case. Turner, 33 FMSHRC, slip op. at 9, citing 

Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982), citing Chacon, 3 FMSHRC at 

2510-12. 

The record contains ample reliable evidence to support a conclusion that Cordero’s 

termination of Clapp was motivated by her protected activity. In reaching this conclusion, I rely 

primarily on the following indicia of Cordero’s discriminatory intent: (1) Cordero’s knowledge 

of Clapp’s protected activity; (2) the animus demonstrated by Cordero, and particularly her 

immediate supervisor Fischer, towards Clapp’s protected activity; (3) the very close proximity in 

time between Clapp’s most recent protected activity involving safety complaints related to the 

truck-dumping policy and Cordero’s adverse action; (4) and disparate treatment of Clapp. 

1. Knowledge 

The Commission has held that an “operator’s knowledge of the miner’s protected activity 

is probably the single most important aspect of a circumstantial case,” and that “knowledge . . . 

can be proved by circumstantial evidence and reasonable inferences.” Chacon, 3 FMSHRC at 

2510. Here, however, I need not resort to any circumstantial evidence or inferences to find that 

Cordero knew of Clapp’s protected activity. As outlined above, Cordero supervisors, managers, 

and/or HR personnel involved in the termination decision had direct knowledge of Clapp’s 

ongoing protected activity, and most particularly, her safety complaints about Fischer’s truckdumping policy on March 2, 3, 9, 10, and 12. In addition, when Vaccari, Clemetson, Colby, 

Babcock, Fischer and Robinson met on March 17 and each decided to recommend Clapp’s 

termination for insubordination (Tr. 679, 785, 959, 1050-51, 1105-06, 1137-38), Vaccari told the 

group about Clapp’s and Whitted’s March 11 complaints (Tr. 959, 966, 1101-02, 1105-06), 

which included Clapp’s reiteration of her March 3, 9, and 10 safety concerns about turning 

around and dumping loaded coal trucks back at the face, the fact that miners on the D crew were 

afraid to raise safety issues with Robinson and Fischer, and the fact that Fischer was angry with 

Clapp for discussing her safety concerns with Vaccari and Oistad. (Tr. 254-56, 577-79). 

2. Animus 

Animus is but one of several indicia of discriminatory intent. Turner, 33 FMSHRC, slip 

op. at 12, n. 9. I find ample, reliable evidence of strong and continuing animus that Cordero 

management, and particularly Fischer, exhibited towards Clapp’s protected activity. In fact, the 

record contains overwhelming evidence that Clapp repeatedly raised safety concerns to Fischer 

and Robinson, and then to mine manager Vaccari and the safety department, based on the nonresponsiveness of her immediate supervisors, and that Fischer demonstrated extreme and 

ongoing hostility toward Clapp’s protected activity, especially the fact that Clapp went to 

Vaccari with her safety concerns. 

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Back in November 2008, Clapp spoke with Vaccari about the fact that Robinson and 

Fischer sent a pickup for the crew with insufficient seatbelts. (Tr. 623-24, 1066). Vaccari asked 

Fisher to follow up on the issue. (Tr. 1067) Later that day, Halverson overheard Fischer discuss 

his follow-up after leaving Vaccari’s office: “That bitch, we’ll show her who’s boss. How dare 

her go over our heads. I can’t believe she did this and said anything to Joe.” (Tr. 612; cf. 625). 

I have drawn the inference that Fischer’s animus was directed at Clapp, who brought the issue to 

Vaccari’s attention. Thereafter, Fischer issued Clapp a last and final warning for failing to wear 

a seat belt (R. Ex. 4), but Clapp was the first miner to whom the automatic last and final policy 

was applied, there was no written documentation confirming the policy, it apparently was not 

enforced by Fischer against miner Lang, and Clapp’s warning followed closely on the heels of 

Fischer’s animus toward Clapp for bringing the issue to Vaccari’s attention, after Robinson and 

Fischer could not resolve Clapp’s concerns. 

In February and March 2009, Clapp and two other miners raised safety concerns 

concerning impaired visibility regarding the placement of large monitor screens in RTDs. (Tr. 

116-25, 134-38, G. Ex. 15-16). Fischer and Robinson responded they were not going to move 

the screens so “get used to it.” (Tr. 124, 127, 132). About March or April 2009, Clapp 

complained to Fischer and Robinson in safety meetings, in private discussion, and by radio, 

about rubber tire dozers that had been parked and left unmanned behind her shovel while the 

RTD operator ran other equipment, such as the blade. (Tr. 97-99). Fischer and Robinson told 

her they did not care what her concerns were, that it was not unsafe to park the unmanned dozer 

behind the shovel. (Tr. 99). 

On July 13, 2009, after Clapp moved the MMC screen that was blocking her vision in the 

103 shovel, Fischer yelled at her that the screen was a $20,000 piece of equipment that could not 

be moved. When Fischer put the screen back in the window of the shovel, Clapp said, “I’m safer 

than you Gerald. I’m safer than you. I have got to have vision in my shovel. I need to see. I’m 

responsible down here for not injuring anybody. I have to have my vision.” (Tr. 145). Fischer 

became furious and yelled, “You are not safer than me . . . . It doesn’t bother me, it doesn’t 

bother me at all. It doesn’t bother anybody but you. Bend over and look under it.” (Tr. 146-47). 

I have found that Clapp’s remarks were part of the res gestae of protected activity. 

During the subsequent closed-door meeting in Fischer’s office, Fischer interfered with 

Clapp’s statutory rights by telling her that could make her work in uncomfortable situations 

(such as placing her in a track dozer at the top of a highwall) even if she thought it was unsafe. 

(Tr. 149-50). I have found that Fischer’s statement was a threat directed at Clapp for exercising 

her protected safety-complaint rights. See Secretary on behalf of Johnson v. Jim Walker 

Resources, 15 FMSHRC 2367, 2377 No. 1993) (Judge Fauver), citing Denu v. Amax Coal 

Company, 11 FMSHRC 317, 322 (1989), (Judge Melick); Moses v. Whitley Development Corp., 

4 FMSHRC 1475, 1479 (1982); and Secretary on behalf of Carson v. Jim Walter Resources, 

Inc., 15 FMSHRC 1993, 1996-1997 (1993) (Judge Maurer). I have further found that such 

interference under § 105(c) of the Act may be used as background evidence of animus, since not 

pled as a substantive complaint allegation. Similarly, during the same meeting, I have found that 

Robinson interfered with Clapp’s right to make safety complaints to Vaccari by telling her that 

she made them look stupid because she goes behind their back and always uses the “safety 

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trump” to get her way. (Tr. 149). Under Moses, supra, such a statement has a reasonable 

tendency to interfere with Clapp’s right to go to mine manager Vaccari with her safety complaint 

and to raise safety complaints that she believes in good faith are warranted. Thus, I consider 

Robinson’s remark as further background evidence of animus. 

Further evidence of animus occurred in the summer of 2009, when Miller heard Clapp 

call Robinson and Fischer for water because of dusty conditions in the pit, while Miller sat in 

their lead pickup. Miller heard Robinson tell Fischer, “I don’t care how many times she calls she 

is not getting a water truck.” (Tr. 520-21). The record further reflects that throughout 2009, and 

more often in the winter months of late 2009 and early 2010, Fischer and Robinson repeatedly 

ignored Clapp’s requests for water to control dusty conditions in the pit, forcing Clapp to shut 

down the coal run on two occasions. Other employees would go to Clapp with their concerns 

because they were afraid to call Fischer and Robinson for water. (Tr. 107-115) Once Clapp 

engaged in the work refusals and shut down the run, Fischer and Robinson immediately sent 

water. (Tr. 110). 

A further inference of animus is drawn from events in January 2010, when Robinson and 

Fischer continued to dismiss Clapp’s ongoing safety concerns about unmanned rubber tire dozers 

parked behind her shovel. After Clapp spoke with safety representative McLaughlin and told 

him that she thought the practice had become deliberate because Clapp had raised her safety 

concerns with Fischer and Robinson earlier in the year, the rubber tire dozer was not parked 

unmanned behind Clapp’s shovel during day shifts when the safety department was present, but 

the practice continued on nights and weekends. (Tr. 104-105). Similarly, in January 2010, 

Clapp also spoke with safety manager Andrews about problems she was having getting water 

and asked for his assistance. Thereafter, Clapp received water on day shifts when the safety 

department was present, but had difficulty on nights and weekends when safety was not on site. 

(Tr. 111-12). 

Further evidence of ongoing animus toward Clapp’s protected activity may be gleaned 

from the events in early and mid March 2010, shortly before Clapp’s March 18 discharge. As 

explained above, Clapp repeatedly raised safety concerns about turning around and dumping 

overloaded coal trucks back at the face. When the policy was first announced during the preshift meeting the evening of March, Robinson pre-empted Clapp’s unarticulated concerns by 

stating, “If you have a problem with it, take it to [CEO] Colin Marshall.” (Tr. 160, 561-62, 564, 

757, G. Ex. 17 and 17A p. 2-3). At the end of the next shift, after Clapp complied with 

Robinson’s directive to dump Young’s truck back at the face and Clapp told Robinson that it was 

stupid and unsafe to turn loaded coal trucks around in the slot and dangerous to dump them back 

under the shovel (Tr. 172, 177; R. Ex. 18), Clapp told Vaccari that it was unsafe to turn around 

and dump loaded coal trucks in the uneven pit. (Tr. 182-83, 1115) Robinson and Fischer gave 

Clapp angry looks behind Vaccari’s back. (Tr. 185-86). Thereafter, after Clapp also told 

supervisor Oistad that it was unsafe to turn around trucks and dump coal down in the congested 

slot, particularly in light of recent truck accidents (Tr. 189, 1023-24), and after Clapp told Clark 

over the line-of-site channel radio on March 9 that Clark was going to have to dump her truck 

back at the face because Vaccari had not gotten back to her about her safety concerns (Tr. 192­

95), Fischer began screaming at Clapp over the radio that he did not care what Vaccari said 

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because it was his policy. (Tr. 193; cf. G. Ex. 17 and 17A, pp. 51). Fischer acknowledged that 

Clapp’s remarks really angered him. “So that really chapped me. I don’t know what Joe will 

come up with. I don’t know what his policy is.” (G. Ex. 17, G. Ex. 17A, pp. 51) As Fischer put 

it, “that was the straw that broke the camel’s back,” because it was Fischer’s decision, not 

Vacarri’s policy. (Id.). 

Shortly thereafter, at the end of the shift on March 10, Fischer and Robinson summoned 

Clapp into another lengthy, closed-door meeting in Fischer’s office. Fischer told Clapp that he 

was angry that she had challenged the truck-dumping policy by throwing a fit over the radio and 

by undermining them through discussion of the issue with Vaccari and Oistad, activities that I 

have found protected. (Tr. 198, G. Ex. 17, G. Ex. 17A, pp. 2-10). Clapp tried to explain to 

Fischer the need to communicate her safety concerns to someone who would listen and not get 

so “pissed off” as to scream at her and threaten to make her work uncomfortable as Fischer did 

back on July 13, 2009. Fischer again told Clapp that he was not afraid to put her in an 

uncomfortable position. He further stated that she was not getting on board, that she “throws a 

lot of bullshit around,” that “sometimes what comes out of your mouth is yuck,” that he did not 

give a shit if Clapp had 28 years because Fischer valued safety also (G. Ex. 17A, pp. 11-15), and 

that Fischer did not give a shit what other crews were doing. (Id. at 250). 

When HR representative Babcock eventually joined the meeting despite Clapp’s requests 

for Vaccari (Tr. 775, 819; G. Ex. 17A, pp. 28 and 35), Clapp explained to Babcock that 

Robinson and Fischer were mad at her for communicating her safety concerns to Vaccari. (G. 

Ex. 17A, pp. 36-38). Babcock told her, “Well in this case the way the policy is set .... then you 

go with what the policy is .... If you are told that you need to turn a truck around, that it’s 

overweight, then you do just that. And if the question is out there and it’s being looked at, you 

just trust that the powers that be are looking at it. But until you get word of, you know, you 

don’t have to do this anymore, continue with the policy as is.” (Id. at 39). Babcock further told 

Clapp that she should not broadcast her concerns to her supervisors over the radio as it could be 

viewed as questioning authority. (Id. at 40-42). 

Cordero management expressed further animus toward Clapp’s protected activity when 

Fischer explained to Babcock that he was bothered by the fact that Clapp gave Robinson “a lot 

of feedback and flack on the radio,” and really got his “dander up” when she asked Oistad what 

his crew was doing, and told Vaccari that she had to light load the trucks. (Id. at 46-49). Fischer 

further explained that “the straw that broke the camel’s back” was the incident of March 9 when 

Clapp told Clark that Vaccari had not gotten back to her about the truck dumping policy. (Id. at 

50-51). Robinson agreed with Fischer that as of March 9, Clapp still did not agree with the truck 

dumping policy and was intent on going to Vaccari, and that back on March 2, she “pulled a 

safety trump on me” by saying it was unsafe to dump at the face over the radio. (Id. at 52-53). 

When Clapp insisted to Fischer that she could talk to anybody she wanted concerning her safety 

concerns (Id. at 57), Fischer opined that Clapp had not learned a single thing during the meeting 

(Id. at 59), and Babcock admonished Clapp that questioning the policy over the radio and going 

outside the crew with her concerns was improper and undermined her supervisors’ authority, 

which he expected her to follow. (Id. at 60-61). When Clapp indicated that she was 

communicating her safety concerns and not undermining authority, and that Cordero focused on 

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her for communicating her concerns when other crews were driving down the road and dumping 

at the hopper (Id. at 62-63), Babcock told Clapp that she needed to go through Robinson and 

Fischer with her safety concerns and they were sending her home with pay so she could come 

back the next day ready to go and finish up the conversation. (Id. at 67-68). 

In these circumstances, Fischer, Robinson and even Babcock to a lesser extent were 

hostile to Clapp’s protected activities and I find that Clapp worked in an environment in which 

her immediate supervisors were pervasively hostile to her safety complaints. Since Babcock 

briefed Vaccari on March 10 about what occurred during the March 10 meeting with Clapp (Tr. 

1087), I have inferred that Vaccari knew that Clapp wanted to reiterate her previously expressed 

safety and communication concerns about Fischer’s truck dumping policy when Clapp called 

Vaccari on March 11 to arrange a meeting with him on March 12, 2010. Moreover, Vaccari’s 

notes of the March 12 meeting with Clapp (and Whitted) describe the March 10 meeting with 

Clapp as an “intimidation meeting in which an “extremely angry” Fischer allegedly told Clapp 

“you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1). 

As noted, Vaccari told Fischer and the rest of the management team about Clapp’s [and 

Whitted’s] complaints during the March 17 meeting to decide Clapp’s fate. (Tr. 959, 966, 1101­

02, 1105-06). 

Based on the totality of record evidence, I find that Cordero’s ultimate decision to 

terminate Clapp was based, in part, on Fischer’s, Robinson’s and Babcock’s recommendations 

and hostility toward Clapp’s ongoing protected activity, including that fact that even after the 

March 10 meeting, Clapp decided to again raise her safety concerns with Vaccari on March 12. 

Accordingly, I conclude that the ultimate decision to terminate Clapp was tainted by retaliatory 

animus for protected activity. 

3. Temporal Proximity 

As outlined above, Clapp’s most recent protected activity concerning her safety 

complaints over the truck-dumping policy occurred on March 2, 3, 9, 10, and 12. Cordero 

terminated Clapp’s employment during her week off on March 18. (Tr. 258; R. Ex. 1). Clearly, 

there is a significant coincidence in time between Clapp’s most recent protected activity, 

specifically her March complaints about the truck-dumping policy to Robinson, Fischer, 

Babcock, Oistad, Vaccari and the safety department, and the adverse action that Cordero 

executed by discharging her on March 18, before she returned to work on her next scheduled 

shift. See Sec’y of Labor on behalf of Williamson v. CAM Mining LLC, 31 FMSHRC 1085, 1090 

(Oct. 2009) (finding “proximity in time” where the time between the protected activity and 

adverse action was three weeks); cf., Sec’y of Labor on behalf of Hyles v. All American Asphalt, 

21 FMSHRC 34, 37-38, 43-44 (Jan. 1999) (finding temporal proximity despite 16-month gap 

between protected activity and adverse action). The fact that Cordero’s adverse action against 

Clapp so closely followed her most recent protected activity is itself evidence of an illicit motive. 

See, e.g., Turner, 33 FMSHRC, slip op. at 13, citing, Donovan v. Stafford Constr. Co., 732 F.2d 

954, 960 (D.C. Cir. 1984) (two weeks between alleged protected activity and miner’s discharge 

is “itself evidence of illicit motive”). 

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4. Disparate Treatment 

Although the evidence of disparate treatment is somewhat equivocal given Clapp’s 

disciplinary history, as set forth in section II, B, 4, B, supra, I have found sufficient probative 

evidence to warrant the inference that Clapp was disciplined more harshly prior to her discharge 

than Christiansen and Eisenhauer because of Clapp’s ongoing safety complaints. Furthermore, 

with regard to Cordero’s affirmative defense that it would have disciplined Clapp for her alleged 

insubordination alone, I note that Eisenhauer told Robinson not to tell him what to do prior to 

damaging the dozer on June 13, 2009, and Eisenhuaer was not written up for insubordination. 

Finally, the evidence indicates, as Clapp explained to management during the heated March 10 

meeting, that Fischer and Cordero were focused on Clapp in enforcing the truck-dumping policy. 

(see G. Ex. 17A, p. 62). I have found that D-crew driver Artz confirmed that he had taken an 

overloaded haul truck to the hopper, that management was aware of it through the MMC system, 

and that Cordero did not discipline Artz for his actual refusal to follow instructions. (Tr. 422­

23). Similarly, Whitted credibly testified that Robinson was aware that Young took an 

overloaded truck to the hopper and Respondent introduced no evidence that Young received any 

discipline for the failure to follow Robinson’s instructions to dump back at the face. (Tr. 581­

83). Moreover, Oistad’s crew sent overloaded trucks to the hopper when conditions in the pit 

were not favorable for dumping. (Tr. 190). 

D. Prima Facie Case 

In light of my findings above that Clapp engaged in protected activity, that Cordero terminated 

her, and that her discharge was motivated by her protected activities, I conclude that the 

Secretary established a strong prima facie case of unlawful discrimination under the Mine Act. 

Accordingly, I reaffirm my denial of Cordero’s motion to dismiss made at the end of the 

Secretary’s case. (Tr. 628). 

E. Cordero’s Affirmative Defense 

An operator may rebut a prima facie case of prohibited discrimination by showing either that no 

protected activity occurred, or that the adverse action was in no part motivated by protected activity. 

See Robinette, 3 FMSHRC at 818, n.20. Given my findings above, Cordero has failed to rebut the prima 

facie case. 

Although Cordero cannot rebut the Secretary’s prima facie case, it may nevertheless defend 

affirmatively by proving that it also was motivated by Clapp’s unprotected activity and that it would 

have taken the adverse action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC 

at 2799-800; see also Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) 

(applying Pasula-Robinette test); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically 

approving the Commission’s Pasula-Robinette test). 

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The Commission has explained that a defense should not be examined superficially or approved 

automatically once proffered. Turner, 33 FMSHRC, slip op. at 15, citing Haro v. Magma Copper Co., 4 

FMSHRC 1935, 1938 (Nov. 1982). Rather, in reviewing an affirmative defense, judges must determine 

whether it is credible and, if so, whether it would have motivated the particular operator, as claimed. Id., 

citing Bradley, 4 FMSHRC at 993. Pretext may be found where the asserted justification is weak, 

implausible, or out of line with the operator’s normal business practices such that it was seized upon to 

cloak discriminatory motive. Chacon, 3 FMSHRC at 2516; see also Turner, 33 FMSHRC, slip op. at 

15, citing Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 

1990) (citing Haro, 4 FMSHRC at 1937-38). 

In Turner, the Commission analyzed the issue of pretext in the context of other federal discrimination 

statutes, and concluded that a complainant may establish that an operator’s explanation is not credible 

by demonstrating either: (1) that the proffered reason has no basis in fact; (2) that the proffered reason 

actually did not motivate the adverse action; or (3) that the proffered reason was insufficient to motivate 

the adverse action. Turner, 33 FMSHRC, slip op. at 15, citing Madden v. Chattanooga City Wide 

Service Dep’t., 549 F.3d 666, 675 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock Chemicals Co., 

29 F.3d 1078, 1084 (6th Cir. 1994)), overruled on other grounds, Geiger v. Tower Automotive, 579 F.3d 

614 (6th Cir. 2009) (emphasis in original)); McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th 

Cir. 1993). The first type of showing consists of evidence that the proffered basis for the complainant’s 

discharge never happened, i.e., that it was factually false or did not exist. Turner, 33 FMSHRC, slip op. 

at 15, citing Manzer, 29 F.3d at 1084. The third type of showing generally consists of evidence that 

other miners were not fired even though they engaged in substantially similar conduct that allegedly 

motivated the discharge of complainant. Both types of rebuttal are direct attacks on the credibility of 

the operator’s proffered motivation for firing the miner. Turner, 33 FMSHRC, slip op. at 15. By 

contrast, under the second type of showing, the complainant admits the factual basis underlying the 

employer’s proffered explanation and further admits that such conduct could motivate the adverse action 

(dismissal). The complainant, however, attacks the credibility of the proffered explanation indirectly, 

by showing circumstances which tend to prove that an illegal motivation was more likely than that 

offered by the operator. Put differently, the complainant argues that the sheer weight of the 

circumstantial evidence of discrimination makes it “more likely than not” that the operator’s explanation 

is a pretext. Id. 

Applying these principles, I find that Cordero failed to demonstrate that Clapp actually was 

insubordinate. In addition, even assuming arguendo that Clapp was insubordinate, I further find that 

Cordero failed to demonstrate that Clapp would have been fired for insubordination regardless of her 

protected activity. 

Cordero’s primary defense is that Clapp was fired due to her insubordination for failing to report for a 

scheduled meeting on March 11, 2010.48 I have found that no specific meeting was set for March 11, 

48 The Secretary argues on brief at 19 that management “did not set a time, location, topic or participants 

for any additional meeting.” Respondent argues on brief that “Clapp was specifically instructed to come 

back in the morning at her regular shift starting time of 7:00 a.m. and the meeting would be concluded” 

and that what had started out as a meeting to clear the air and work as a team, had morphed into an 

(continued...) 

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2010 at the end of the long, emotional meeting on March 10, just a continuation of the discussion when
 

Clapp reported for work. Babcock’s statement at the end of the March 10 meeting was ambiguous. He
 

told Clapp, “You can take the day. Think about it, and then come in tomorrow ready to go. We’ll finish
 

up the conversation tomorrow, and then, you know, and go from there. (G. Ex. 17A, p. 67-68). In fact,
 

Babcock conceded that he did not set a specific meeting place, time or agenda, nor specify who would
 

attend. Rather, he just told Clapp to report for work at the normal time. (Tr. 1054). 

More importantly, I have credited Clapp’s testimony that she had Fischer and Vaccari’s permission to
 

take a floater. Thus, when Clapp initially told Fischer she was taking a floater, Fischer told her, “you
 

can’t we got meetings.” Clapp said, “Gerald, I did not know that, I am taking a floater.” Fischer said,
 

“Okay, fine,” and hung up. (Tr. 247). In addition, Vaccari’s notes from his March 12 meeting with
 

Clapp and Whitted confirm that Clapp told Vaccari that Fischer did not say that Clapp could not take a
 

floater on March 11, rather Fischer said “OK, goodbye.” (Tr. 1096; R. Ex. 20). 

Furthermore, I have found that Clapp already had obtained Vaccari’s tacit approval earlier that morning
 

to take a floater given her emotional state after the March 10 meeting and the fact that she was up all
 

night and could not sleep. Thus, when Clapp called Vaccari at 5 a.m. on March 11 to schedule a
 

meeting for the next day, Clapp told Vaccari that she had been up all night and that she needed to take a
 

floater. Vaccari told Clapp that he understood. (Tr. 244, 1090-91, 1116-17, 1120-21). After Clapp
 

subsequently spoke with Fischer that day, Vaccari informed Fischer that Clapp had called Vaccari
 

earlier in the day to schedule an appointment and said she needed a floater, and that Vaccari understood. 

(Tr. 1091-92). 

Based on the totality of record evidence evincing Fisher’s animus toward Clapp’s protected contact with
 

Vaccari about her safety concerns, I infer that Fischer was upset when he learned that Clapp had again
 

contacted Vaccari after her March 10 protected activity, had requested a floater, and had scheduled a
 

meeting with Vaccari for March 12. I have found that Fischer then enlisted the aid of HR Director
 

Clemetson in an effort to seize upon Clapp’s failure to report as a pretext for insubordination. 

According to Fischer, when HR Director Clemetson arrived at the mine that morning, Fischer told her
 

that “we had a meeting set up that morning for 7:00 and that Cindy called in and told me she was taking
 

the day off.” (Tr. 951). According to Clemetson’s version, however, Fischer told her “that Cindy had
 

not shown up for a meeting that they had scheduled that morning, that she had called in and asked for a
 

floater, and he told her that she needed to come out to her meeting. And she told him no, and he let her
 

know that HR would call her.” (Tr. 1135). As noted, I have credited Clapp’s testimony, that Fischer
 

ended the conversation by saying “Okay, fine,” and that Clapp already had obtained Vaccari’s tacit
 

approval to take a floater. 

Clemetson called Clapp in Babcock’s presence and left a message directing Clapp to report to the mine
 

site by 9 a.m. for the meeting. (Tr. 1047, 1136, 1143). It is undisputed that Clemetson never spoke to
 

Clapp on March 11. In addition, I have credited Clapp’s testimony that she never received the message. 

(...continued)
 

employee disciplinary matter. (R. Br. at 13-140). 

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(Tr. 247-48, 251). Further, I am persuaded by the Secretary’s argument on brief that given Clapp’s 

virtually unblemished absence and attendance record over 28 years, she was not the type of miner who 

would deliberately ignore or fail to show up for a scheduled meeting, particularly on two last and final 

disciplinary warnings. (Sec. Br. at 37). Moreover, the two-hour time frame that Clemetson gave this 

long-tenured miner to report appears unreasonably short, and unlike the call that Clemetson placed to 

Clapp’s home on March 18 to summon Clapp to the eventual discharge meeting, there is no evidence 

that Clemenson asked Clapp to confirm receipt of the message that she left on March 11.49 In these 

circumstances, I agree with the Secretary’s further argument that if it was so critical to meet with Clapp 

on March 11, Cordero could have called her later in the day to determine whether she received 

Clemetson’s message. (Sec’y Br. at 37-38). There is no evidence that Cordero did so. 

Rather, on the afternoon of March 11, 2010, Vaccari, Clemetson, Babcock, Colby, Fischer and Robinson 

met to discuss Clapp. Vaccari told the group about Clapp’s call to Vaccari earlier that morning about 

taking a floater and that Vaccari had scheduled a meeting with Clapp the next day, Friday, March 12. 

Tr. 1047-48, 1137. Vaccari decided that no disciplinary decision would be made on March 11 because 

Vaccari wanted to meet with Clapp on Friday, March 12. (Tr. 963, 1048, 1137). 

On March 12, when Clapp and Whitted met with Vaccari, Clapp homed in on her safety concerns about 

turning around loaded coal trucks in the slot and dumping them at the face (Tr. 254, R. Ex. 20). She 

further told Vaccari that Robinson and Fischer were angry with her for expressing her safety concerns to 

Vaccari and Oistad after Robinson had told the crew that if they had a problem with the truck dumping 

procedure, take it to Colin Marshall. (Tr. 254, 256). Clapp and Whitted discussed the safety incentive 

game and the fact that Robinson and Fischer discouraged and intimidated employees in back-room 

meetings from raising safety concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s notes described the 

March 10 meeting with Clapp as an intimidation meeting in which an “extremely angry” Fischer 

allegedly told Clapp “you make me sick always talking safety” and using “safety to get her way.” (R. 

Ex. 20, p. 1). 

49 I note that Clemenson did not testify that she asked Clapp to confirm receipt of the message 

that she left on March 11, 2010, which requested that Clapp report to the mine site for a March 

11 meeting. (Tr. 1143). As noted, Clemetson admitted that she had heard that Clapp never 

received her message to report to a meeting on March 11. On questioning from the undersigned, 

Clemetson could not recall when or from whom she heard this. (Tr. 1144-45). On further 

questioning from the undersigned as to whether she heard this before Respondent made the 

discharge decision on March 17, 2010 Clemetson could not recall the date. I find, however, that 

Clemetson obviously knew that Clapp had not received the message before she called Clapp to 

schedule the discharge meeting on March 18 because Clemetson’s March 18 request to have 

Clapp confirm receipt of the call was based on the fact that she had knowledge that Clapp 

claimed she had not received Clemetson’s March 11 call. Based on demeanor and evasiveness 

in response to my questioning, I infer that Clemetson’s inability to recall was not forthcoming 

and based on the realization that Clapp’s discharge for insubordination may become weaker if 

Clemetson knew that Clapp did not receive her March 11 message, but went ahead and 

discharged her anyway on March 18, 2010. 

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 I find that Clapp’s March 12 protected safety complaints to Vaccari, which enlisted the aid of another 

co-worker, was the straw that broke the camel’s back, and motivated the Respondent to discharge Clapp. 

The fact that Cordero retaliated against Whitted on March 19 by taking her crew training position away 

and by telling her that she no longer had a working relationship with Fischer and Robinson, strengthens 

my ultimate finding of Cordero’s unlawful motivation toward this protected activity. (Tr. 580, 594). 

In addition, I have found that Clemetson knew that Clapp was claiming that she had never received 

Clemetson’s March 11 message, and nevertheless went ahead and discharged her anyway on March 18, 

2010, without any additional investigation. 

Finally, Cordero’s managers failed to present a consistent and convincing rationale for their 

recommendations that Clapp was insubordinate. Robinson, Fischer and Colby recommended 

termination for insubordination because Clapp purportedly refused to come to work for the meeting on 

March 11. (Tr. 709, 728, 788, 967). In fact, Colby, who signed the discharge letter ( R. Ex. 1), limited 

the discharge to this justification. (Tr. 724-25). Babcock, by contrast, recommended termination for 

insubordination because Clapp attempted to send trucks to the hopper, challenged Robinson over the 

radio regarding the truck dumping procedure, went to another supervisor with her concerns, allegedly 

failed to acknowledge that Robinson and Fischer were her supervisors during the March 10 meeting, and 

allegedly failed to post for the March 11 meeting that Babcock purportedly had scheduled. (Tr. 1051). 

Clemetson supported the recommendation for termination because Clapp allegedly disregarded the 

instructions of her supervisor to dump overloaded coal trucks back at the face and allegedly continued to 

show disrespect for the instructions of her supervisors by failing to show up for the March 11 meeting. 

(Tr. 1139-40). Vaccari agreed with his leadership team because Clapp allegedly refused to listen to her 

supervisor and failed to show up for the March 11 meeting. (Tr. 1106-07). 

It is well established that where an employer provides an inconsistent or shifting rationale for its actions, 

a reasonable inference can be drawn that the reason proffered is a pretext designed to mask an unlawful 

motive. See e.g., GATX Logistics, Inc., 323 NLRB 328, 335 (1977). Cordero’s purported reasons for 

the alleged insubordination were either factually false, or not in fact relied upon, because the 

circumstantial evidence of discrimination makes it more likely than not that Cordero’s insubordination 

defense is pretext. Id. See, e.g., Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); accord: Shattuck 

Denn Mining Corp., v. NLRB, 362 F.2d 466 (9th Cir. 1966). As explained above, Clapp did not refuse 

to attend a scheduled meeting on March 11. Nor did Clapp send trucks to the hopper that were 

overloaded or disregard the instructions of her supervisor to dump overloaded coal trucks back at the 

face. Clapp challenged the directives as unsafe over the radio, but complied with the directives, and 

then went to Vaccari and Oistad with her safety concerns, which, contrary to Babcock and Clemetson, 

was not insubordination, but part of her protected activity. 

Nor did Clapp fail to acknowledge that Robinson and Fischer were her supervisors during the March 10 

meeting. On the contrary, Clapp clearly acknowledged her supervisors’ authority at the end of the 

March 10 meeting. (G. Ex. 17A, p. 59, 65, 68-69). In fact, at the end of the meeting, Clapp 

acknowledged the need to communicate through Robinson and Fischer, explained that she does follow 

the chain of command, and explained that she did not come to them with the truck-dumping procedure 

because she was told to go above them. She credibly testified that there had been no attempt to 

undermine them, just a breakdown of communication. (Id. at 68; Tr. 238). Clapp agreed that she 

would follow procedure and the meeting ended. (Id. at 69). 

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I find that Clapp was not insubordinate during the March 10 meeting, and that her remarks and behavior 

essentially were provoked by Fischer and fell within the res gestae of her protected activity. The 

Commission has recognized that an employer cannot provoke an employee into an indiscretion and then 

rely on that indiscretion as grounds for discipline. Generally, an employer may not provoke an 

employee to a point where the employee commits an act of insubordination and then rely on that 

insubordination to discipline the employee. See e.g., Vought Corp., 273 NLRB 1290, 1295 n.31 (1984), 

enfd. 788 F.2d 1378 (8th Cir. 1986); Reading Anthracite Co., 22 FMSHRC 298, 306 (Mar. 2000). For 

example, in Trustees of Boston Univ. v. NLRB, the First Circuit stated, “at least so long as the 

employee's indiscretions are not major, it is immaterial that the employee's misconduct would constitute 

a sufficient reason for discharge if the actual reason for discharge is the employee's participation in 

[protected] activity.” 548 F. 2d. 391, 393 (1st Cir. 1977). That court also indicated that employees are to 

be given some leeway for impulsive behavior, and that “the leeway is greater when the employee's 

behavior takes place in response to the employer's wrongful provocation.” (Id). In fact, the Fourth 

Circuit has recognized that “[t]he more extreme an employer's wrongful provocation the greater would 

be the employee's justified sense of indignation and the more likely its excessive expression.” NLRB v. 

M & B Headware Co., 349 F.2d 170, 174 (4th Cir. 1965). 

Here, I find that Clapp’s statements during the March 10 meeting were provoked by Fischer’s 

intemperate language and anger that Clapp had gone to Vaccari and Oistad with her safety concerns. 

Thus, I find that Clapp’s behavior and remarks in the March 10 meeting were provoked by Cordero’s 

response to her protected activity. Considering the particular facts and circumstances of this case, when 

viewed in light of the totality of the record evidence, I conclude that Clapp’s conduct during the March 

10 meeting was within the scope of the “leeway” the courts and the Commission grant to a miner whose 

“behavior takes place in response to [[an] employer's wrongful provocation.” Trustees of Boston 

University, 548 F. 2d at 393.50 Since Clapp’s behavior during the meeting was provoked and excusable, 

50 Whether an employee's indiscrete reaction upon being provoked is excusable is a question that 

depends on the particular facts and circumstances of each case. Interpreting the NLRA, the Seventh 

Circuit has found that an “employee's right to engage in concerted activity may permit some leeway for 

impulsive behavior, which must be balanced against the employer's right to maintain order and respect.” 

NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). Concededly, in applying this test, 

some courts interpreting the anti-discrimination provision of the NLRA have found that an employee's 

egregious conduct was sufficient to strip the employee of that Act's protection, thereby justifying the 

employee's discharge. For example, in NLRB v. Louisiana Mfg. Co., the Eighth Circuit denied 

reinstatement to a complainant who was “openly abusive in his language [towards a supervisor] and 

obviously insubordinate in his conduct.” 374 F.2d 696, 706 (8th Cir. 1967). In NLRB v. Soft Water 

Laundry, Inc., the Fifth Circuit denied reinstatement to an employee who cursed at a supervisor loudly 

and in the presence of other employees. 346 F.2d 930, 934-35 (5th Cir. 1965). And in Timpte, Inc. v. 

NLRB, the Tenth Circuit found that the termination of an employee who refused to stop using foul 

language and disparaging other employees after being warned not to do so was not discriminatory. 590 

F.2d 871, 873-74 (10th Cir. 1979). Other courts, however, have found adverse actions based ostensibly 

on vulgar employee outbursts to be improper where the employee's conduct was provoked by unjustified 

employer action. For instance, in Trustees of Boston University, the First Circuit upheld an 

administrative law judge's excusing of an employee's misconduct because it was stimulated by the 

(continued...) 

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Cordero’s insubordination defense based on any behavior or remarks during the March 10 meeting must 

also fail. 

Finally, Clapp was not insubordinate when she and Whitted met with Vaccari on March 12 to convey 

serious safety concerns. I find that such conduct was the epitome of protected activity and was the final 

event that precipitated her discharge. 

In sum, it has long been recognized that where an employer's reasons are false, it can be inferred “that 

the [real] motive is one that the employer desires to conceal—an unlawful motive—at least where ... the 

surrounding facts tend to reinforce that inference.” Shattuck Denn Mining Corp., v. NLRB, 362 F.2d 

466, 470 (9th Cir. 1966); see also Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (200)). I 

conclude that the surrounding facts in the extant record support the inference that Cordero’s various 

explanations that it discharged Clapp for insubordination are pretext seized upon as a convenient 

rationale to mask its unlawful motivation. In these circumstances, Cordero has failed to establish that it 

would have discharged Clapp for insubordinate conduct even in the absence of her ongoing and 

extensive protected activity. Having found that the proffered rationale for Clapp’s discharge is not 

credible and was merely a pretext for termination because of her protected safety complaints, I find that 

the Secretary has sustained her burden of proving by a preponderance of the evidence that Clapp’s 

termination on March 18, 2010 was in violation of section 105(c)(1) of the Act. 

IV. Back Pay Issues 

Clapp’s back pay period runs from the date of her termination on Thursday, March 18, 2010 until her 

temporary economic reinstatement effective Thursday, June 24, 2010. The amount of back pay due is 

ordinarily equal to the amount of gross pay the miner would have earned but for the discrimination, less 

actual net interim earnings, plus interest, reduced in appropriate circumstances by a willful loss of 

earnings when the operator raises the affirmative defense that the miner has failed to diligently search 

for alternative work. Gabel Stone Co., 23 FMSHRC 1222, 1224 (Nov. 2001). The operator bears the 

burden of proof on the affirmative defense of failure to mitigate damages, and the determination of what 

constitutes a reasonable effort to find alternative employment is based on the factual background 

peculiar to each case. Id. at 1225, citing Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984). 

(...continued) 

employer's own wrongful conduct. 548 F. 2d at 392-93. In Coors Container Co. v. NLRB, the Tenth 

Circuit held that the complaining employees' unprotected behavior -- cursing at employer-hired security 

guards who attempted to prevent the employees from engaging in protected activity -- was excusable 

impulsive behavior, which did not justify discharge. 628 F. 2d 1283, 1285, 1288 (1Oth Cir. 1980). In 

NLRB v. Steinerfilm, Inc., the First Circuit upheld a decision of the NLRB excusing a complainant's 

offensive and abusive language, which occurred during a confrontation with a supervisor in reaction to 

the supervisor's unjustified warning of the complainant. 669 F. 2d 845, 852 (1st Cir. 1982). And in M & 

B Headwear, the Fourth Circuit upheld the reinstatement of a complainant who, after her discriminatory 

layoff, threatened a supervisor and was rude to a vice-president, because “the unjust and discriminatory 

treatment of [the complainant] gave rise to the antagonistic environment in which these remarks were 

made.” 349 F. 2d at 174. 

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In an effort to meet its burden of proof on cross examination of Clapp, Respondent established that since 

Clapp was terminated on March 18, 2010, Clapp “applied” for work at one other mine in the Powder 

River Basin. (Tr. 377). Respondent’s counsel then asked Clapp, “Otherwise, you’ve not seen any jobs 

that pay you at the same pay rate, is that right?” Clapp responded, “I have looked yes, but not 

interviewed.” Counsel then asked, “So no other but the one application,” to which Clapp responded, 

“Correct.” (Id.). The court then asked when Clapp made that application, and Clapp responded on 

April 27, 2010. The court further asked whether Clapp applied anywhere else after she received the 

order of temporary economic reinstatement. Clapp responded, “I have looked for work but not 

applied.” Respondent’s counsel then ended cross examination of Clapp. (Tr. 378). 

On redirect examination, Clapp testified that she does not have a computer and went to Workforce in 

Gillette, Wyoming to help her look for jobs that were in the Powder River Basin. Through that effort, 

she found out that Buckskin Mine was hiring equipment operators and truck drivers. Clapp further 

testified that she had three days to send in a resume and she was called for an interview on April 27, 

2010. Tr. 382. When asked how the interview went, Clapp testified that it was a good interview, but 

uncomfortable because Clapp had to disclose on the application form that she had a job for 28 years but 

was no longer employed there. Tr. 382-83. Clapp further testified that the first question asked in the 

interview was why she was not working there anymore and Clapp told the interviewer that she had been 

fired, as advised to do by Workforce. When the interviewer asked why Clapp had been fired, Clapp 

responded that she had worked 28 years at a mine with over 23 bosses and she ran into two bosses that 

she could not please. Clapp testified that she has not seen any openings for shovel operator positions in 

the Basin. Tr. 383. She further testified that such jobs are normally filled through an internal process 

when a miner bids to move up into the position. Tr. 384. 

On re-cross, Clapp confirmed that she had been looking for other positions at mines during the back pay 

period and she did not limit her search to shovel operator positions since her interview with Buckskin 

mine was not for a shovel operator position. Tr. 396-97. 

Respondent argues on brief that Clapp is not entitled to an award of back pay because she failed to 

mitigate her damages and incurred a willful loss of earnings by failing to make a reasonable, good-faith 

effort to find alternative employment. Respondent cites none of the facts from the testimony outlined 

above, other than the fact that Clapp has only applied for one job since her termination and has not seen 

openings for shovel operators in the Basin. Because Clapp has not applied for more than one job since 

her termination, Respondent argues that she has not made a reasonable, good-faith effort to find new 

employment. R. Br. at 36. 

I reject Respondent’s argument, which conflates employment application with reasonable efforts to 

search for alternative employment. I find that Respondent has failed to meet its burden of proof on the 

affirmative defense that that Clapp failed to mitigate damages. On consideration of all the evidence, 

Respondent has failed to establish that Clapp failed to conduct a reasonable search for comparable 

employment or sustained a willful loss of earnings. Rather, the credited testimony of Clapp establishes 

that she “lowered her sights” beyond shovel operator positions and made a reasonable search for 

alternative mining work in the local mining community during the back-pay period in an effort to 

mitigate back-pay liability, but was unsuccessful under difficult and trying circumstances. Based on 

her reasonable efforts, I find that Clapp is entitled to full back pay for 14 weeks. 

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V. Civil Penalty Principles 

The Commission outlined the parameters of its responsibility for assessing civil penalties in 

Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated: 

The principles governing the Commission's authority to assess civil penalties de 

novo for violations of the Mine Act are well established. Section 110(i) of the Mine 

Act delegates to the Commission "authority to assess all civil penalties provided in 

[the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the 

Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act 

requires that, "[i]n assessing civil monetary penalties, the Commission [ALJ] shall 

consider" six statutory penalty criteria: [1] the operator's history of previous 

violations, [2] the appropriateness of such penalty to the size of the business of the 

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

operator's ability to continue in business, [5] the gravity of the violations, and [6] 

the demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

22 FMSHRC at 600, citing 30 U.S.C. § 820(I) (italics added). 

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

on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 

FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a 

judge's penalty assessment for a particular violation is an exercise of discretion, which is 

bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. 

Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

In exercising this discretion, the Commission has recently reiterated that a judge is not 

bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 

723 (Aug. 2008). In addition, the de novo assessment of civil penalties does not require "that 

equal weight must be assigned to each of the penalty assessment criteria." Thunder Basin Coal 

Co., 19 FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty determination 

“substantially diverge[s] from those originally proposed, it behooves the . . . judge[] to provide a 

sufficient explanation of the bases underlying the penalties assessed. Spartan Mining, 30 

FMSHRC at 699. Otherwise, without an explanation for such a divergence, the “credibility of 

the administrative scheme providing for the increase or lowering of penalties after contest may 

be jeopardized by an appearance of arbitrariness.” Sellersburg, 5 FMSHRC at 293. 

A. Explanation for Civil Penalty Assessed 

As noted, Section 110(i) of the Mine Act sets forth the criteria to be considered in 

determining an appropriate civil penalty. Here, the Secretary has proposed assessment of a civil 

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penalty in the amount of $20,000 for the § 105(c) violation committed by Respondent when 

terminating the employment of Clapp for exercising her statutory rights under the Act. In 

requesting the civil penalty, the complaint of discrimination avers in a short and plain statement 

that “[b]y terminating Cindy L. Clapp, Respondent discouraged the exercise of rights protected 

by the Act and undermined safety at the Cordero mine.” (Complaint of Discrimination at 2, 

para. 6). Furthermore, on brief, the Secretary argues the proposed penalty is appropriate 

because “Cordero is a large mine employing over 500 people, the mine was highly negligent and 

lacked good faith by directly retaliating against one of the mine’s strongest safety advocates, and 

increased the likelihood of injury at the mine by stifling, open effective communication about 

safety issues.” Sec. Br. at 40. Respondent answers that the proposed penalty assessment in 

excessive in light of the factors specified in section 110(i) of the Mine Act, and argues that the 

complaint does not “include a short and plain statement of supporting reasons based on the 

criteria for penalty assessment set forth in section 110(i) of the Act,” as required by Commission 

Rule 44. (Answer at 2, para. 10). 

Liberally construing the complaint allegations as a basic pleading to frame the issues to 

be tried, I find that the complaint is marginally sufficient to pass muster under Commission 

Procedural Rule 44. See generally, Carmichael v. Jim Walker Resources, Inc., 20 FMSHRC 

479, 484, n. 9 (May 1988). Accordingly, I address the penalty criteria in section 110(i) in light 

of the facts in the record. 

I strongly agree with the Secretary’s arguments, as quoted above. Furthermore, based on 

additional facts in the existing record, particularly the evidence of the chilling effect that Clapp’s 

discharge had on the rights of other miners to bring safety-related complaints to management’s 

attention at the Cordero Mine, I conclude that the proposed penalty of $20,000 is insufficient to 

effectuate the deterrent purpose underlying the Act’s penalty assessment scheme. 

The Secretary introduced no evidence of previous violations at the Cordero mine. Nor 

did the Secretary introduce evidence to establish that the Respondent has a history of violations 

of § 105(c) of the Act at this mine. The single 105(c) case that my Westlaw search uncovered 

was dismissed back in 1995. 

With respect to whether Cordero’s managers, including human resource personnel, were 

negligent in discharging Clapp for protected activity, I find that their negligence was high 

because they knew or should have known that Clapp’s discharge was unlawful based on the 

strength of the prima facie case and the pretextual nature of the alleged insubordination, as 

detailed herein. In these circumstances, I find no mitigating circumstances present. Moreover, 

given the breakdown in communication between D-crew personnel and Fischer and Robinson 

over safety concerns, Vaccari and HR had various courses of action available, apart from the 

unlawful discharge of Clapp. 

The gravity of Clapp’s unlawful discharge was severe and struck to the core of the Act. 

As Congress emphasized in Section 2(a) of the Mine Act, “the first priority and concern of all in 

the coal or other mining industry must be the health and safety of its most precious 

resource—the miner.” Clapp’s unlawful discharge undermines the strong anti-retaliation 

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provisions in Section 105(c)(1) that were designed to encourage miners to become more 

involved in voicing concerns about mine safety and health and to protect them against any 

possible discrimination for doing so. See S. Rep. No. 95-181 (1977). 

In addition, this record establishes that Respondent’s retaliation against Clapp was 

egregious especially because Clapp was the most vocal safety advocate at the mine and Clapp’s 

discharge had a chilling effect on the willingness of other miners to report safety concerns to 

Fischer and Robinson.51 A few examples of record testimony suffice. D-crew driver Artz 

credibly testified that Clapp always voiced concerns for safety. After she was fired, however, 

the D crew members were hesitant to raise safety issues (like chunks on the road or highwall 

failures) because open communication with D-crew management had broken down. (Tr. 430). 

Similarly, D-crew driver Miller was visibly upset on the witness stand and broke down crying 

because she was afraid to lose to her job for testifying against Cordero based on what happened 

to Clapp for raising safety issues with Vaccari. (Tr. 517-19).52 Miller then credibly testified that 

Clapp’s firing had a deleterious effect on D-crew communication because miners declined to 

raise issues that they normally would have for fear of being fired. (Tr. 535). Similarly, D-crew 

driver Whitted credibly testified that Clapp’s termination instilled a huge fear factor in D-crew 

miners, who viewed Clapp as a mentor, “because if they fire her after 30 years, what will they do 

to the rest of us who don’t have the time in?” (Tr. 583). Whitted likewise broke down crying 

on the stand when she recounted the fact that she acted in concert with Clapp to meet with 

Vaccari over safety issues and the breakdown in communication. (Tr. 577-79). Furthermore, I 

have inferred that Cordero did retaliate against Whitted for protected activity that she engaged in 

with Clapp on March 12. In these circumstances, I find that Clapp’s discharge had a 

particularly chilling effect on the willingness of other miners to raise safety issues at the mine. 

I also find that Cordero did not demonstrate good faith by attempting to achieve rapid 

compliance after notification by the Secretary that Clapp’s discharge was unlawful. In the 

temporary reinstatement proceeding, Cordero contested actual reinstatement and agreed to 

temporary economic reinstatement, effective 1June 24, 2010, more than three months after 

51 The record reflects that even before Clapp’s discharge, when she was on last and final 

warnings, other miners were reluctant to come forward to Fischer and Robinson with safety 

concerns. Thus, in the winter months of late 2009 and early 2010, Clapp called Fischer and 

Robinson on behalf of several truck drivers on her crew, including Helen Clark, Fallon 

Halverson, and Bob Brown, because their requests for water were ignored and they, unlike 

Clapp, chose not to risk angering Fischer or Robinson by continuing to call for water. (Tr. 112­

115). Similarly, the credible testimony of numerous miners corroborated Clapp’s testimony that 

turning around and dumping loaded coal trucks back at the face raised various safety concerns, 

but those employees, unlike Clapp, were reluctant to report their concerns to management. (Tr. 

417-19, 446, 449-453) (Artz); 503 (Stephens); 541, 552 (Miller); 565, 585-86 (Whitted); and 

619-20 (Halverson)). 

52 Similarly, D-crew driver Halverson, who testified pursuant to subpoena, testified that 

she was “terrified” to testify against Cordero because of fear of retaliation. (Tr. 600). 

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Clapp’s March 18, 2010 discharge. During preparation for the discrimination trial, Cordero 

failed to respond to certain discovery requests, thereby precipitating the Secretary to file a 

motion to compel discovery, which resulted in my Order Granting Secretary’s Motion to Compel 

Discovery, With Redaction Procedure. Although Respondent is free to pursue a vigorous 

defense, Respondent likewise assumes the risk of litigation when it is found, as here, that its 

defense is pretextual, lacks merit, and undercuts its good faith in attempting to achieve rapid 

compliance after notification of the violation. 

Finally, I consider the appropriateness of the penalty to the size of Cordero’s business. 

The record establishes that the Cordero Mine is a large, open-pit, surface coal mine with several 

miles of haul roads and ramps, located in Campbell County near Gillette, Wyoming. The nonunion operation is owned by Cloud Peak Energy Company, following a spinoff from Rio Tinto 

in November 2009. Given the size of the mine, its parent, and the coal trucks in use, annual 

tonnage is indeed large. Cordero failed to offer any argument or evidence that its ability to 

continue in business would be impaired by the proposed civil penalty. Sellersburg, 5 FMSHRC 

at 294, citing Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973). Moreover, Cordero failed 

to introduce any financial information or other specific information on the issue of whether the 

proposed penalty was inappropriate to the size of Respondent's business or adversely affected its 

ability to remain in business. Absent proof that the imposition of authorized penalties would 

adversely affect Cordero’s ability to stay in business, it is presumed that no such adverse affect 

will occur. See Broken Hill Mining Co., 19 FSSHRC 673, 677 (Apr. 1997) (citing Sellersburg, 5 

FMSHRC at 294, which cited Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973); accord 

Spurlock Mining Co., 16 FMSHRC 697, 700 (Apr. 1994). See also Steele Branch Mining, 18 

FMSHRC 6, 15 (Jan. 1996). 

Given my consideration of the appropriate penalty criteria explained above, the 

overarching purpose of the Act to protect miners from any retaliation for actively raising safety 

and health concerns, the deterrent purposes of the Act, and the evident chilling effect that the 

unlawful discharge of the leading safety advocate had on the willingness of other miners to raise 

safety issues at the mine, I double the statutory penalty to $40,000. Having observed the 

witnesses herein, including the fact that subpoenaed miners Miller and Whitted broke down in 

tears on the witness stand for fear of Respondent’s retaliation against them (Tr. 517, 577), I am 

troubled by the chilling effect that Clapp’s discharge has had on other miners’ willingness to step 

forward and engage in protected activity under the Act. That right is fundamental for miners’ 

safety and health! 

V. CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction in this proceeding. 

2. Respondent, Cordero Mining, LLC violated § 105(c) of the Act by discriminating 

against and discharging Cindy Clapp and otherwise interfering with her safety-complaint 

rights under the Act. 

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VI. ORDER 

Section 105(c)(2) of the Act provides, in pertinent part: 

“The Commission shall afford an opportunity for a hearing . . . and 

thereafter shall issue an order based upon findings of fact, affirming, 

modifying, or vacating the Secretary’s proposed order, or directing other 

appropriate relief. Such order shall become final 30 days after its 

issuance. The Commission shall have authority in such proceedings to 

require a person committing a violation of this subsection to take such 

affirmative action to abate the violation as the Commission deems 

appropriate, including but not limited to, the rehiring or reinstatement of 

the miner to his former position with back pay and interest. . . . .” 

The Mine Act’s anti-discrimination provisions must be broadly interpreted in order to 

further the congressional aim of making this Nation's coal and other mines safe places to work. 

Accordingly, the undersigned Administrative Law Judge of the Federal Mine Safety and Health 

Review Commission ORDERS that the Respondent, Cordero Mining, LLC, its officers, agents, 

successors, and assigns, shall 

1. Cease and desist from 

(a) Discharging or otherwise discriminating against Cindy Clapp or any other miner 

because they have engaged in protected activity under the Mine Act. 

(b) In any like or related manner discriminating against or otherwise interfering with 

miners in the exercise of the rights guaranteed them by Section 105(c)(1) of the Mine Act. 

2. Take the following affirmative action necessary to effectuate the policies of the Mine 

Act. 

(a) Within 14 days from the date of this Order, offer Cindy Clapp immediate and full 

reinstatement to her former job as a Level 6 shovel operator, or, if that job no longer exists, to a 

substantially equivalent position, without prejudice to her seniority or any other rights or 

privileges previously enjoyed, including any right to the expungement or non-consideration of 

disciplinary warnings under any company policy or practice after a certain period of time, 

including the time since Clapp’s unlawful discharge until her reinstatement, and also including 

any right to remedial training that Clapp may have for diminution of skills during the period of 

her unlawful discharge. 

(b) Within 14 days from the date of this Order, make Cindy Clapp whole for any loss of 

earnings and other benefits suffered as a result of the discrimination against her, less any net 

interim earnings, plus interest, as prescribed in Commission precedent at the IRS “adjusted 

prime rate” for the March 18 to June 24, 2010 back-pay period, as set forth in Secretary of behalf 

of Bailey v. Arkansas-Carnoa Co., 6 FMSHRC 2042, 2049-54 (Dec. 1983). 

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(c) Within 14 days from the date of this Order, remove from its files any reference to the 

unlawful discharge of Cindy Clapp, and, within 3 days thereafter, notify her in writing that this 

has been done and that her unlawful discharge will not be used against her in any way. 

(d) Preserve and, within 14 days of a request, or such additional time as the Secretary of 

Labor or MSHA may allow for good cause shown, provide at a reasonable place designated by 

the Secretary of Labor or MSHA or its agents, all payroll records, social security payment 

records, timecards, personnel records and reports, and all other records, including an electronic 

copy of such records if stored in electronic form, necessary to analyze the amount of back pay 

due under the terms of this Order. 

(e) Within 14 days from the date of this Order, pay to the Secretary of Labor a civil 

penalty in the amount of $40,000. 

(f) Within 14 days from the date of this Order, post a copy of this Decision and Order and 

maintain such posting for 60 consecutive days in conspicuous places, including all places where 

notices to miners are customarily posted. In addition to physical posting of this Decision and 

Order, this Decision and Order shall be distributed electronically, such as by email, posting on an 

intranet or an internet site, and/or other electronic means, if the Respondent customarily 

communicates with its miners by such means. Reasonable steps shall be taken by the 

Respondent to ensure that this Decision and Order is not altered, defaced, or covered by any 

other material. If the Respondent has gone out of business or closed the Cordero Mine involved 

in this proceeding, the Respondent shall duplicate and mail, at its own expense, a copy of the 

Decision and Order to all current employees and former employees employed by the Respondent 

at any time since March 18, 2010. 

(g) Within 21 days from the date of this Order, Respondent shall file with the Secretary 

of Labor or MSHA, a sworn certification from a responsible official attesting to the steps that the 

Respondent has taken to comply with the terms of this Order. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

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Distribution:(Electronic and First Class Mail) 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 

Laura E. Beverage, Esq., Kristin R.B. White, Esq., Jackson Kelly, PLLC, 1099 18th St., Suite 

2150, Denver, CO 80202 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone: (202) 233-3880

Fax: (202) 434-9949
 

December 13, 2012* 

PATTISON SAND COMPANY, LLC, : CONTEST PROCEEDINGS
 

Contestant :

 : Docket No. CENT 2012-137-RM 

v. : Citation No. 8659952; 11/09/2011 

SECRETARY OF LABOR MINE 

SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

 Respondent

 :

 :

 :

 :

 :

 : 

Docket No. CENT 2012-138-RM 

Order No. 8659953; 11/09/2011 

Mine: Pattison Sand Company, LLC 

Mine ID: 13-02297 

DECISION AND ORDER 

Appearances: Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, 

Kansas City, Missouri, and Lynne Dunbar, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, VA, for the Respondent 

Henry Chajet, Esq., David Farber, Esq., and Ed Wisneski, Esq., Patton Boggs 

LLP, 2550 M. St. NW, Washington, D.C., for Contestant 

Before: Judge McCarthy 

I. Statement of the Case 

The above-captioned matter is before me on a Notice of Contest filed by the Contestant 

pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”), 30 

U.S.C. § 815(d). On November 9, 2011, MSHA issued Citation No. 8659952 for an alleged 

violation of ground support use standard 30 C.F.R. § 57.3360.1 The Citation alleges: 

The ground control system in use by the mine has not been adequately 

designed, installed and maintained to control the ground conditions 

found where persons work or travel. A roof fall estimated at 20-30 

tons occurred in an area mined up to “Cap Rock.” This fall occurred 

in an unbolted area of the mine and a portion of the fall landed on top 

*

 This decision incorporates the corrections to the typographical errors in the Amended Decision 

and Order issued January 12, 2012. 

1 30 C.F.R. §57.3360 provides: Ground support shall be used where ground conditions, or 

mining experience in similar ground conditions in the mine, indicate that it is necessary. When ground 

support is necessary, the support system shall be designed, installed, and maintained to control the ground 

in places where persons work or travel in performing their assigned tasks. Damaged, loosened, or 

dislodged timber use for ground support which creates a hazard to persons shall be repaired or replaced 

prior to any work or travel in the affected area. 

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of the scaling equipment being operated by a miner causing extensive 

damage to the equipment. This could have resulted in a fatality. In 

accordance with its ground control plan the mine has relied on scaling 

as the only ground control in areas mined to the “Cap Rock” unless a 

pothole or brow existed, or there was less than 4 feet of Cap Rock.” 

As evidenced by the fall, mining up to the “Cap Rock” and scaling is 

not adequate to insure miner safety.2 

Sec. Ex. 1. The gravity of the citation is designated as significant and substantial and reasonably 

likely to result in a fatality, with moderate negligence, and one person affected. 

On November 9, 2011, MSHA also issued Order No. 8659953 under section 103(k) of 

the Act based on the alleged roof fall “accident” that occurred at Pattison Sand Company Mine 

on November 7, 2011. The 103(k) Order alleges: 

A roof fall accident occurred at this mine on November 7, 2011. A 

roof estimated at 20 to 30 tons occurred in 12 AR, an unbolted area of 

the mine and a portion of the fall landed on top of the scaling 

equipment being operated by a miner causing extensive damage to the 

equipment. This could have resulted in a fatality. This order is issued 

to assure the safety of persons at this operation. It prohibits all activity 

in all areas of the mine South of crosscut L that are not bolted and 

meshed until an MSHA examination and/or investigation has 

determined that it is safe to resume mining operations in the area. The 

mine operator shall obtain prior approval from an authorized 

representative for all actions to restore operations to the affected area. 

The section 103(k) Order was subsequently modified three times. A 

November 9, 2011 modification (8659953-01) allowed the mine operator to retrieve 

equipment needed for bolting and to allow the mine operator to institute the bolting 

process. A November 15, 2011 modification (8659953-02) allowed the operator to 

go underground and evaluate the ground conditions south of crosscut L. Personnel 

were limited to three individuals, inclusive of both mine and/or contractor personnel. 

Equipment was limited to that needed to transport the individuals conducting the 

evaluation. The time allowed underground was no more than 20 hours starting on 

November 15 and ending on November 19, 2011. A November 16, 2011 

modification (8659953-02) allowed up to four individual and the use of the JLG 

under ground to evaluate ground conditions and the time allowed under ground was 

limited to the 20 hours requested by the mine operator and ending on November 20, 

2011. Sec. Ex. 4. 

2

 Cap rock is a stronger, harder, or more resistant rock type overlying the weaker ore 

body or less resistant rock type. Tr. 88, 282. 

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On November 11, 2011, Contestant filed a Motion for Emergency Expedited Hearing 

based on the 103(k) withdrawal order, which closed those portions of the underground operation 

south of crosscut L that were not bolted or meshed. On November 15, 2011, Contestant filed a 

Supplemental Motion for Emergency Expedited Hearing based on a November 15, 2011 

modification of the order. I convened a conference call with the parties on November 16, 2011 

and set this matter for expedited hearing on November 18, 2011. 

An expedited hearing took place in Washington, DC on November 18, 2011. Witnesses 

traveled from the North Cental part of the United States to attend the expedited hearing on short 

notice. At the outset of the hearing, I heard oral argument on Contestant's Expedited Motion to 

Dismiss or, in the Alternative, for Temporary Relief, and on Contestant's Motion in Limine. I 

denied the motion in limine and held in abeyance my ruling on the motion to dismiss or for 

temporary relief. 

At the close of the hearing, the parties agreed to an expedited briefing schedule and 

Contestant requested that if any aspect of my decision is adverse to Pattison, that I certify the 

matter for “emergency appeal.” Accordingly, a short briefing schedule was set with briefs due 

on December 2, 2011, one week after receipt of the expedited transcript on the penultimate eve 

of the Thanksgiving holiday. Tr. 339-43. 

Thereafter, on November 21, 2011, Contestant filed a Motion for Decision without 

Briefing on the Scope of the 103(k) Order, Based Upon Record Evidence. On November 23, 

2011, the Secretary filed her opposition to the motion claiming that Contestant’s mine closure 

and concomitant due process "taking" arguments were factually and legally insufficient.3 On 

November 28, 2011, Contestant filed a reply. On November 30, 2011, I issued an extensive 

Order denying Contestant’s motion for decision without briefing and denying Contestant’s 

motion for certification of my interlocutory ruling. 

On Friday, December 9, 2011, at 5:46 p.m., as this Decision and Order was near 

completion, Contestant filed an Emergency Motion to Modify 103(k) Order to permit its experts 

to enter the underground portion of the mine to examine and evaluate conditions, install 

monitoring equipment and conduct tests. On Monday, December 12, 2011, during normal 

3

 I note that Contestant's Fifth Amendment taking argument, which I rejected as inchoate 

and not ripe in my November 30 Order, has only been alluded in oblique fashion in Contestant’s 

post-hearing brief. See, e.g., Br. at 32. I further note that I have been administratively advised 

that yesterday Contestant filed a civil action for declaratory and injunctive relief against MSHA 

and the Commission in the United States District Court for the Northern District of Iowa 

pursuant to the due process clause of the Fifth Amendment to the United States Constitution, the 

Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act (“APA”), 5 

U.S.C. §§ 701-706, and the inherent powers of the Court to review ultra vires actions of federal 

government agencies and officials, despite the fact that Contestant has not yet exhausted its 

administrative remedies. 

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business hours, the Secretary filed her terse Opposition and Motion to Strike Contestant’s 

Emergency Motion to Modify 103(k) Order based on the fact that the Court already has before it 

the issue of the scope of the 103(k) Order, and Contestant’s motion is an improper attempt to 

supplement the record with regard to that issue. The Secretary’s motion to strike is denied and 

Contestant’s motion is discussed and dealt with herein. 

This contest proceeding, now fully briefed by the parties, presents the following issues: 

(1) whether Citation No. 8659953 is valid, as written, or should be vacated; (2) whether Section 

103(k) Order No. 8659952 is valid as written and modified, or should be vacated because no 

accident occurred; (3) even assuming an accident occurred, whether the scope of the 103(k) 

order is unreasonable or an abuse of discretion; and (4) whether the Commission has authority to 

modify or limit the scope of the 103(k) Order, and whether it should do so. 

On the entire record, including my observation of the demeanor of the witnesses,4 and 

after considering the post-hearing briefs,5 I make the following: 

II. Factual Background 

A. Stipulated Facts 

The parties stipulated to the following facts. 

1. Contestant Pattison Sand, LLC, ("Pattison") is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977 as it is a mine operator as defined under section 

3(d) of the Act and its products enter, in effect, interstate commerce. 

2. The Federal Mine Safety and Health Review Commission has jurisdiction in this 

matter. 

3. Citation No. 8659952 and Order No. 8659953 were properly served by a duly 

authorized representative of the Secretary of Labor upon an agent of Pattison on the dates and 

places stated therein and may be admitted into evidence for the purpose of establishing their 

issuance but not the truth or relevancy of any statements asserted therein or for their legal 

validity. 

4 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

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

other events, corroboration or lack of corroboration for testimony given, and consistency or lack 

thereof within the testimony of witnesses and between the testimony of witnesses. 

5 Contestant attached Exhibits A-D to its post-hearing brief. These exhibits are not part 

of the record and will not be considered herein. I place them in a rejected exhibit file. 

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4. Pattison mines and processes sandstone both underground and above ground in order 

to produce frac sand in its Clayton County, Iowa mine where it operates. It operates on 12-hour 

shifts, working 7 days a week, 365 days per year, employing about 190 persons. 

5. No one was injured in the ground fall that occurred that resulted in the citation and 

order under contest. 

6. No mine explosion, mine ignition, mine fire, mine inundation or any injury or death of 

any person occurred at the mine when the ground fall occurred. 

7. The ground fall was not at or above an anchored zone in an active working or in an 

area where bolts were in use. 

8. The ground fall was not an outburst. 

9. The ground fall did not impair ventilation nor result in an entrapment for more than 30 

minutes or entrapment that had a reasonable potential to cause death. 

10. The 103(k) order resulted in underground areas of the mine being shut down south of 

crosscut L that were not bolted and meshed. 

11. No stipulation number eleven was read into the record. 

12. The ground fall occurred at about 3:00 a.m. on November 7th, 2011, during the 

milling/scaling of the roof using mechanical equipment with a canopy that protects the operator. 

13. The ground fall occurred when Pattison was following an MSHA reviewed, 

negotiated, and accepted comprehensive ground control plan. 

14. MSHA personnel were in and around the underground areas of the mine from 

November 7, 2011, through November 9, 2011, and completed their investigation safely and 

without incident on November 9. 

15. MSHA inspector Jim Hines, during his November 7 inspection, told the mine 

operator that the ground fall was not an immediately reportable event under 30 CFR Part 50. 

16. MSHA did not issue any closure order, citation, or other withdrawal or closure order 

between November 7 and November 9 when the contested order and citation were issued. 

B.	 The History of Roof Falls, the Imminent Danger Order, the Ground Control Plan, 

and the Testimony of MSHA’s Ground Control Expert 

On August 3, 2011, MSHA issued a section 107(a) imminent danger Order closing the 

mine due to concerns about roof falls in the underground portion of the mine. Tr. 153, 213, 

224-25, 229. That Order is not in evidence. 

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MSHA inspectors, including James Alan Hines from the Fort Dodge, Iowa field office, 

visited the mine on August 9, 2011 to document any roof falls or other ground conditions after 

the imminent danger order issued. Tr. 213, 261.6 MSHA North Central District Manager, 

Steven Richetti, whose office is located in Duluth, Minnesota, credibly testified that the 

inspectors observed about 9-11 roof falls in the mine about a week after the August 3 imminent 

danger order, some of which were similar in appearance to the instant roof fall on November 7, 

2011. Tr. 261. Secretary Exhibits 11 and 12 are photographs that depict two of these August 

2011 roof falls in areas south of crosscut L,7 which were taken by MSHA district office staff 

assistant, William Pomeroy, during an August 16, 2011 visit to the mine. Secretary Ex. 11 

depicts a roof fall in cap rock material in an area that was bermed off between highways 4 and 5 

and crosscut AT, which occurred after the imminent danger order was written on August 3 and 

before it was documented by inspector Hines during the August 9, 2011 visit. Secretary Exhibit 

12 depicts another roof fall in cap rock in an area that had been bermed off, but the specific 

location of the fall was not established. Tr. 212-20. Pomeroy did not know whether these falls 

occurred in active working areas or closed areas of the mine, but that areas south of AQ were 

mined up to cap rock. Tr. 221. 

The Secretary proffered and the court accepted Dr. Christopher Mark as an expert in 

ground control. (Tr. 64-71; Sec. Ex. 13, Mark C.V.). Dr. Mark had been asked by Joe Main, 

Assistant Secretary of Labor for Mine Safety and Health, to assist MSHA technical support in 

their evaluation of the roof conditions at the mine in August 2011. Tr. 74. Other than his 

August 2011 visit to the Pattison sandstone mine, Dr. Mark has never done any roof control 

evaluation work at other underground sandstone mines, only three of which apparently exist in 

the United States, but he has performed extensive ground and roof control work in coal mines, 

many of which have sandstone roofs, with similar bedded sedimentary composite, and he has 

extensive experience with rock mass classification systems that are applied throughout the field 

of ground control and rock engineering. Tr. 68-69. In these circumstances, I reject Contestant’s 

arguments on post-hearing brief at 31, that Dr. Mark, has no expertise in sandstone mines or in 

ground control issues beyond the coal-mine environment, and, therefore, no experience working 

in a sandstone mine or experience analyzing the particular rock formation and related dynamics 

unique to the sandstone mine environment. 

Dr. Mark visited the mine on or about August 19, 2011. He observed lots of evidence 

where rock had fallen from the roof. There were a number of instances of fresh debris on the 

6 Hines has ten to twelve years of underground mining experience in limestone mines. 

(Tr. 162). In 2010, he was assigned as the MSHA inspector to regularly inspect Contestant's 

sandstone mine. (Tr. 132). In that year, Hines conducted four regular inspections, that were 

each five to six weeks in duration. (Tr. 133, 163-64). As a result of these inspections and 

multiple hazard complaint and accident inspections, Hines has visited Contestant's mine fifteen 

to twenty times since 2010. (Tr. 133, 163-64). 

7 Secretary Exhibit 6 reflects a map of the mine. Sec. Ex. 6. 

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floor of the mine and a lot more evidence in the roof indicating recent falls of ground. Tr. 86. 

Many of the falls that Dr. Mark observed were in areas mined to cap rock. Tr. 87. 

To settle the 107(a) enforcement action, Contestant and MSHA negotiated a ground 

control plan that MSHA District Manager Richetti approved in early October 2011. Tr. 229, 

235-36. As a result, Pattison became the only mine in the North Central District to have an 

MSHA-approved ground control plan. Tr. 230. It was the first ground control plan Richetta had 

seen. Tr. 237-38. 

Dr. Mark participated in the plan negotiations with Contestant’s consultants Maochen Ge 

and John Head of Missouri Rolla university. Tr. 91. Dr. Mark testified that during 

negotiations, MSHA was concerned that there was an unacceptably high risk of unpredictable 

rock falls that could cause injuries throughout the mine, but MSHA could not predict where, 

when, or how big they might be, so engineered support (roof bolts and mesh) should be required 

throughout the mine to mitigate that hazard, but Pattison’s experts did not agree. Tr. 93, 95. 

Pattison’s position was that four feet of cap rock would provide effective support, and where 

there was less than four feet of cap rock, Pattison would install bolts and mesh. Tr. 96. Dr. 

Mark testified that MSHA did not believe that four feet of cap rock alone could provide effective 

support to miners working underneath the unsupported top, but reluctantly agreed with Pattison’s 

position in the ground control plan because roof bolting in other areas was introduced for the 

first time over a fairly large scale, and if Pattison’s experts were wrong, the plan would be 

revisited. Tr. 98-100. Dr. Mark explained that MSHA did not believe at the time that it had 

sufficient engineering and scientific data to justify going to court on the imminent danger order 

to obtain what it thought were appropriate protections for workers, but could not prove. Tr. 101. 

At the hearing, however, after the instant roof fall, Dr. Mark opined that cap rock is not 

effective support. Tr. 100-02. When asked by the court why MSHA did not “stick to its guns,” 

Dr. Mark explained that MSHA did not feel strongly enough about its position and the plan did 

include major improvements over the extant ground control practice at the mine, including 

provisions for bolting and meshing in areas that did not have four feet of cap rock and 

requirements that the operator test to ensure that cap rock was present. Tr. 102-03. 

Under the roof support provisions of the MSHA-approved ground control plan, all areas 

covering AQ and South and all areas to be mined in the future, would be mined up to the cap 

rock and carefully monitored and routinely scaled, as needed. Much of this area was already 

mined to cap rock. Only areas with less than 4 feet of cap rock thickness, or which have brows 

or potholes, would be bolted, meshed and shotcreted. Sec. Ex. 5, p. 2 and 3. Thus, the plan 

addressed not only those portions of the mine that would require "bolting and meshing," but also 

those portions of the mine that could be mined to caprock without a need for bolts and mesh. Id. 

The plan also anticipated that "brows" and "potholes" would occur from time to time in cap rock, 

and the parties agreed to specific actions to address such situations. Id. The plan anticipated that 

there would be extensive work in areas both mined and not mined to cap rock and that miners 

would be scaling down areas where there were risks of the roof degrading over time. Id. 

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As Contestant points out on brief, Dr. Mark did not visit the Pattison mine after the 

November 7 roof fall. Tr. 116. Dr. Mark did not remember whether he visited the area of the 

instant ground fall during his August visit or whether the area had been closed off by the 

imminent danger order, but he was in the general vicinity near the outcrop and the roof looked 

great at that time, like nice solid cap rock. Tr. 116-17, 119. Dr. Mark did examine inspection 

photos taking after the November 7 roof fall, and testified that he observed in the photographs 

the same kind of roof fall and debris that he had seen during his August visit. Tr. 110. Based 

on the mine map, he testified that the cap rock in the November 7 roof fall was in an area mined 

to cap rock, and although he did not know whether that cap rock was different from cap rock 

located elsewhere, none of Pattison’s experts ever indicated that there were different kinds of cap 

rock depending on where in the mine it was located, and there was no feasible way of knowing 

in advance whether cap rock would suddenly collapse, as in the November 7 roof fall. Tr. 112-

13, 120. In Dr. Mark’s professional opinion, the risk of a roof fall similar to that which 

occurred on November 7 is unacceptably high anywhere in the mine where there is no roof 

support system in place. This opinion was based on the failure of the cap rock as roof support 

during the November 7 roof fall, as miners would be exposed to the hazard anywhere a miner 

worked or traveled that is not protected by an engineered support system such as bolts and mesh. 

Tr. 113-14. He testified that his professional opinion about ground conditions in this mine did 

not depend upon the precise location of any particular observations that he made. Tr. 117. 

When asked on cross whether he observed the gully on the side of the surface, Dr. Mark 

Parks replied, “The little drainage creak that comes out and around there? I can’t say that I did 

make specific notice of that.” Tr. 119. Dr. Mark knew that the gully on the surface was 80 feet 

from the location of the November 7 roof fall, but he did not know whether the gully approached 

any other location in the mine. Tr. 120. He further testified on cross, that the cap rock does 

degrade over time through effective ventilation and humidity, necessitating frequent scaling to 

take down loose rock, however, scaling was an inappropriate engineering technique to eliminate 

the hazard of unpredictable rock falls at this mine. Tr. 121. Dr. Mark further testified on cross 

that most of the professionals in the ground control field cannot pinpoint the cause of a ground 

fall, only that there are a combination of factors that either increase or decrease the probability of 

a roof fall occurring. Tr. 122. Consequently, Dr. Mark’s work focuses on the ability to make 

better estimates of what the probability of a ground failure is, which he testified is more reliable 

most of the time than reliance on a particular mechanism triggering failure. Tr. 122. He further 

testified that there is some relationship between the stability of the cap rock, the potential for 

ground fall, and humidity, and some relationship between pillar degradation and depth of cover, 

although he could not quantify it, and that any weakness in the structure of the rock mass, such 

as bedding plains or fractures or joints, certainly affects the likelihood of a roof failure. Tr. 123-

24. Dr. Mark admitted that he did not examine or perform any evaluation of intrusions of either 

minerals, clays, water, layering, overburdened conditions or death of cover in the rock fall area. 

Tr. 124. 

On redirect, Dr. Mark testified that MSHA is charged with protecting miners from other 

incidents like the instant roof fall and the issue is not whether MSHA understands all the 

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mechanisms that took place in this particular fall, but whether it can identify specific features 

that will allow MSHA to identify other areas that are at higher risk. At the moment, all MSHA 

knows is that 4- foot thick cap rock section fell in and could have caused a fatality and there is 

no evidence that the properties of that cap rock are different from the cap rock elsewhere in the 

mine, but such cap rock is being relied upon to provide sufficient protection. Tr. 126. He 

testified that it is pure speculation to suggest that because the roof fall happens be near some 

surface weakening factors in the ground, an overall stable structure can be created. Tr. 126-27. 

On re-cross, Dr. Mark acknowledged that shotcrete and scaling were employed in many 

areas of the mine and the miner who was scaling during the instant roof fall was protected by a 

cab with protective canopy, cage, and long boom. Tr. 129-130. 

C. The November 7 Roof Fall and Inspection and the November 9 Citation and Order 

On November 7, 2011 at approximately 3:00 a.m., a ground fall occurred at the Mine 

while Pattison was milling/scaling the roof "using mechanical equipment with a canopy that 

protects the operator." Stip. 12, Tr. 36. "The ground fall occurred when Pattison was following 

an MSHA reviewed, negotiated, and accepted comprehensive ground control plan." Stip. 13,Tr. 

36. "No one was injured in the ground fall that occurred that resulted in the citation and order 

under contest." Stip. 5, Tr. 35. The fall occurred in 12AR. Tr. 333, 142. Immediately before 

the ground fall, the excavator operator had been conducting scaling work. Tr. 144-45. He saw 

some liquid dribbling down, which caused him to stop the excavator and back up. (Id.) At that 

point, the ground fall occurred. Id. The miner was not injured or trapped. Id. 

The ground fall did not involve any "mine explosion, mine ignition, mine fire, mine 

inundation or any injury or death of any person." Stip. 6, Tr. 35. The fall "was not at or above 

an anchored zone in an active working or in an area where bolts were in use," (Stip. 7, Tr. 

35:19-21), and it "was not an outburst." Stip. 8, Tr. 35-36. "The ground fall did not impair 

ventilation nor result in an entrapment for more than 30 minutes or entrapment that had a 

reasonable potential to cause death." Stip. 9, Tr. 36. 

Later that day, MSHA inspector Hines responded to a hazard complaint of an unreported 

accident and fall of roof where someone may have been injured. Tr. 135-136. Hines arrived at 

the mine around 4:00 p.m. and met with a mine management representative to provide a copy of 

the complaint. They proceeded underground to the accident site. Tr. 136-137. Hines was joined 

underground by Kyle Pattison, the owner of the mine. Tr. 140. 

Hines observed and photographed the accident site, which showed a roof fall partially 

covering an excavator. Tr. 136-143, 181-183; Sec. Exs. 1 & 2. Hines and Pattison agreed that 

the material that had fallen was cap rock, and that the rocks on top of and around the excavator 

were twelve to eighteen inches thick. (Tr. 140). Hines and Pattison jointly made a "guesstimate" 

of the weight of the fallen rock to be 20 to 30 tons. Tr. 141. No one could get near the rock fall 

area, which had been bermed off by Contestant, but Hines took measurements at an equivalent 

location and measured the dimensions of the fall at 30-35 feet, with the width of the mine 

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passageway at 35 feet, 11 inches. Tr. 140-143. Miners were bolting and meshing in the area and 

attempting to move closer to the excavator. Tr. 181-82. 

Hines' investigation continued through Tuesday, November 8, 2011. Tr. 149. He 

interviewed miner Brandon Millin, who was operating the excavator at the time the roof fell. Tr. 

144-147. Millin said he was scaling, everything looked okay, but then he saw some dribbling 

and hit the sticks to go backwards, but he was caught in the roof fall. Tr. 144-145. The roof fall 

damaged the door of the excavator, but he was able to kick it open and get out, at which point he 

put his head down and ran from the area. Tr. 145. Millin was not injured. Tr. 145. Hines also 

talked to Chris Lehman, the mine manager, and Ryan Rodenberg, a day-shift supervisor. Tr. 

147-148. Both confirmed that cap rock had fallen. Tr. 147-148. 

Hines was joined at the mine by MSHA inspector Runyon, who also visited and 

photographed the roof fall. Tr. 193-195; Sec. Exs. 7, 8, and 9. Runyon observed that the area 

where the fall had occurred was bermed off and could not be traversed. Tr. 201-202.8 I find that 

the ground fall did impede passage and occurred in active workings as the scaler was actively 

performing his assigned task. I further note that the parties’ stipulations Nos. 7, 9 and 15 and 

are not broad enough to preclude this finding. 

On November 9, 2011, after consulting with his colleagues, Hines issued the section 

104(a) citation and section 103(k) order to Contestant. Hines testified to the basis for his S&S, 

gravity, and negligence determinations, and his basis for finding one person affected. Tr. 167-

70. Although the citation contains no action to terminate, Hines testified that he discussed 

termination with Kyle Pattison and suggested that Pattison resubmit a plan that Hines would 

forward to MSHA tech support to determine whether the new plan would work, and that once all 

parties agreed to a plan that worked, he would terminate the citation. Tr. 173-74. Both Hines 

and Richetta testified that at the time the citation and order were issued Contestant was not 

violating the ground control plan. Tr. 158, 173, 177, 255. Hines and Richetta both testified, 

however, that the ground control plan was not working - because "cap rock is still coming 

down." Tr. 154, see also Tr. 159-160, 173-174, 233-237. The following colloquy from 

Contestant's cross-examination of Richetta, elucidates MSHA’s concern: 

Q. Okay. The 103 order covers that intersection [AC 3], doesn't it? 

A. Yes. 

Q. Okay. 

A. Unless it's been bolted and meshed. 

Q. Right. 

A. I don't know what part has been bolted and meshed. 

Q. Okay. We'll stipulate that AC 3 has not been bolted or meshed yet. 

8

 The record establishes that inspector Runyon subsequently wrote a citation for bad 

ground in the roof pursuant to 30 C.F.R. 56.3200 in October 2011, but that citation is not before 

me. Tr. 204. 

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A. Okay. 

Q. Okay. What evidence do you have that there is any danger in the 

ground at that intersection? 

A. The cap rock was supposed to be the best part of your mine. The 

cap rock failed. It was not bolted and meshed. This area is either 

going to be mined up to the cap rock, which then, in my opinion, needs 

- is going to behave like the cap rock. Or if it was worse than the cap 

rock and needed to be bolted and meshed to start with, it needs to be 

done now before it can fall on someone. 

Q. You don't have any specific information about that particular 

intersection. Your conclusion is based upon your general 

understanding of cap rock? 

A. It's been -- it's based on the history of the falls in that mine. 

Q. Okay. And if cap rock in your view fell at AR, then the cap rock at 

AC 3 must behave the same way; is that right? 

A. It was Pattison's contention that the cap rock would behave the 

same all over the mine. 

Q. Someone from Pattison told you that? 

A. Their plan said that all they had to do to the cap rock was mill it, 

examine it. And if there was brows and potouts less than 4-foot thick, 

it would be bolted. Otherwise, the cap rock would not create a 

problem. 

Q. So you know that the ground control plan that you approved 

discusses different kinds of things that can happen in cap rock. It can 

brow. It could form a pothole. It could be 4-foot thick. It can be less 

than 4-foot thick, right? The plan addresses all those contingencies, 

doesn't it? 

A. Right. But the plan also leaves open the possibility that something 

can happen like happened in AR where there wasn't a brow or a 

potout. And it wasn't less than 4-foot thick. 

Q. Okay. And that was the plan you approved, right? 

A. As a settlement. 

(Tr. 256-259). 

The scope of the 103(k) Order affected only areas underground that were south of 

crosscut L and not bolted or meshed. Tr. 161, 236; Sec. Ex. 4. Underground areas north of 

crosscut L, and areas bolted or meshed, were not affected by the 103(k) Order, including the area 

where the primary crusher and wet screen operate. Tr. 165. 

Based on his personal observation involving a lot of roof falls at the Pattison mine that 

were in cap rock, certified MSHA Inspector Jim Hines credibly testified that he issued the 103(k) 

Order to keep miners out from under unsupported top that had been mined up to cap rock 

because the ground control plan, which MSHA had approved in settlement of an imminent 

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danger order involving another roof fall at the mine in August 2011, did not work. Tr. 152-161; 

see also Tr. 224-25 (MSHA inspector Anthony Runyon testifying about August 3, 2011 

imminent danger order). 

Based on the instant roof fall under the approved ground control plan and the history of 

roof falls in cap rock at the mine, MSHA’s ground support expert, Dr. Mark, and other witnesses 

concluded that MSHA had erred in approving the plan as a result of the imminent danger order 

settlement because cap rock was not effective support in areas covered by the 103(k) Order. Tr. 

98-101, 159, 161-62, 233-37, 250, 258. In fact, MSHA District Manager, Steven Richetti, 

candidly admitted on cross examination that the ground control plan was a settlement of the prior 

imminent danger order, which he felt was the best he could do at the time, but in hindsight, he 

should not have agreed to the plan because miners were exposed to the hazard of roof falls from 

cap rock. Tr. 237, 250. When asked on cross examination whether the 103(k) Order was an 

attempt to undo the 107(a) imminent danger order settlement that was approved only a month 

earlier in October 2011, District Manager Richetti further credibly testified: 

A.	 No. The 103(k) order is trying to protect the miners. The citation for [56.3360] 

is trying to undo the settlement or trying to correct the ground control plan. The 

103(k) is to issue – it was issued to protect the miners in the rest of the mine from 

the same type of hazard that the scaler operator was exposed to in 12 AR. 

Q.	 Okay. And its your intention not to lift the 103(k) order until the entire mine is 

bolted and meshed, correct? 

A.	 The 103(k) order could be modified as it’s bolted and meshed or some other type 

of ground support that our experts would feel would be sufficient, yes. 

When further asked on cross examination to point out any particular areas of the mine 

that are in danger of ground fall, Richetti referenced “[a]ny unsupported part of that mine could 

fall at any time without warning to people that are traveling in the mine or working under it” and 

that “[b]olting and meshing will correct the immediate hazard” and “shotcreting would be a 

plus.” Tr. 251-52. Richetti’s conclusion that the cap rock was unsafe without these precautions 

was based on the history of falls in the mine. Tr. 258. Dr. Mark, who observed roof falls in 

areas mined to cap rock when visiting the mine as MSHA’s expert in August 2011, corroborated 

the conclusions of Hines and Richetta that cap rock, without engineering support, could not 

provide effective roof support. Tr. 98-100. Dr. Mark opined that an unacceptably high risk of 

roof falls, akin to the instant fall of November 7, 2011, existed anywhere in the underground 

mine where an engineered roof support system was not in place, as demonstrated by the failure 

of cap rock as roof support during the instant fall. Tr. 114. 

D.	 The Testimony of Contestant’s Expert and Assistant Mine Manager 

Mr. David West, Contestant’s international expert in mining engineering and ground 

control in sandstone mines (Tr. 275) offered a different opinion than MSHA’s expert and 

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witnesses.9 West testified that reports from Contestant’s ground control consultants (Maochen 

Ge and John Head),10 who contributed to Contestant’s ground control plan, led him to suspect a 

close correlation between the material properties and behavior of the St. Peter sandstone at the 

Pattison mine and the Athabasca sandstone deposit throughout Northern Canada, where West 

worked in just about every operating mine on ground control, support, and design issues. Tr. 

273-74, 283-84, 289. West’s testimony relied heavily on an unspecified publication by 

Professor Morgenstern at the University of Alberta, 11whom West described as a well-recognized 

guru in soil mechanics. West endorsed Morgenstern’s description of both the Athabasca 

sandstone and the St. Peter sandstone as “locked sand,” which West testified was an excellent 

geotechnical material for excavating holes, until it gets wet or moist and becomes extremely 

friable, a phenomenon dubbed “air slaking.” Tr. 284-85. 

Initially, on direct examination, West had difficulty directly answering counsel’s question 

about whether the Pattison cap rock would form a good roof or whether additional work for 

ground control was necessary. Tr. 286-290. He then testified that the zone of anchorage is the 

cap rock and that his investigation revealed that the Contestant tried to quantify the consistency 

or variability of the cap rock by drilling 50 test holes (“scratch tests”) to probe the thickness and 

strength of the cap rock throughout the mine, and the results were pretty consistent based on 

West’s discussion with the bolting supervisor, who performed the tests. Tr. 291-92. West 

initially testified that the extant ground control plan was sufficient (Tr. 292), but retreated 

somewhat from this view when describing improvements that should be made to the plan, as 

discussed below. Tr. 307-311, 316. 

West then proffered the opinion that the cap rock in the area of the fall (12 AR) was 

different than the cap rock in other areas because it had been locally compromised by the 

presence of a gully on the surface topography. Tr. 293, 323.12 

9

 West was retained by Contestant on November 14, flew to the mine on November 15, 

reviewed MSHA technical reports and Contestant’s MSHA-approved ground control plan on the 

plane, visited with mine management and rank-and-file, and spent most of November 16 

underground examining the geological conditions of the mine. Tr. 277-82. West was paid his 

standard hourly rate for his services. Tr. 320-21. West was Contestant’s representative under 

the sequestration rule, and thus was present throughout the hearing. Tr. 53. 

10 West testified that he had a long and close personal relationship with Head, spoke to 

Ge about this matter, and had firsthand knowledge of how they work. Tr. 304, 311-12. He 

obviously had a favorable opinion of their work. 

11 This publication was attached as Ex. D to Contestant’s post-hearing brief, but has been 

excluded from the record and placed in the rejected exhibit file. See note 5, supra. 

12 West testified that the gully was not in direct vertical line from the ground fall in AR12, but about 60-70 feet away. Tr. 322. 

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What I read about all this stuff on Morgenstern, the locked sand, the 

air slaking and discussions with the crews, I started thinking, well, 

hang on. This has got something to do with it, the failure mechanism

 that we are seeing. 

Tr. 323. West testified that there were a number of parameters involved in the failure and he 

tried to narrow it down and determine the main driver that caused the problem and whether there 

were similar conditions or a combination of parameters elsewhere in the mine. He determined 

that the presence of the gully on the topography, which might allow the preferential ingress of 

water or moisture and cause an air-slake problem, was a somewhat unique combination relative 

to the rest of the mine such that the extrapolation of those factors to other areas mined up to cap 

rock is a bit of a quantum leap. Tr. 294-96. West did acknowledge, however, “that there are 

areas in the mine that are susceptible to air-slake within the St. Peter sandstone.” Tr. 295. 

West further opined that the milling equipment and mining and milling methods used by 

Pattison were safe for miners. Tr. 297-99. That conclusion, however, appears to be undercut 

by the instant roof fall and the prior imminent danger order. West further opined that the ground 

control plan was a dynamic document, and was actually an Excel spreadsheet with an attached 

schedule, which was constantly changing, provided for appropriate contingencies, such as 

potholes and brows in the roof, and provided design drawings (C. Ex. 2) for implementation of 

the plan where bolting was required. Tr. 330-03. 

Contrary to MSHA representatives, West testified that if Pattison implements the ground 

control plan, it will be safe for miners to work in the mine. In response to counsel’s questions, 

West reiterated that 12 AR is not indicative of ground or cap rock conditions anywhere else in 

the mine, that the roof fall that happened there was anomalous based upon his observations of the 

gully while on the surface, and that there is no basis for the closure of any area of the mine other 

than 12 AR. Tr. 304-05. 

In response to relatively open-ended cross examination, West testified that there was no 

basis to clearly determine that the cap rock is unstable throughout the whole mine. He 

acknowledged, however, that there are specific areas where there has been failure into the cap 

rock. Tr. 306. He then hedged, stating that Pattison was an extensive mine where one tries to 

manage and minimize the risk to maintain safety and “it’s not a negligent process because the 

mine has maybe one failure.” Tr. 306-07. On further cross, West again acknowledged that there 

are specific areas where he has seen failures to a certain degree in the cap rock, but it is not 

ubiquitous throughout the mine. Tr. 307. 

When asked by the Court what was needed going forward, given those areas of cap rock 

failure, West opined that the essence was already in the plan, but he would divide the mine into 

three or four areas of similar properties or structure, which vary throughout the mine, and then 

tweak the plan with periodic inspection, documentation and testing. If further deterioration 

occurred, he suggested that the operator’s stakeholders and production crew conduct an 

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operational meeting to discuss increasing the level of ground control.13 Tr. 309-310. When 

asked by the court whether he would make any modifications to the plan, West suggested 

improving the collective understanding of the air-slaking process and adding some simple, 

robust instrumentation to the ventilation provisions of the plan, akin to tempering the air to try 

and take the moisture out of it. Tr. 310-11, 314; Sec. Ex. 5, p. 4, VI. 

On redirect, West conceded that some of the failures could have resulted from moisture 

in the atmosphere moving into the cap rock, but he testified that bolting and meshing would not 

prevent slaking from the moisture in the air. Tr. 313. Rather, West opined that a very thin layer 

of shotcrete would be the best way to seal off the surface of the sandstone and prevent the 

absorption of moisture from the ventilation system. Tr. 316. Then, however, when asked 

whether shotcreting over the cap rock would be a more effective solution than bolting and 

meshing, West equivocated. “It could be. Right now I don’t know. But I think that’s part of 

the – the basket of things to investigate. And that should be part of the ground control plan.” Tr. 

316. 

Finally, West testified that owner Kyle Pattison told him that the mine had an 

underground grain storage area, and if the moisture content of the grain reached a certain level, it 

would ferment and more moisture would be given off. Based on his conversation with Pattison, 

West testified that there were ground problems in the grain storage area associated with humidity 

brought in by the grain. Tr. 329. Upon further probing from the court, West could not recall 

where the grain storage area was located on the map of the underground workings. Tr. 330. 

In addition to West, Pattison also called assistant mine manager, Jack Porter, as a 

witness. Tr. 331-32. Porter testified that he felt safe walking in and around areas of the 

underground operation that were mined up to cap rock. Tr. 334. With respect to ground control 

methods used for areas not mined to cap rock, Porter testified that Pattison milled with a 

mechanical scaler, performed hand scaling with a scaling bar, used some shotcreting with pins 

and rebar, and "just lately" started doing bolting because of the new ground control plan. Tr. 

335.14 Porter further testified that he felt safe walking under those areas, and added, “They look 

good to me, and nothing has fell [sic] on me." Tr. 336.15 

13 I note that West did not specifically discuss MSHA when referencing the 

stakeholders. Tr. 309-10. 

14 Contestant had ordered a new bolting machine, which had not arrived yet, as the 

existing bolting machine was not ideal. Tr. 326. 

15 After Contestant's case, the Secretary proffered no rebuttal. Tr. 339. 

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E. E-mail Correspondence Underlying Contestant’s Emergency Motion to Modify 

103(k) Order 

After the hearing, in a December 6, 2011 email, Kyle Pattison wrote Richetta, as follows: 

I wish to appraise (sic) and update you on the progress of the ongoing work at the 

Pattison Mine. There was a teleconference call earlier today (5/12/2011) (sic) between 

Dr. C. Marks, Dr. Maochen Ge and Mr. Dave West. The subject of the call was to 

further discuss our proposed work plan and the modification of the existing K Order at 

the Pattison Mine. It is my understanding that Dr. Marks presented the position that 

MSHA is unwilling to allow any work at the Pattison Mine that is not performed beneath 

a bolted and screened roof. In addition, Dr. Marks stated that this would certainly apply 

to what he described as “research orientated work.” 

I understand that Mr. West explained that our proposed work plan is not “research orientated,” 

that it is designed to produce practical results with short term goals. 

Mr. West has suggested that PSC provide MSHA with an update and additional details 

concerning the proposed work plan to facilitate their decision on the request for the K Order 

modification. As stated previously the current program of work that is envisaged is preliminary, 

our intent is to periodically review and revise the program where necessary and to include any 

additional tasks that deem merit. Further details of the program, (i.e. a detailed description of the 

tasks and scheduled durations) will be developed in due course and shared for review by all the 

interested parties, (i.e. MSHA, JHSC, Univ. Missouri, PSC, etc.). 

An outline of the current tasks is as follows: 

•	 Dr. Maochen Ge, Dr. Jerry Tien and Mr. Dave West are planning to visit the Pattison 

Mine during the 12th to the 15th December. They will perform the preliminary work for 

the program of activities. They will require access to the mine to establish locations and 

install instrumentation for monitoring. It is anticipated the inspection will require access 

to the mine on Monday through Thursday, (December 12th to 15th). 

•	 All the areas of the mine that are options for instrumentation and monitoring sites were 

inspected by Dave West and Chris Lehman on Friday 2nd December. At that time all of 

these areas showed no visible signs of deterioration. 

•	 It is proposed that each of the selected areas will again be first thoroughly inspected on 

12th December before any of the proposed work activities are performed. This will 

include hand scaling in each area to “sound” if any deterioration has affected the area. If 

conditions warrant, this will be followed with a thorough mechanical scaling and an 

application of shotcrete if required. Our objective is to make each area safe before any 

work is started. 

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•	 Our proposed work plan involves the local installation of Worker Safety type 

instrumentation, such as GMM’s, (Ground Movement Monitors). It is my understanding 

that a description of the installation and reading procedures has been forwarded to Dr. 

Mark and that he is familiar with this type of instrument. It is our intent to install these 

instruments in any access to the work locations before the work begins. The GMM’s will 

be read at regular intervals during the work program. 

•	 We will apply shotcrete wherever this is deemed to be necessary. It should be noted this 

was an acceptable approach as agreed to by MSHA in the support of the Centrifuge 

location. 

•	 Please recognize that both Dr. Maochen Ge and Dr. Jerry Tien have busy schedules. This 

is a limited window of opportunity, therefore we ask you to approve the requested 

modification to the K Order so we can provide acceptable solutions for all the parties 

concerned. The objective of their visit is to develop a ground control instrumentation and 

data collection program at the mine. Their visit will also address the future mine 

ventilation plans. It is our intention to ensure that the work by Maochen and Jerry will be 

practical and provide immediate feedback. The instrumentation and monitoring program 

consists of: 

- Worker Safety Instrumentation. This involves the installation of GMM’s (Ground 

Movement Monitors), these are linear potentiometers installed on TBE 

mechanical rock bolts of various lengths. GMM’s are read with a simple 

resistance multimeter, any change in resistance is directly proportional to 

displacement. The Workers (and JHSC) can be quickly instructed in reading and 

interpreting the instruments. GMM’s will become part of the 5 Point Safety 

Inspection procedure. This instrumentation will be a priority. 

- Design Instrumentation. This involves monitoring the ground response to collect 

numbers for feedback into the mine design. The areas to be addressed include: 

mine pillars, roof spans and issues related to air slacking. The priority of these 

instrumentation programs will be a secondary to the Worker Safety 

Instrumentation and each element will have different durations. The likely 

durations will be established by Maochen and Jerry during their site visit. 

- Ventilation instrumentation and monitoring. PSC’s future plans include the use 

of VNetPC ventilation modeling software, this will enable potential 

improvements in the control of the mine atmosphere, (i.e. moisture content & air 

slack potential). Jerry Tien will require access to the mine under full ventilation 

to determine the locations for monitoring stations. 

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It is anticipated that intermittent access to the mine will be required during the site visit. 

It is intended that in due course the instrumentation locations, types and purpose of each 

instrument will be presented to MSHA, JHOC, etc., for their review and input. 

See Emergency Motion at Ex. A, pp. 1-3. 

F. MSHA’s Rejection of the Requested Modification 

In a December 7, 2011 response, Richetta wrote, as follows: 

Kyle, MSHA believes that it is not possible to determine the stability of the roof at the 

Pattison Mine from visual observations. Experience has shown that even roof that has been 

freshly scaled may suddenly collapse without warning. The only way that the roof can be “made 

safe” is to install roof support. While MSHA is willing to discuss alternative support designs for 

the future, at present we believe that the most appropriate support pattern is the one developed 

by Pattison’s rock mechanics consultant and described in Pattison’s ground control plan, namely 

8 ft. bolts with mesh. 

MSHA believes that the proposed activities as described are “research oriented.” Ground 

Movement Monitors are not an acceptable replacement for roof support in the Pattison Mine. 

For such monitors to have any validity as warning devices, it is necessary to first collect data on 

the magnitudes and rates of roof movement that indicate impending collapse. Enough data must 

be collected so that the conclusions are statistically valid. No such data has been collected at 

Pattison, or (to our knowledge) from any other sand mine. Since the only possible purpose of the 

proposed Univ. Missouri work is to collect such data, it must be considered as research. 

Similarly, while studies of the mine design and ventilation issues are desirable, they do not 

address the immediate need for roof support at the mine. 

In summary, MSHA does not believe that proposed work plan justifies the exposure of 

individuals to the hazards of the unsupported roof at the Pattison Mine. 

See Emergency Motion at Ex. A, p. 1. 

III. The Position of the Parties 

A. The Secretary’s Arguments 

1. The Section 103(k) Order 

a. Overview of Arguments 

In her post-hearing brief, the Secretary frames three issues presented by the 103(k) Order; 

1) whether the November 7, 2011 ground fall was an "accident" within the meaning of the Mine 

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Act; 2) whether the scope of the section 103(k) order is appropriate; and 3) what if any, 

temporary relief may the Court grant Contestant under section 105(b)(2) of the Act by modifying 

the section 103(k) order? 

The Secretary notes that my November 30, 2011 Order Denying Request for Decision 

Without Briefing found that an “accident” did occur which satisfies the precondition for issuance 

of a section 103(k) order. Order at 4. Therefore, the Secretary argues that MSHA's issuance of 

the 103(k) order was not an abuse of discretion. 

In addition, the Secretary argues that the scope of the 103(k) order is reasonable because 

MSHA considered all relevant factors in deciding to apply the order to unbolted and unmeshed 

cap rock throughout the underground portions of the mine, and articulated a rational connection 

between those factors and the adverse safety hazards associated with unbolted and unmeshed cap 

rock. In deciding to apply the order to unbolted and unmeshed cap rock, the Secretary states that 

MSHA considered, inter alia, Contestant's representations that cap rock was sufficiently stable 

such that roof bolts and mesh were unnecessary, that the cap rock roof fall on November 7, 2011 

occurred after Contestant's representations about the purported stability of cap rock, and the 

mine's history of cap rock roof falls throughout the underground portions of this mine, both 

before and after the November 7 “accident.” Accordingly, the Secretary argues that the scope of 

the 103(k) order is reasonable and should not be disturbed. 

Finally, the Secretary argues that the Commission does not have the authority to modify 

the issuance of a 103(k) order in any way - it must either sustain the order if it is reasonable, or 

vacate the order if it is arbitrary and capricious. She argues that the issuance of the order, which 

also identifies its scope, was reasonable and must be sustained. 

b. The Secretary’s Argument That the Scope of the Section 103(k) Order 

Is Appropriate 

The Secretary emphasizes that the Mine Act gives MSHA "plenary power" and 

"complete control" to make post-accident orders for the purpose of protection and safety of all 

persons. See Miller Mining Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). 

MSHA has broad authority to issue 103(k) orders to effectuate this purpose. See Buck Mountain 

Coal Co., 15 FMSHRC 539 (Mar. 1993) (ALJ Barbour); West Ridge Resources, Inc., 31 

FMSHRC 287 (Feb. 2009) (ALJ Manning). This broad grant of authority is recognized in the 

legislative history, which states that: 

[t]he unpredictability of accidents in mines and uncertainty as to the 

circumstances surrounding them requires that the Secretary or his 

authorized representative be permitted to exercise broad discretion in 

order to protect the life or to insure the safety of any person. The grant 

of authority under section [103(k)] to take appropriate actions and ... 

to issue orders is intended to provide the Secretary with flexibility in 

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responding to accident situations, including the issuance of withdrawal 

orders. 

S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978) 

(emphasis added). 

The Secretary notes that the Commission has not decided the appropriate standard for 

reviewing a Section 103(k) order. See Eastern Assoc. Coal Corp., 2 FMSHRC 2467, 2472 n.7 

(1980) (declining to determine whether a Section 103(k) order is reviewable on an arbitrary or 

capricious, reasonableness, or de novo basis). In light of the broad discretion afforded the 

Secretary under Section 103(k), the Secretary argues claims that it is appropriate that Section 

103(k) orders be reviewed under an "arbitrary or capricious" standard. See S. Rep. 95-181, at 29, 

reprinted in Legis. Hist. at 617 (Section 103(k) authorizes the Secretary "to exercise broad 

discretion in order to protect the life or to insure the safety of any person") (emphasis added); see 

also Miller Mining Co., 713 F.2d at 490 ("Section 103(k) gives MSHA plenary power to make 

post-accident orders for the protection and safety of all persons") (emphasis added). The 

Secretary argues that in Miller Mining Co., the court effectively applied that standard, holding 

that MSHA's modification of a Section 103(k) order was "reasonably tailored to the situation." 

713 F.2d at 490. 

The Secretary further notes that the Commission in Twentymile Coal Co., 30 FMSHRC 

736 (Aug. 2008) applied the following guidance in determining if the actions of a district 

manager were arbitrary and capricious: 

The scope of review under the "arbitrary and capricious" standard is 

narrow and a court is not to substitute its judgment for that of the 

agency. Nevertheless, the agency must examine the relevant data and 

articulate a satisfactory explanation for its action including a "rational 

connection between the facts found and the choice made." In 

reviewing the explanation, we must "consider whether the decision 

was based on a consideration of the relevant factors and whether there 

has been a clear error of judgment." Normally, an agency rule would 

be arbitrary and capricious if the agency has relied on factors which 

Congress has not intended it to consider, entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision 

that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the 

product of agency expertise. 

30 FMSHRC at 754-55, quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29, 43 (1983). See also Emerald Coal Resources, 30 FMSHRC 122, n. 1 (Jan. 2008) 

(ALJ Zielinski) ("While the Act does not specifically provide for review of section 103(k) 

orders, the Commission has jurisdiction to review such orders under an abuse of discretion 

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standard.”). Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980)."); Southern Ohio Coal Co., 

13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras) (holding that the issuance of the 103(k) 

order was "not an unreasonable or arbitrary abuse of [the inspector's] authority or discretion."). 

The Secretary emphasizes that "[a] party seeking to have a court declare an agency action 

to be arbitrary and capricious carries 'a heavy burden indeed.' " Wisconsin Valley Improvement v. 

FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quoting Transmission Access Policy Study Group v. 

FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). That party must show that the agency has failed to 

consider relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 

416 (1971), has made a clear error in judgment, see id., or has failed to "articulate a satisfactory 

explanation for its action including a 'rational connection between the facts found and the choice 

made.'" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The 

arbitrary and capricious standard of review is "highly deferential" and "presumes the validity of 

agency action." City of Portland, Oregon v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) (citations 

and internal quotation marks omitted). 

The Secretary argues that the scope of the section 103(k) order in this case was based on 

the fact that the roof fall had occurred from cap rock. She notes that in approving the ground 

control plan, MSHA accepted Contestant's representations that throughout its mine, roof mined 

to cap rock needed to be scaled, but otherwise needed no additional support and would not fall, 

where there were no brows, potholes, or cap rock thickness of less than four feet. The Secretary 

argues, however, that none of thoseconditions obtained where the roof fell. Moreover, the 

Secretary highlights the mine’s extensive history of roof falls, including falls from roof mined to 

cap rock without brows, potholes, or cap rock less than four feet thick. The Secretary 

emphasizes that after the instant roof fall MSHA now considers bolting and meshing to be the 

best method to insure miner safety in this mine. Since the fall was from roof that Contestant 

believed to be the safest, MSHA concluded that the safety of other roof in the mine south of 

crosscut L that was not bolted and meshed – some of which already had, or was scheduled to 

have, some type of ground support – was called into question. Accordingly, MSHA issued the 

section 103(k) order prohibiting all activity in the proscribed parts of the mine that are not bolted 

and meshed until an MSHA examination or investigation has determined that it is safe to resume 

mining operations in the area. 

c.	 The Secretary Argues That the Commission Does Not Have 

Authority to Modify the Issuance of a Section 103(k) Order 

The Secretary notes that Contestant has asked the Court to modify the section 103(k) 

order as issued by limiting its scope to the 12AR of the mine where the roof fall occurred, citing 

Tr. 47 ("The only relief we want is to limit the order -- under the temporary relief provision, the 

only relief we want is to limit the order to the area affected, which is the area where the fall 

occurred."); see also Contestant's Motion for Decision Without Briefing on Scope of 103(k) 

Order at 1-3 (requesting invalidation or restriction of the scope of the section 103(k) order). 

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With respect to temporary relief under 105(b)(2) of the Act, the Secretary relies on 

Performance Coal Co. v. Fed. Mine Safety & Health Review Comm'n, 642 F.3d 234, 239 (D.C. 

Cir. 2011), where the D.C. Circuit held that “§ 105 means what it says: temporary relief is 

available from any modification or termination of any order or from any issuance of an order 

under § 104." Accordingly, the Secretary argues that while the Commission can grant temporary 

relief under Section 105(b)(2) of the Act from the modification or termination of a Section 

103(k) order, it cannot grant temporary relief from the issuance of a Section 103(k) order, which 

is the relief sought by Contestant in this case. 

d.	 The Secretary Argues That Contestant Is Not Entitled to Temporary 

Relief Under Section 105(b)(2) Because It Has Not Established a 

Substantial Likelihood That It Will Prevail, Nor Has It Established 

the Requested Relief Will Not Adversely Affect the Health and Safety 

of Miners 

The Secretary notes that even if section 105(b)(2) relief is found to be available to 

Contestant, it is conditioned on a showing by Contestant that: (A) a hearing has been held in 

which all parties were given an opportunity to be heard; (B) the applicant shows that there is a 

substantial likelihood that the findings of the Commission will be favorable to the applicant; and 

(C) such relief will not adversely affect the health and safety of miners. 

The Secretary argues that Contestant has made no showing of substantial likelihood, 

particularly since its arguments are based primarily on its position that the roof fall was not an 

accident. The Secretary relies on her showing that the scope of the order is appropriate and not 

arbitrary and capricious. In addition, the Secretary highlights additional evidence at the hearing, 

in part from Contestant's expert, which purportedly shows that the possibility of roof falls 

throughout Contestant's mine, with concomitant harm to the health and safety of miners, exists 

throughout the mine, and not just in the 12 AR section where the instant roof fall occurred. The 

Secretary notes that Contestant's expert has seen specific areas of cap rock failure and expressed 

concern about the air-slake process as the key to a lot of the other failures. Tr. 307, 311. Given 

such evidence, the Secretary argues that Contestant has not shown that temporary relief from the 

Section 103(k) order will not adversely affect the safety of miners. 

2. The Section 104(a) Citation under 30 C.F.R. § 57.3360 

Using the coal mine plan-dispute case law as a guide,16 the Secretary argues that 

Contestant can violate Part 57.3360 even though it may be complying with an agreed-upon roof 

16 In using the coal-plan-dispute case law as an analogy, the Secretary does not advocate 

a wholesale incorporation of that coal case law, or the coal standards, into the metal/nonmetal 

context. She notes that coal plans are required by the mandatory standards, metal/nonmetal 

plans are not. However, she argues that in agreeing to the plan in the instant case, Contestant has 

conceded that ground control was "necessary" for its mine, and it is bound by that admission. 

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control plan. The Secretary notes that coal mine plans, including ventilation, roof control, or 

other plans, are negotiated between MSHA officials and operators, and are intended to address 

dynamic conditions in specific mines. She notes that conditions in any given mine may change 

faster than the parties can negotiate new plan terms, and it is the operator's responsibility to 

monitor and ensure that hazardous conditions are corrected. 

The Secretary argues that in agreeing to a ground control plan, Contestant conceded that 

ground control was "necessary" for purposes of 30 C.F.R. Part 57.3360, which requires that 

“system” to "be designed, installed, and maintained" when "ground conditions, or mining 

experience in similar ground conditions in the mine," suggest its necessity, especially if the 

system or components of that system need to be changed. The Secretary argues that neither 

"plans" in the coal mine context, nor "systems" in the context of Part 57.3360, are static concepts 

or documents, and to construe them otherwise essentially relieves an operator of its fundamental 

responsibility under the Mine Act.17 

a. The Case Law in the Coal Mine Plan-Dispute Context Demonstrates 

that Contestant Can Violate 30 C.F.R. § 57.3360 Despite Compliance 

With An Agreed-Upon Plan 

The Secretary emphasizes that coal mine dispute plans (by analogy) are not "contracts," 

are continuous in nature, and require good-faith negotiations between MSHA and the operator to 

maximize safety and health provisions for miners in the context of a particular mine. See, e.g., 

Penn Allegh Coal Co., 3 FMSHRC 2767 (Aug. 1981). She notes that even Contestant's expert 

recognizes that the dynamic nature of the mining environment requires constant attention to the 

provisions in a plan. Tr. 300, 308-311. 

The Secretary argues that in coal cases, an operator may fail to comply with a standard 

even though it fulfills all conditions of an approved plan. See Plateau Mining Corp. v. Fed. 

Mine Safety & Health Review Comm'n, 519 F.3d 1176, 1191-93 (10th Cir. 2008). For example, 

in Plateau Mining, the operator appealed from a Commission decision that it could be violating a 

ventilation standard even though it had fulfilled all the conditions of its approved mine 

ventilation plan. Id. The Commission recognized that "mine ventilation is a dynamic process" 

and that "the provisions of a ventilation plan may not be able to address every contingency." Id. 

at 1192. In affirming the Commission, the Tenth Circuit noted that the Third Circuit had reached 

the same result in Cumberland Coal. Res., LP v. Fed. Mine Safety & Health Review Comm'n, 

17 The Secretary argues that in using the term "system," Part 57.3360 contemplates a 

type of "plan" to address ground control. She notes that the dictionary defines the "system" as "a 

group of interacting, interrelated, or interdependent elements forming or regarded as forming a 

collective entity." American Heritage Dictionary of the English Language, s.v. "system" 

(Boston: Houghton Mifflin Company, 1976). While the term "plan" has a technical meaning in 

the coal context, the Secretary asserts that it is used more generally in the context of this 

particular case. 

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515 F.23d 247, 254 (3d Cir. 2008) (compliance with an approved ventilation plan was not a 

defense to a violation of 30 C.F.R. § 75.334(b)(1)). 

Similarly, the Secretary relies on language in Utah Power & Light Co. v. Secretary of 

Labor, 951 F.2d 292 (10th Cir. 1991), where the Tenth Circuit stated: 

It seems clear that the prohibition against accumulation (embodied in 

both statute and regulation) has independent significance. Petitioner's 

contentions that it is void for vagueness or arbitrariness, or is 

somehow merged into or limited by the requirement of a cleanup plan 

(so that the plan formulated by the company constitutes a "safe harbor" 

superseding the prohibition against accumulations unless and until the 

Mine Safety and Health Administration points out defects in the 

cleanup plan) are utterly unpersuasive. 

Id. at 295. 

The Secretary acknowledges, however, that for an operator to violate the standard, it 

must be on notice of the problem, and the adequacy of any particular roof support or other 

control must be measured against the test of whether the support or control is what a reasonably 

prudent person, familiar with the mining industry and protective purpose of the standard, would 

have provided in order to meet the protection intended by the standard. Canon Coal Co., 9 

FMSHRC 667, 668 (April 1987); see also Plateau Mining Corp., 519 F.3d at 1192 (quoting from 

Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)). The Secretary notes that in Canon, 

the Commission found that there had been no objective signs prior to the roof fall that would 

have alerted a reasonably prudent operator to provide additional support, and therefore vacated 

the citation. Id. Similarly in Newmont Gold, a case in which David West also testified as an 

expert, the Secretary notes that the "Leaky Fault" that caused the ground fall was "subtle, 

variable and unpredictable." Newmont Gold Co., 20 FMSHRC 1035, 1039 (Sept. 1998) (ALJ 

Cetti). Moreover, she notes that Judge Cetti found that geological faults, many of which were 

undetectable until mined through, were present throughout the mine, and insufficient to have 

alerted a reasonably prudent operator to provide additional support. Id. at 1040. 

The Secretary argues that unlike Newmont Gold, the conditions at the Pattison Mine 

mine provided ample warning to Contestant. She argues that Contestant's expert readily found 

objective signs that existed prior to the roof fall that should have alerted Contestant of the need 

for additional roof support - specifically that "the strength of the cap rock has been compromised 

by the presence of a gully on the surface topography." Tr. 293. The Secretary argues that this 

finding wholly substantiates the Secretary's position that the plan did not work and was in 

violation of the standard, despite approval of the plan and the fact that Contestant was not 

violating the plan. Moreover, while West concluded that the AR 12 ground fall was "unique to 

that location primarily due to the surface gully" (Tr. 296, see also Tr. 304-305), a conclusion that 

the Secretary's expert disputes, the Secretary argues that West clearly acknowledged other roof 

falls and the possibility of roof falls throughout Contestant's mine, with concomitant harm to the 

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health and safety of miners by testifying that he has seen specific areas of cap rock failure. Tr. 

307. 

Furthermore, when asked by the Court if he would make any modifications to the 

existing plan, West opined that a better or improved level of understanding of the air-slake 

process, which he viewed as key to a lot of the failures, would be facilitated by "some simple 

robust implementation." Tr. 310-311. The Secretary argues that this testimony is further 

evidence that an approved plan does not thereby become inexorably a plan that works, and a plan 

that "is what a reasonably prudent person, familiar with the mining industry and protective 

purpose of the standard, would have provided in order to meet the protection intended by the 

standard." Canon, 9 FMSHRC at 668. Accordingly, the Secretary argues that Contestant can be 

in full compliance with the plan and still violate Part 57.3360, particularly since Contestant was 

well aware of the roof hazards at this mine. 

b.	 The Secretary Argues That the Cited Condition Violated the 

Standard and was S&S 

The Secretary notes that to establish a violation of 30 C.F.R. § 57.3360, the Secretary 

must prove that: 1) "support" was not used or was not "designed, installed, and maintained;" 2) 

to control "ground;" 3) in places where persons work or travel in performing their assigned tasks; 

and 4) where ground conditions or mining experience in similar ground conditions in the mine 

indicate that it is necessary. The Secretary further notes that the standard applies to the 

conditions and mining methods in use at Contestant's underground mine, and its purpose is to 

insure that Contestant's miners are not injured by rock material while doing their jobs by keeping 

the rock in place. 

Briefly recounting the facts, the Secretary states that this case involves a twenty to thirty 

ton roof fall, i.e., a fall of ground, about one month after the Secretary and the Contestant had 

agreed upon a support system to be used at Contestant's mine to control ground fall. (Sec. Exs. 5 

& 6). That support system, however, failed to control the ground, as evidenced by the roof fall, 

which landed partially on a scaler being operated by one of Contestant's miners, who was 

performing his assigned task of scaling. The Secretary argues that given the numerous other cap 

rock and other roof falls in other areas of this mine, the extant support system did not control the 

ground as mining to cap rock and scaling was not adequate to insure miner safety. 

Consequently, the Secretary contends that the existing support system needs to be changed so 

that it will be designed, installed, and maintained to control the ground in places where persons 

work or travel in performing their assigned tasks. 

With regard to the designation of the alleged violation as significant and substantial 

("S&S"), the Secretary asserts that she satisfied all four prongs of the Mathies test. See Mathies 

Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). Specifically, the Secretary argues that the abovedescribed violation of the standard contributes to the discrete safety hazard of uncontrolled 

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ground and concomitant roof falls that are reasonably likely to hit and result in serious or fatal 

injury to a miner. 

In sum, the Secretary requests that Order No. 8659953 and Citation No. 8659952 be 

affirmed. 

B.	 The Contestant’s Arguments 

1. Contestant’s Argument That the Secretary Had No Basis to Issue the 

Citation 

The Contestant argues that the Secretary failed to adduce any evidence establishing the 

existence of any violation warranting the issuance of the Citation. Indeed, MSHA admitted that 

it issued the Citation not because Pattison committed any violation, but in an effort to undo the 

the ground control plan approved only four weeks earlier. Contestant asserts that apparently 

MSHA did not know what the appropriate procedural vehicle was for rescinding its approval of 

the plan, but issuing a baseless citation was not appropriate. 

Contestant also argues that MSHA cannot cite an operator for a violation if the operator 

did not receive "fair notice of the agency's interpretation" of a standard. Alan Lee Good, 23 

FMSHRC 995, 1005 (2001). Contestant notes that liability under 30 C.F.R. § 57.3360, a broad 

safety standard concerning the adequacy of particular roof support or other control, is resolved 

by reference to an objective standard of what action a reasonably prudent person familiar with 

the mining industry and protective purpose of the standard would have provided in order to meet 

the protection intended by the standard. See Newmont Gold, 20 FMSHRC at 1038 (quoting 

Canon Coal Co., 9 FMSHRC 667 (1987)). "The safety standard must 'give the person of 

ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly.'" Asarco, Inc., 14 FMSHRC 941, 947 (1992) (citations omitted). As ALJ Cetti 

observed in Newmont Gold: 

[T]he fact that there has been a ground fall does not mean there has 

been any violation of regulatory requirements. Underground mining is 

an inherently dangerous activity. Conditions sometimes are such that 

despite the operator's best efforts, roofs fall. It has been stated many 

times that "even good roof can fall without warning." 

20 FMSHRC at 1037-38 (quoting Consolidated Coal Co., 6 FMSHRC 34, 37 (1984)). 

Contestant argues that in this case, the Secretary had to do more than point to the fact that 

a roof fall occurred. Rather, to establish a violation, the Secretary must prove by a 

preponderance of the evidence that the roof support in place at 12AR on November 7, 2011, 

differed from "what a reasonably prudent person . . . would have provided in order to meet the 

protection intended by the standard." Id. Contestant claims that the Secretary never made such 

an offer of proof at the hearing, in fact, the exact opposite was shown. Specifically, at the time 

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of the roof fall, Pattison was operating under, and complying with, the MSHA-approved ground 

control plan in good faith. Tr. 36, 170, 173, 177, 236, 255. Applying the objective standard, 

Contestant argues that it would have been unreasonable for Pattison to do anything other than 

strictly comply with the agreed-to plan and MSHA’s approval and Pattison's adherence should 

be de facto evidence showing no violation. 

Moreover, Contestant argues that the Secretary failed to provide Pattison with any notice 

that Pattison was required to engage in some form of ground control above and beyond that 

required in the four week-old plan. Contestant relies on the following language from the judge’s 

decision in Beco Constr. Co., Inc., 23 FMSHRC 1182, 1190 (2001) (ALJ) to argue that once 

MSHA approved the ground control plan, it was precluded from issuing a citation for failure to 

have an "adequately designed, installed and maintained" ground control system, without first 

notifying Pattison that the plan was no longer sufficient. 

In this instance . . . the agency directly misled Beco Construction as to 

what is required. By accepting the fencing to abate a previous 

violation, MSHA gave notice to Beco Construction that the fence met 

the requirements of the safety standard. . . . With respect to the 

present citation, however, [a reasonably prudent person] would not 

have realized that a guard was required at the cited head pulley 

because MSHA previously accepted the fence to abate a guarding 

citation. MSHA is required to provide notice that fencing is no longer 

acceptable under the standard before a civil penalty can be assessed 

for the failure to have a guard at the cited location.. 

Contestant emphasizes that it is undisputed that Pattison was complying with the 

requirements of the agreed-to plan and that, prior to issuing the citation, MSHA failed to notify 

Pattison that the plan was no longer adequate to meet the requirements of 30 C.F.R. § 57.3360. 

Accordingly, Contestant argues that the Secretary's acceptance of the ground control plan was 

equivalent to assurance that as long as Pattison complied with the plan's requirements, Pattison 

would be compliant with the applicable safety standard. 

In sum, Contestant argues that MSHA admitted it issued the citation to attempt to undo 

the imminent danger settlement or correct the ground control plan. Tr. 250-51. In addition, 

District Manager Richetta admitted his unfamiliarity "with how to address a plan that's in 

existence that is inadequate. I thought the way to do it would be through a citation. I don't 

know. Maybe there is another way to do it. I think the plan needs to be addressed. I don't 

know." Tr. 238. Given the agency's own uncertainty as to how to undo what it once agreed to, 

but now considers inadequate, Contestant argues that MSHA cannot claim that it gave "fair 

notice" of the alleged inadequacies and the citation must be vacated. 

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2. Contestant’s Argument That the Secretary Had No Authority to Issue the 

103(k) Order 

a.	 The Argument That the 103(k) Order Does Not Meet the 

"Reasonableness" Standard of Review 

Despite acknowledging my decision in Pinnacle Mining Co., No. WEVA 2011-1758-R, 

2011 WL 5894153, * 22 (Sept. 2011), which found that when MSHA denies approval of a coal 

operator’s plan to modify a 103(k) order, the appropriate standard of review is an "arbitrary or 

capricious" standard, Contestant submits that the appropriate standard of review is a 

"reasonableness" test because the Court is not called upon to review "plan submissions requiring 

MSHA approval, i.e., Emergency Response Plans (ERPs), ventilation control plans, and roof 

control plans, [where] the Commission has applied an arbitrary and capricious standard of 

review." Id. at * 23 (citing Emerald Coal Resources LP, 29 FMSHRC 956, 965-66 (Dec. 

2007)).18 Contestant argues that issuance of the 103(k) order was unreasonable because no 

“accident” occurred, and even if there was an "accident," the Secretary failed to justify that the 

scope of the order was warranted given Pattison compliance with the approved plan. Contestant 

argues that section 103(k) restricts imposition of a control order to "affected areas" of a mine -

here area 12AR, the location of the roof fall. 

Even if "reasonableness" is not the applicable standard, Contestant argues that the 

Secretary failed to adduce evidence "show[ing] that 'the MSHA investigation team leader did not 

act in an arbitrary and capricious manner in deciding to issue the 103(k) order.'" Clintwood 

Elkhorn Mining Co., 32 FMSHRC 1880, 1893 (Dec. 2010)(ALJ Gill) (quoting Peabody Coal 

Co., 18 FMSHRC 686, 690 (May 1996), aff'd 111 F.3d 963 (D.C. Cir. 1997)). Contestant claims 

that this standard of review requires the Secretary to prove that her designated representative did 

not commit an abuse of discretion when it shuttered virtually all of Pattison's underground mine. 

See Utah Power & Light Co., Mining Div., 13 FMSHRC 1617, 1623, n.6 (Oct. 1991). Contestant 

notes that “[a]buse of discretion may be found when there is no evidence to support the decision 

or if the decision is based on an improper understanding of the law.” Twentymile Coal Co., 30 

FMSHRC 736, 765 (Aug. 2008) (opinion of Chairman Jordan and Commissioner Cohen). For 

18 Contestant asserts that the roof and ventilation control plan-approval case law in the 

coal context is irrelevant and inapplicable here because in the coal context, specific regulations 

require operators to submit "Emergency Response Plans (ERPs), ventilation control plans, and 

roof control plans" to MSHA for pre-approval. MSHA personnel then review such plans, and if 

rejected, operators can challenge the MSHA decision-making process under an abuse of 

discretion standard. Contestant notes that such infrastructure and process does not exist in the 

metal and non-metal context. See Tr. 230-31, asserting that no other underground non-coal 

mines in the north central MSHA district have a roof control plan. Thus, Contestant argues that 

there is no value in analyzing coal-based case law in the roof and ventilation plan approval 

context, because that case law applies to inapposite facts and law. 

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the reasons that follow, Contestant argues that the Secretary abused her discretion when she 

issued the 103(k) Order. 

b. Contestant’s Argument That No "Accident" Occurred.

 Contestant relies on Commission precedent requiring dismissal of a closure order issued 

pursuant to Section 103(k) of the Act when the order is not predicated on an "accident” as that 

term is defined by the Mine Act." Aluminum Co. of America, 15 FMSHRC 1821, 1827 (1993). 

Contestant notes that “accident,” as defined by the Mine Act, “includes a mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, or death of, any person." 30 U.S.C. § 802(k). 

Contestant notes that it is undisputed that none of these events occurred. Tr. 35. Rather, 

the parties stipulated there was a roof fall while a single miner, sitting in mechanical equipment 

with a cab that protected him, was scaling cap rock pursuant to the approved plan. Tr. 36. The 

parties further stipulated that the fall "was not at or above the anchorage zone in active workings 

where roof bolts are in use" (Stip. 7, Tr. 35) and that it "did not impair ventilation nor result in an 

entrapment for more than 30 minutes or entrapment that had a reasonable potential to cause 

death." (Stip. 9, Tr. 36). Contestant claims that the area in which the fall occurred was 

infrequently accessed only for scaling purposes (relying on Tr. 148), and because the approved 

plan was still being implemented in the area, Contestant claims that it had not resumed mining 

operations there. (relying on Sec. Ex. 5 at 1, the ground control plan.) Accordingly, Contestant 

argues that MSHA failed to establish that the area where the fall occurred was "active workings." 

Contestant emphasizes that issuing inspector Hines told Pattison that the ground fall was 

not an immediately reportable event under 30 C.F.R. § 50.2, and argues, therefore, that no 

"accident" occurred. Tr. 37. Contestant questions how inspector Hines can determine that the 

roof fall was not an "accident" for mere reporting purposes, yet exercise virtually unfettered 

discretion to issue the 103(k) Order closing the mine based on the same roof fall. 

Contestant argues that the Court must give effect to the plain language of the statute 

when clear and unambiguous. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 842-43 (1984); accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 

44 (D.C. Cir. 1990). Under the plain terms of 30 U.S.C. § 802(k), Contestant argues that no 

"accident" took place and the 103(k) Order must be vacated. 

Contestant challenges the Secretary’s argument that the word "includes" in Section 3(k) 

makes the accident definition "expansive" and the list of events non-exhaustive. Contestant also 

challenges her reliance on section 103(d), which states that "[a]ll accidents, including 

unintentional roof falls (except in any abandoned panels or in areas which are inaccessible or 

unsafe for inspections), shall be investigated by the operator . . . ., " and any reliance on Part 50 

reporting and recordkeeping regulations (30 C.F.R. 50.2(h)(8)), which define immediately 

reportable ground fall "accidents" as "[a]n unplanned roof fall at or above the anchorage zone in 

active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings 

that impairs ventilation or impedes passage." 

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In this regard, Contestant argues that MSHA's investigation, reporting and recordkeeping 

regulations (which inspector Hines told Pattison were not triggered by the roof fall) cannot 

expand the limited congressional authority given to MSHA to close mines. Contestant argues 

that it is "[]permissible . . . to interpret an imprecise term differently in two separate sections of a 

statute which have different purposes." Verizon California, Inc. v. Fed. Commc'ns Comm'n, 555 

F.3d 270, 276 (D.C. Cir. 2009) (quoting Abbott Labs. v. Young, 920 F.2d 894, 987 (D.C. Cir. 

1990). Thus,"'[i]dentical words may have different meanings where . . . the conditions are 

different.' . . . Because of that possibility - different contexts dictating different interpretations -

courts addressing the meaning of a term in one context commonly refrain from any declaration 

as to its meaning elsewhere in the same statute." Id. (emphasis added) (quoting Weaver v. U.S. 

Info. Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996)). See also Bituminous Coal Operators' Ass'n, 

Inc. v. Hathaway, 406 F.Supp. 371, 375 (W.D. Va. 1975), aff'd, 547 F.2d 240 (4th Cir. 1977). 

Indeed, as the D.C. Circuit explained in Weaver, identical words may have different meanings 

where "the subject-matter to which the words refer is not the same in the several places where 

they are used, or the conditions are different, or the scope of the legislative power exercised in 

one case is broader than that exercised in another." Weaver, supra, 87 F.3d at 1437 (D.C. Cir. 

1996) (emphasis added) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 

433 (1932)). 

Contestant stresses that section 103(k) entrusts MSHA with tremendous authority to shut 

down a mine and deprive an operator of its property rights prior to obtaining due process. 

Conversely, section 103(d) and 30 C.F.R. § 50.2 require investigations and reports to be made 

only for certain roof falls. Based on the precedent cited, Contestant argues that it is reasonable 

to read the term "accident" to include certain roof falls in Section 103(d) and Part 50, but not to 

include anything other than the specifically enumerated items listed in 30 U.S.C. § 802(k). 

Indeed, Contestant asserts that it is unreasonable to read the statute any other way, particularly 

here where inspector Hines admitted that the roof fall was not even a "reportable" "accident." 

Additionally, Contestant argues that the word "includes" in a statute is not necessarily 

"expansive." In Oldja v. Warm Beach Christian Camps and Conference Center, 79 F. Supp. 2d 

1208, 1213 (W.D. Wash. 2011), the court contrasted a California statute which "broad[ly]" 

defined the term "common carrier" with the Washington statute which it held "is narrow and 

exhaustive." Id. at *4. The Washington statute stated: "'Common Carrier' includes all railroads, 

railroad companies...." See, e.g,. Int'l Indus. Park, Inc. v. United States, --- Fed.Cl. ---, 2011 

WL 4684284, at *15 (Fed.Cl. Oct. 7, 2011) (emphasis added) (rejecting expansive reading of 

contract to include more items than those enumerated after word "includes" and stating "the 

word 'includes' does not only apply to exhaustive lists; sometimes it is used for non-exhaustive 

ones"). 

Contestant posits that the Secretary will rely on my decision in Pinnacle Mining Co., 

Docket No. WEVA 2011-1758-R, 2011 WL 5894153 (Sept. 2, 2011), which in turn [cited] 

Emerald Coal Resources, LP, 30 FMSHRC 122 (2008) (ALJ Zielinski) for the proposition that a 

"roof fall" is an "accident" sufficient to trigger application of Section 103(k). But in Emerald 

Coal Resources, the judge relied upon the definition of "accident" in Section 103(d) and applied 

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it to Section 103(k), which Contestant claims is erroneous where, as here, one portion of the 

statute containing the defined term provides far greater power than the other portion of the 

statute containing the term. 

Finally, Contestant argues thast even assuming arguendo that certain "roof falls" do 

constitute "accidents" sufficient to trigger section 103(k), the roof fall at issue here is not one of 

them. Indeed, Contestant notes that even the judge in Emerald Coal Resources noted that only 

"unplanned roof falls in active workings of a mine are accidents under section 103." Emerald 

Coal Resources, 30 FMSHRC at 124. In this case, Contestant claims that there is no dispute that 

the roof fall which occurred on November 7 did not occur in "active workings." Moreover, 

MSHA agreed that the ground fall that led to the 103(k) Order was not even an immediately 

reportable event under Part 50 as it was stipulated that inspector Hines told Pattison this. Tr. 37. 

 Contestant asks, if the incident was not "reportable" how could it be an "accident?" Thus, even 

under the Pinnacle and Emerald [analysis], Contestant argues that no "accident" occurred and 

the 103(k) Order must be vacated. 

c.	 Contestant’s Argument That the Scope of the 103(k) Order, Which 

Virtually Shutters Pattison's Underground Mine, is an Abuse of 

Discretion 

Contestant states that in evaluating whether MSHA has abused its discretion based on 

lack of evidence, the Commission has taken its analysis from the Supreme Court's decision in 

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance 

Company: 

[T]he agency must examine the relevant data and articulate a 

satisfactory explanation for its action including a "rational connection 

between the facts found and the choice made." In reviewing the 

explanation, we must "consider whether the decision was based on a 

consideration of the relevant factors and whether there has been a clear 

error of judgment." Normally, an agency rule would be arbitrary and 

capricious if the agency has relied on factors which Congress has not 

intended it to consider, entirely failed to consider an important aspect 

of the problem, offered an explanation for its decision that runs 

counter to the evidence before the agency, or is so implausible that it 

could not be ascribed to a difference in view or the product of agency 

expertise. 

Clintwood Elkhorn Mining Co., 32 FMSHRC 1880, 1893-94 (Dec. 2010)(ALJ Gill) (quoting 

Twentymile Coal Co. 30 FMSHRC 736, 754-55 (Aug. 2008) (opinion of Chairman Jordan and 

Commissioner Cohen) (quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983))), aff'd 111 F.3d 963 (D.C. Cir. 1997)); see also Pinnacle Mining Co., 2011 

WL 5894153, at * 23 (ALJ McCarthy)("While the scope of review under the 'arbitrary and 

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capricious' standard is narrow, [MSHA] must examine the relevant data and articulate a 

satisfactory explanation for its action, including a rational connection between the facts found 

and the choices made"). 

Considering the factual record framed against the factors outlined above, Contestant 

argues that MSHA abused its authority when it effectively closed the Pattison Mine "south of 

crosscut L." Although the Secretary's witnesses consistently asserted at trial that the 103(k) 

Order was issued to protect miners from ground control failure throughout the mine, Contestant 

claims that the Secretary adduced no evidence to suggest that such conditions existed throughout 

the mine or anywhere other than the location of the November 7 roof fall. Thus, even if validly 

issued for 12AR, Contestant asserts that the 103(k) Order is over broad. 

i.. Contestant’s Claim That MSHA Failed to Analyze the Relevant Data 

Contestant highlights inspector Hines’ testimony that issuing the 103(k) Order to close 

Pattison's underground mine south of crosscut L was "the only option." Tr. 152-53. Contestant 

argues, however, based on Dr. Park’s testimony, that the evidence adduced to justify the scope of 

the Order was limited to the Secretary's presumption that because one area of the mine supported 

by cap rock suffered a roof fall, other unknown and unexplored areas of the mine are similarly 

susceptible. Tr. 112 ("Q: . . . was the caprock involved in the November 7th roof fall atypical? 

A: . . . whether or not this caprock was different, I can't speak to that."). Contestant emphasizes 

that every cap rock fall prior to November 7, 2011 had been known to MSHA prior to its 

acceptance of the ground control plan adopted to resolve these very issues. For MSHA to 

question whether the approved plan was sufficient to deal with rock fall in November 2011 when 

all the evidence was before it in August does not compute, says Contestant. In any event, 

Contestant claims that areas of the mine where MSHA officials found evidence of prior roof falls 

were closed and not subject to active mining, and therefore present no hazard to miners, relying 

on Tr. 218, 221. 

Contestant asserts that MSHA's failure to analyze relevant data and rely on an untested 

presumption is further illustrated by District Manager Richetta’s testimony that after Pattison 

officials notified MSHA that a roof fall took place in 12AR, he became concerned that the 

ground control plan "apparently wasn't going to be working" because the incident took place in 

an area where cap rock support was in place. Tr. 233-34. Two days later, on November 9, 

2011, MSHA issued the 103(k) Order "[b]ecause ... the roof fall fell in an area of the mine that 

was relying on caprock as being the primary support. And we felt that this could occur 

anywhere else in the caprock where the scaler was going to be working, where they were going 

to be milling." Tr. 234. Contestant claims that this presumption was not supported by any 

additional evidence, other than previous observations by Richetta and a belief that "it appeared 

that this was the same type of fall in other parts of the mine." Tr. 235. Furthermore, Contestant 

asserts that Richetta could not point to any area of the mine where cap rock was actually in 

danger of collapsing. Tr. 251. 

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Contestant argues that Pattison's expert West offered evidence that completely discredits 

MSHA's theory. Unlike Dr. Park, who did not visit the mine to observe the ground control 

conditions after the roof fall, West visited the Mine on November 15, spent an entire day 

interacting with mine personnel, conducted an inspection and review of the ground conditions 

both underground and on the surface, and evaluated the geologic conditions against the extant 

ground control plan. Tr. 277-78, 281-82. Thus, after thoroughly reviewing the stratographic 

sequence in the ground above the cap rock in 12AR, and exploring scientific literature produced 

by sandstone mining experts regarding the geologic properties of cap rock in a sandstone 

environment, West concluded that the cap rock "is an excellent geotechnical material" that is 

"stable" and "really great material to excavate a hole in." Tr. 283-84. 

Contestant notes that after conducting this thorough, technical, and data-driven analysis, 

West concluded that the ground control plan was sound (Tr. 291), and that MSHA erred in 

determining the cause of the roof fall and the scope of the 103(k) Order. (Tr. 286-87, "There 

seemed to be ... uncertainty or indecision on the part of MSHA on what the problem was and 

what the cause of the problem was at the mine"). According to Contestant, West opined that 

MSHA erred because the agency's conclusions were "based on opinion rather than any 

substance." (citing Tr. 287, indicating that MSHA reports regarding the cause of the roof fall 

were not supported by data) (emphasis added)). West further testified that as a mining engineer, 

he liked to see numbers, but in reviewing MSHA's comments and conclusions regarding pillar 

sizing and pillar design, which Contestant argues formed the foundation for the agency's 

conclusions regarding the safety of cap rock throughout the mine, West "didn't see" numbers to 

support MSHA’s reports. Tr. 287. 

By contrast, Contestant relies on West’s testimony that Pattison's experts conducted a 

vigorous and analytically sound evaluation regarding the strength of the cap rock throughout the 

mine, based on the standard safety factor of 1.4 for pillar strength in underground sandstone 

mines, and determined that the ground control plan’s reliance on the strength of the cap rock was 

sound. Tr. 288-90. Contestant relies on West’s further testimony that "Maochen [Assistant 

Professor at the University of Missouri, Rolla] took the MSHA technical support 

recommendations, actually calculated the existing pillar design layout, the pillar sizes and 

roadways at the mine . Even with low conservative strength values, he came up with a factor of 

safety of 1.7" Tr. 292. Contestant argues that this analytically driven conclusion not only rebuts 

the proposition offered by each MSHA witness, it undermines MSHA's justification underlying 

the scope of its 103(k) Order and illustrates a classic example of abuse of discretion in agency 

decision-making, which was never subject to a rigorous analysis of data and scientific principles. 

ii.	 Contestant’s Claim That MSHA Failed to Consider "the 

Gully" 

Contestant also faults MSHA's analysis for failing to explain why a fall occurred at 

12AR, but nowhere else. Contestant attributes such error to MSHA’s failure to recognize the 

difference between cap rock present in 12AR and cap rock present throughout the rest of the 

mine. Contestant relies on West’s conclusion that "the strength of the caprock [in 12AR was] 

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locally compromised by the presence of a gully on the surface topography," which allowed water 

or moisture to penetrate the cap rock and reduce its strength. Tr. 293. Contestant argues that 

this is important, because while cap rock in sandstone is initially strong, that strength 

deteriorates once water or "any sort of moisture" is introduced through either the surface of the 

stone, or when moisture is absorbed through the air. Tr. 286. 

In this regard, West testified that cap rock "[a]s a sandstone, it's stable and exhibits pretty 

good strengths until it gets wet, and then it becomes extremely friable." Tr. 284. He further 

explained that cap rock is "one of these materials that, if you put a solid piece of rock and 

immerse it in water, in a very short period of time, it will disintegrate." Tr. 285. Contestant 

then argues, without record citation, that this "slaking" effect resulted from the presence of a 

gully above the surface rock, and ultimately degraded the caprock from a strong substance in 

12AR to the point where the roof fall occurred there. Contrary to West’s testimony above, 

Contestant then asserts on brief, without record support, that moisture alone does not impact the 

sandstone. If that were the case, contestant says there would be no mine. Rather, Contestant 

argues that there are other factors that interact with the moisture that cause potential problems -

stresses from pillar, gradation, etc., and these items are already contemplated by the ground 

control plan. See, e.g., Sec. Ex. 5, at 1, detailing requirements for addressing pillars with 

pinch-out deterioration or those that show signs of significant degradation. 

Relying on West’s testimony, Contestant next argues that the record evidence 

demonstrated without dispute that ground conditions in 12AR are unique, and not prevalent 

throughout the rest of the mine: "I think the 12 AR ground fall is unique to that location 

primarily due to the surface gully that you mentioned. This doesn't exist in these other areas. So 

the extrapolation of those factors to the rest of the mine is a bit of a quantum leap." Tr. 296. 

Contestant notes that MSHA failed to evaluate this factor, and claims that West described this 

factor as critical for determining what "was the main driver that caused" the roof fall in 12AR. 

Tr. 294. 

Based on West's experience and testimony, Contestant argues that MSHA inappropriately 

drew a conclusion about the quality of cap rock throughout the mine by extrapolating results 

from the roof fall in 12AR. Tr. 295-96. Contestant further argues that this "quantum leap," 

which is akin to condemning an entire house for one faulty piece of drywall, fails to account for 

a significant factor contributing to the roof fall, and demonstrates an abuse of discretion. 

Contestant notes that when MSHA does not consider actual evidence of a failure, other 

judges have invalidated a 103(k) Order as an abuse of discretion. Contestant relies on Clintwood 

Elkhorn Mining Company, 32 FMSHRC 1880 (Dec. 2010), where ALJ Gill held that MSHA's 

imposition of a 103(k) Order was arbitrary and capricious - and an abuse of enforcement 

discretion - because of "the way in which MSHA dealt with the evidence of brake failure in 

order to promote the theory of overloading." Id. at 1894. There, Judge Gill addressed MSHA's 

decision to impose a 103(k) Order, which attempted to regulate truck load limits without express 

regulatory authority to do so, after finding that MSHA ignored "clear and reliable evidence of 

brake failure or deemed it so unlikely as to not warrant mention in ... any of the citations and 

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orders." Id. at 1895. Contestant notes that while the operator presented "clear and reliable" 

evidence that a truck rolled over pursuant to brake failure, and not overloading, MSHA officials 

refused to recognize brake failure as a potential cause of the incident and did not rebut such 

evidence. Id. at 1889 and 1895. Contestant cites the following passage from Judge Gill’s 

analysis: 

There is no explanation why MSHA did not consider this evidence or 

factor it into its enforcement actions. Omission of the brake failure 

evidence impacts the assessment of the requirement that there be a 

rational connection between the facts found and the choices made. 

MSHA's decisions were not based on a consideration of the obvious 

relevant factor of brake system failure. This constitutes an unexplained 

and arbitrary failure to consider an important aspect of the problem. 

Id. at 1895. 

Contestant argues that a similar result is warranted in this case because MSHA failed to 

rebut or even consider West's conclusion that moisture from the gully caused the roof fall. 

Contestant notes that West personally observed the underground and surface mining conditions 

and concluded that cap rock failure caused by moisture-driven slaking in 12AR is not prevalent 

throughout the rest of the underground area impacted by the 103(k) Order. Contestant 

emphasizes that in stark contrast, MSHA did not even examine the surface area surrounding the 

mine. 

iii.	 Contestant’s Claim That the 103(k) Order is Implausible and 

Not Based on Agency Expertise 

Contestant states that MSHA’s ground control expert, Dr. Mark, has no expertise in 

sandstone mines or in ground control issues beyond the coal-mine environment. Tr. 67, 70. 

Contestant argues, therefore, that Dr. Mark, has no experience working in a sandstone mine, and 

no experience analyzing the particular rock formation and related dynamics unique to the 

sandstone mine environment. I have rejected these contentions, however, in my findings of fact 

at page 6, supra. 

Furthermore, Contestant emphasizes that Dr. Mark did not visit the mine after the roof 

fall incident that preceded the 103(k) Order. (Tr. 100, "I have not been at the mine. I have not 

looked at this particular roof fall.") In fact, Contestant notes that Dr. Mark has not visited the 

mine since August 19, 2011, and could not recall the precise areas of the mine he traveled in 

during that visit. Tr. 107, 116. And, Contestant notes, it was following that visit that Dr. Mark 

[reluctantly, Tr. 98-99] recommended MSHA's agreement to the ground control plan. 

Although Contestant concedes that Dr. Mark now has testified that something else should 

have been done, Contestant avers that he has absolutely no personal knowledge regarding the 

current condition of the mine or the specific conditions throughout the mine affected by the 

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scope of the 103(k) Order. Accordingly, Contestant argues that Dr. Mark's conclusions 

regarding the appropriate scope of the 103(k) Order are arbitrary and biased and, therefore, 

without merit, and that any MSHA justification of the 103(k) Order based upon Dr. Mark's 

purported "expertise" should be ignored. 

iv.	 Contestant’s Claim That the 103(k) Order Improperly Affects 

Unaffected Areas of the Mine 

Contestant claims that the plain language of Section 103(k) restricts imposition of a 

control order to "affected areas" of the mine when an accident takes place. Contestant argues 

that reference to the overall construction of the Mine Act supports this understanding since in the 

context of an imminent danger under section 107(a), the Act only permits MSHA to impose a 

withdrawal order for the area affected by the alleged hazard. Contestant reasons that these 

provisions express Congress's desire to provide broad power to protect miners when MSHA 

recognizes a particular hazard, yet restrict the Agency's authority by limiting the power to order 

withdrawal to those areas actually affected by a specific hazard. 

Contestant further argues that while Section 103(k) provides the Secretary with enormous 

power to usurp an operator's control of its private property, the Constitution mandates that this 

power cannot be unlimited, and the legislative history of the Mine Act supports this conclusion. 

Contestant cites Senate Report language that a "closure order closes a mine or a portion of the 

mine affected by the particular condition or practice to all but essential personnel until such 

time as the conditions or practices resulting in its issuance have been abated." S. Rep. 95-181, at 

11 (1977) reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History 

of the Federal Mine Safety and Health Act of 1977 ("Leg. History"), at 617 (1978). In 

Contestant’s view, this language suggests that Congress contemplated providing the Secretary 

with authority to issue a closure order under certain circumstances, but limited to those areas 

affected by a certain condition. 

Even in an imminent danger scenario, which Contestant claims that MSHA knew it could 

not even allege in this matter (citing Tr. 153), the Secretary's authority is limited to closing the 

mine and withdrawing mine personnel from the areas affected. S. Rep. 95-181, at 35, Leg. 

History at 626. Contestant emphasizes that in the context of an imminent danger, Congress 

intended "that the Act give the necessary authority for the taking of action to remove miners 

from risk" in "situations where there is an immediate danger of death or serious physical harm." 

Yet, even in that dire circumstance, Congress still chose to limit that authority by instructing that 

an inspector "determine the affected area and issue a withdrawal order barring all persons . . . 

from such area." Id. at 625-26. Furthermore, Contestant notes that Congress made clear that "no 

temporary relief may be granted by the Commission from the issuance of such an [imminent 

danger] order," given "the importance of the imminent danger order as a means of protecting 

miners." Id. at 626. In this way, Contestant argues that Congress elevated MSHA's authority 

under Section 107 to respond to scenarios where an inspector encounters a dangerous situation, 

chose to restrict the Commission from granting operators temporary relief from imminent danger 

orders, and yet still restricted MSHA's authority to issue Section 107 orders to affected areas. 

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Accordingly, Contestant argues that it would make no sense to interpret MSHA's authority under 

Section 103(k) in a more expansive fashion when Congress clearly provided MSHA with less 

expansive authority - and more due process - under that section. Contestant avers that expanding 

that authority via judicial interpretation would controvert Congressional intent. 

v.	 Contestant’s Argument That MSHA Acted Unreasonably by 

Issuing A 103(k) Order That Obviates the Approved Ground 

Control Plan 

Relying on precedent that involved a citation under 30 C.F.R. § 57.3360, but no 

concomitant 103(k) order, Contestant argues that it is the Secretary's burden to establish that the 

103(k) Order meets the "objective standard of what action a reasonably prudent person, familiar 

with the facts and the protective purpose of the standard would have taken to provide the 

protection intended" by the order. Newmont Gold Co., 20 FMSHRC 1035, 1038 (Sept. 1998) 

(ALJ Cetti)(citing Canon Coal Co., 9 FMSHRC 667, 668 (1987). Thus, Contestant argues that 

MSHA's decision to issue the 103(k) Order affecting areas beyond 12AR should be vacated 

because it is unreasonable in light of the existing and recently approved ground control plan. 

Contestant notes that MSHA accepted the plan, which retains all of the protective 

measures that MSHA agreed would sufficiently protect miners working throughout the mine. 

Although conceding that the plan contemplates that cap rock serve as one of many protective 

measures to support the roof throughout the mine, Contestant points out that the plan requires a 

great deal more, including a comprehensive approach to ground control that, on its face, 

contradicts the Secretary's assertion at trial that Pattison claimed cap rock alone would provide 

sufficient support throughout the mine. Tr. 237. Contestant cites language at the outset of the 

plan, which provides: 

Prior to resuming mining operations in each area, the mine will 

carefully examine, scale or install additional support as needed in 

that area, beginning with accessing the entries leading to and from the 

centrifuge location, which will be examined and scaled as needed to 

make them safe for conducting work... 

(Sec. Ex. 5, at 1) (emphasis added). 

Additionally, Contestant notes that the plan currently requires cap rock to be bolted and 

meshed where there is any indication that the cap rock has been compromised or is otherwise 

judged to be insufficient for support. Id. at 3. Contestant claims that the Secretary adduced no 

testimony that the plan, which Dr. Mark and others signed off on only four weeks prior to the 

instant fall in settlement of the 107(a) enforcement action, would not ultimately serve its 

intended purpose. Thus, Contestant argues it is unreasonable for MSHA to justify the 103(k) 

Order, which essentially prescribes a new ground control plan requiring bolting and meshing for 

all area south of crosscut L, when the existing, agreed-to plan already provides cap rock checks 

and balances. 

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d. In the Alternative, Contestant Argues That the Court Should Limit 

the Scope of the Section 103(k) Order 

Finally, Contestant argues that Section 105(b) of the Mine Act is a "marvel of 

Congressional clarity" that "means what it says: temporary relief is available from any 

modification or termination of any order or from any issuance of an order under § 104." 

Performance Coal Co. v. Federal Mine Safety and Health Rev. Comm'n, 642 F.3d 234, 238-39 

(D.C. Cir. 2011). Under Performance Coal Company, Contestant argues that this Court 

possesses clear delegated authority to modify the existing 103(k) Order. 

If the Commission declines to vacate the 103(k) Order in its entirety, Contestant requests 

that the Commission modify and limit the scope of the 103(k) Order. In this regard, Contestant 

argues that the Secretary presented no evidence demonstrating that the areas beyond 12AR 

present dangerous conditions sufficient to justify the imposition of a closure order that eliminates 

a significant percentage of the mine's overall production and jeopardizes the mine's long-term 

production prospects and sustainability. Thus, Contestant’s original request for temporary relief, 

in the alternative to vacating the 103(k) Order, was to amend the last two modifications of the 

103(k) Order to limit the scope of the withdrawal to the area affected by the ground fall, i.e., 

12AR, the only location where conditions were affected by the fall. In addition, Contestant 

asserts that while the fall that triggered the 103(k) Order was not related to, and was geologically 

unique from, the inactive areas where the Secretary's witnesses identified other falls at the 

hearing, Contestant does not object to maintaining those inactive areas, identified by the 

Secretary's witnesses at trial, as inactive, unless and until they are cleared by the Secretary for 

reopening. 

e. Contestant’s Emergency Motion to Modify 103(k) Order 

i.	 Nature of Alleged Emergency 

At the end of the hearing, the Court instructed the parties to "consult with your experts 

and see if you can sit down and make some revisions to this ground control plan that will permit 

you to get up and running as soon as possible" in a manner that is "as safe as possible." Tr. 345. 

Contestant states that as directed by the Court, it has been hard at work to undertake any and all 

efforts to investigate and abate any ground control issues at its underground mine, which 

effectively has been closed since November 9, 2011. To that end, Contestant asserts that 

Pattison, at considerable expense and cost, has continued to install bolts and additional ground 

support. At the same time, it has arranged for its experts West and Ge, to visit the underground 

mine on Monday, December 12-15, 2011. Contestant says that West is traveling a considerable 

distance for this work. 

As of this emergency filing, however, MSHA has refused to permit either expert to 

conduct inspection or investigation in the mine or to undertake any effort to examine, evaluate or 

test ground conditions in the mine. As set forth in Exhibit A to its Motion, i.e., e-mail 

correspondence between owner Pattison and Richetta between December 1 and 7, 2011, MSHA 

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refuses to allow Pattison’s experts to travel anywhere in the mine where the roof is not 

completely bolted and meshed. According to Contestant, MSHA is well aware that this 

effectively prohibits any real examination or evaluation of the roof. Thus, Contestant argues that 

emergency relief is needed immediately to allow these experts to conduct their work starting 

December 12, 2011. 

ii. Factual Background for Emergency Motion 

Following the hearing, per the Court's instruction to the parties, Contestant avers that it 

has attempted to work with MSHA to refine the original MSHA-approved ground control plan 

based on objective data regarding ground conditions in the mine. To that end, Contestant asked 

MSHA to modify the 103(k) Order to permit Pattison and its experts to: (1) thoroughly inspect 

all areas of the underground mine for potential rock deterioration and to identify options for 

instrumentation and monitoring sites previously inspected on December 2, 2011 by Pattison 

expert West and MSHA inspector Chris Lehman; (2) scale in each area to determine if any 

deterioration has occurred and apply shotcrete as necessary; and (3) install ground movement 

monitors in appropriate areas to develop precise data regarding the quality of the ground control 

conditions throughout the mine. In so doing, Pattison sought to gather facts and analyze the 

ground conditions throughout the mine to demonstrate which areas, if any, require additional 

ground control support above and beyond what is already required by the original plan. 

Rather than agree to the proposal, or suggest an alternative, Contestant claims that 

MSHA summarily dismissed Pattison's proposal as "research oriented," and retrenched to its 

position that the only way the mine will be safe is if the entire underground mine has "8 feet of 

bolts with mesh." See Ex. A to Motion, e-mail from Richetta to Pattison dated December 7, 

2011. Contestant claims that MSHA admitted at the hearing that ground conditions would not 

constitute an imminent danger to persons working in the mine since it lacked the evidence 

necessary to support any claim that ground conditions constituted an imminent danger. Tr. 153. 

Contestant asserts that MSHA’s correspondence attempts to recreate facts and evidences its 

refusal to allow any further dialogue or discussion about the improper 103(k) order since MSHA 

expressed its belief “that is not possible to determine the stability of the roof at the Pattision 

Mine from visual observation," but Pattison never made such claim. See Ex. A to Emergency 

Motion. 

In its response, MSHA also states that "Ground Movement Monitors are not an 

acceptable replacement for roof support in the Pattison Mine." Id. See Exhibit A. Contestant 

agrees and notes that it never made any claim to the contrary. Rather, Contestant says that its 

request is clear: it seeks to collect data and analyze data from the mine to further inform its 

evaluation and assessment of ground conditions and ground support measures. 

In addition, Contestant essentially asserts that MSHA's contention that “at present we 

believe the most appropriate support pattern is the one developed by Pattison's rock mechanics 

consultant and described in Pattison’s ground control plan, namely 8 ft[.] bolts with mesh" is 

simply false because Pattison's experts have never concluded that "the only way the roof can be 

'made safe' is to install roof support," specifically "8 ft. bolts with mesh." Contestant asserts that 

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was not MSHA's position before it issued the 103(k) Order, that is not what the original 

MSHA-approved ground control plan required, and that has never been endorsed by Pattison's 

experts. Contestant asserts that MSHA's attempt to claim otherwise is nothing more than an 

effort to support its decision to bar any activity until the entire mine is bolted and meshed. 

Contestant claims that MSHA's "bolt and mesh everything" position is based, at best, on 

an incomplete understanding of conditions in the mine, and it is abundantly clear that it will not 

revisit that decision for any reason, regardless of the facts. Worse, Contestant argues that MSHA 

is now doing everything it can to prevent Pattison from even collecting any data or information 

that could shed further light on conditions in the mine. 

iii. Emergency Motion Argument 

Contestant reasserts that the Commision may modify 103(k) orders issued by MSHA, 

citing Performance Coal Co. v. Federal Mine Safety and Health Rev. Comm'n, 642 F.3d 234, 

238-39 (D.C. Cir. 2011). Contestant argues that the Commission should modify the scope of the 

existing 103(k) Order to permit Pattison's experts to enter the underground mine (south of 

crosscut L) for the limited purpose of: (1) installing instrument monitoring technology in areas 

where previous inspections by Pattison personnel have revealed no visible signs of deterioration, 

and (2) using that technology to develop a ground control instrumentation and data collection 

program that will allow production to continue in areas of the underground mine that are safely 

supported by adequate roof control measures. Contestant argues that these actions will allow the 

parties, in an effort to protect miners, to rely upon a more objective, data-driven analysis of 

actual conditions in the mine, rather than MSHA's factually unsupported conclusions regarding 

those conditions. 

Contestant argues that modification is necessary because MSHA's position is, in essence, 

that Pattison may not enter the mine to obtain any data or information regarding the roof 

conditions. Contestant avers that MSHA's decisions to date regarding roof conditions and 

adequacy of roof support have not been supported by any objective data and MSHA is now 

working to ensure that such data will never even be collected or analyzed. 

Contestant notes that in refusing to modify the 103(k) Order to permit the collection of 

such data, MSHA’s December 7 correspondence claims that the potential value of collecting and 

analyzing such data is outweighed by the potential risk to those who would collect it, i.e., 

[“MSHA does not believe that proposed work plan justifies the exposure of individuals to the 

hazards of the unsupported roof at the Pattison Mine.”]. Contestant argues that MSHA has no 

objective evidence that would quantify that potential risk, though it has [purportedly] admitted 

that ground conditions in the mine do not pose an imminent danger to miners working there. Tr. 

153. Contestant notes that MSHA has permitted miners to enter the mine in order to install bolts 

and mesh, that bolting and meshing of the mine started several weeks ago, and that Pattison will 

continue with that work as long as MSHA allows it to continue. In these circumstances, Pattison 

asserts that it is hard to understand how the entry of Pattison's ground control experts to simply 

evaluate roof conditions and collect data puts them at risk. 

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Furthermore, Contestant argues that modification is necessary to prevent MSHA from 

bypassing the agency's limited grant of authority under Section 107 and 104, which together 

authorize operators to maintain personnel in a mine to abate an alleged imminent danger. See 30 

U.S.C. §§ 817(a); 814(c) (prohibiting the Secretary from ordering withdrawal of personnel 

"whose presence ... is necessary ... to eliminate the condition described in the order"). 

Contestant reiterates that at trial, MSHA officials [purportedly] admitted that the agency lacked 

legal authority to issue an imminent danger withdrawal order under Section 107. See, e.g., Tr. 

153. Yet, Contestant argues, MSHA's enforcement posture throughout this case indicates that 

MSHA considers Pattison's ground support throughout the underground mine to be akin to an 

imminent danger. Thus, Contestant argues that MSHA appears to be claiming authority it does 

not have under Section 103(k), which provides MSHA authority to issue control orders 

immediately following a reportable "accident," with the full knowledge that Section 103(k) does 

not expressly permit operators to reenter a mine for abatement purposes without government 

permission. 

Contestant says this action cries out for modification by the Commission. It argues that if 

the Commission sanctions MSHA's ability to reject reasonable operator requests for a 

modification of the 103(k) Order, it is sanctioning MSHA's imposition of completely, 

open-ended closure orders without the slightest bit of evidence of an imminent danger. 

Surely, argues Contestant, Congress did not intend for MSHA to borrow section 103(k) 

authority to respond to allegedly dangerous conditions that are more appropriately governed by 

section 107, and in a manner that eviscerates an important operator right under section 107. 

Contestant concedes that Congress granted MSHA authority under 103(k) to investigate and 

respond to an accident. Contestant argues, however, that section 103(k) applies only to safety 

orders in conjunction with accident recovery plans, during an accident, or in its immediate 

aftermath, when an inspector is present. See 30 U.S.C. § 813(k). 

Here, Contestant asserts, MSHA is not investigating an accident; it is merely imposing an 

abatement plan that is not founded upon analytical principles even though applicable ground 

control regulations do not provide it with authority to do so. Contestant argues that no miner 

needs recovery, no affected area of the mine needs recovery or return to normal (since the fall 

area is abandoned), and as illustrated at trial, MSHA cannot and has not produced a shred of 

credible evidence to suggest that conditions pose an imminent danger to miners in any specific 

area affected by the existing 103(k) Order. Consequently, Contestant argues that there is no 

ongoing "accident" at the Pattison Mine that requires the extreme measures MSHA has imposed 

- measures which are preventing Pattison experts from ascertaining precise insights into the 

mine's geological structure that will provide for a more objective, data-driven evaluation of 

conditions and the most appropriate ground control measures for the area affected by the section 

103(k) Order. 

In conclusion, Contestant moves the Commission to modify the existing 103(k) Order to 

permit an appropriate, expert-crafted abatement plan to take place. 

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IV. Discussion and Analysis 

A.	 The 104(a) Citation is Vacated Because The Record Evidence Indicates That 

Contestant Lacked Fair Notice That It Was Violating 30 C.F. R. § 57.3360 After 

MSHA’s Approval of Its Ground Control Plan 

Initially, I reject Contestant’s argument that analyzing roof and ventilation control planapproval case law in the coal context is irrelevant and of no value in analyzing this non-metal 

contest proceeding. Such precedent is helpful by analogy. 

I further reject any argument that Contestant’s compliance with the MSHA-approved 

ground control plan in settlement of the imminent danger enforcement action is an absolute 

defense to a citation under 30 C.F.R. § 57.3360. See Cumberland Coal. Res., LP v. Fed. Mine 

Safety & Health Review Comm'n, 515 F.3d 247, 254 (3d Cir. 2008) (compliance with an 

approved ventilation plan pursuant to 30 C.F. R. § 75.370 was not a defense to a violation of 30 

C.F.R. § 75.334(b)(1) because significant problems with the wraparound bleeder system, which 

was not designed for a longwall panel of unprecedented size, were so significant that operator 

was required to submit a revised plan after initial citation and was on notice that bleeder system 

was ineffective to satisfy protective purposes of the standard); but see Plateau Mining Corp. v. 

Fed. Mine Safety & Health Review Comm'n, 519 F.3d 1176, 1191-93 (10th Cir. 

2008)(substantial evidence did not support ALJ and split-Commission findings that operator had 

notice that bleeder system, which was in compliance with MSHA-approved ventilation plan, was 

not functioning effectively as required to establish violation of regulation’s mandatory standard 

where absence of any occurrence not anticipated by the plan indicates that there was nothing that 

should have put operator on notice that additional action, i.e., out-of-plan response, was 

necessary). 

In short, the validity of the instant citation turns on whether the evidence presented 

establishes that a reasonably prudent person familiar with the mining industry and the protective 

purposes of the ground support use standard embodied in 30 C.F.R. § 57.3360 would have 

recognized that the MSHA-approved ground control plan was ineffective prior to the instant roof 

fall on November 7, 2011. Cumberland Coal. Res., supra, 515 F.3d at 255; Canon Coal Co., 9 

FMSHRC 667, 668 (April 1987); see also Plateau Mining Corp., 519 F.3d at 1192 (quoting from 

Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)). Like ventilation, roof control is a 

dynamic process and conditions not anticipated by the ground control plan may arise that would 

alert a reasonably prudent operator that an out-of-plan response is necessary, but the absence of 

any such condition indicates that there is nothing that should have put an operator on notice that 

additional action was necessary. Plateau Mining Corp., supra, 519 F.3d at 1197. 

In Canon, the Commission vacated the citation where there had been no objective signs 

prior to the roof fall that would have alerted a reasonably prudent operator to provide additional 

support. 9 FMSHRC at 668. Similarly, in Newmont Gold, where expert David West also 

testified, the "Leaky Fault" that was the primary cause of the ground fall was subtle, variable and 

unpredictable and there was no evidence in the record to suggest that prior to the ground fall, 

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Newmont had any reason to believe that the Leaky Fault posed any threat to the integrity of the 

ground. Newmont Gold Co., 20 FMSHRC 1035, 1039 (Sept. 1998) (ALJ Cetti). 

As noted, the Secretary argues that unlike Newmont Gold, the conditions at the Pattison 

mine provided ample warning because Contestant's expert West found objective signs that 

existed prior to the roof fall that should have alerted Contestant of the need for additional roof 

support - specifically that "the strength of the cap rock has been compromised by the presence of 

a gully on the surface topography." Tr. 293. The Secretary argues that this finding substantiates 

the Secretary's position that the plan did not work and was in violation of the standard, despite 

approval of the plan and the fact that Contestant was not violating the plan. 

In addition, while the Secretary disputes West’s conclusion that the AR 12 ground fall 

was "unique to that location primarily due to the surface gully" (Tr. 296, see also Tr. 304-305), 

the Secretary argues that West acknowledged other roof falls and the possibility of roof falls 

throughout Contestant's mine, with concomitant harm to the health and safety of miners by 

testifying that he has seen specific areas of cap rock failure. Tr. 307. Further, West 

acknowledged that he would make modifications to the extant plan, including a better 

understanding of the air-slake process – the key to a lot of the roof failures – which would be 

facilitated by "some simple robust implementation." Tr. 310-311. The Secretary argues that this 

testimony is further evidence that an approved plan does not thereby become inexorably a plan 

that works and a plan that "is what a reasonably prudent person, familiar with the mining 

industry and protective purpose of the standard, would have provided in order to meet the 

protection intended by the standard." Canon, 9 FMSHRC at 668. Accordingly, the Secretary 

argues that Contestant can be in full compliance with the plan and still violate Part 57.3360, 

particularly since Contestant was well aware of the roof hazards at this mine. 

I do not find the Secretary’s arguments persuasive. Her contentions overlook the fact 

that West’s expert services were retained by Pattison after the instant roof fall. Only then did 

West discover the gully and opine that it was the main driver contributing to the roof fall based 

on his post-fall investigation. Such knowledge cannot be attributed to Pattison before the instant 

fall. This is particularly so where MSHA’s experts, including Dr. Park, examined the mine, and 

presumably should have noticed the gully, before the instant roof fall, but nevertheless approved 

Pattison’s ground control plan. 

The Secretary’s arguments also fail to account for the fact that in Newmont Gold, like 

here, there was a history of prior ground falls. The credited testimony established that Newmont 

conducted an evaluation of the circumstances that led to the ground fall situation and modified 

its mining techniques and strengthened ground support in order to assure that ground falls based 

on similar circumstances would not occur in the future. 20 FMSHRC at 1048. Pattison did the 

same thing here after the August 2011 roof falls, and MSHA approved its ground control plan. 

Thereafter, the Secretary failed to provide Pattison with any notice that it was required to engage 

in some form of ground control above and beyond that required in the plan approved a month 

earlier. 

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The record further establishes that the roof where the November 7 fall occurred looked 

good. Tr. 144. As ALJ Cetti observed in Newmont Gold: 

[T]he fact that there has been a ground fall does not mean there has 

been any violation of regulatory requirements. Underground mining is 

an inherently dangerous activity. Conditions sometimes are such that 

despite the operator's best efforts, roofs fall. It has been stated many 

times that "even good roof can fall without warning." 

20 FMSHRC at 1037-38 (quoting Consolidated Coal Co., 6 FMSHRC 34, 37 (1984)). 

Finally, District Manager Richetta candidly admitted that the citation was issued in an 

attempt to undo the imminent danger settlement or correct the ground control plan. “. . .The 

citation for 3360 is trying to undo the settlement or trying to correct the ground control plan . . .” 

Tr. 250-51. Further, Richetta admitted his unfamiliarity "with how to address a plan that's in 

existence that is inadequate. I thought the way to do it would be through a citation. I don't 

know. Maybe there is another way to do it. I think the plan needs to be addressed. I don't 

know." Tr. 238. In such circumstances, I agree with Contestant’s argument that given MSHA’s 

own uncertainty as to how to undo what it once agreed to, but now considers inadequate, 

Contestant was not given "fair notice" of the alleged violation. 

In these particular circumstances, I conclude that the Secretary failed to prove by a 

preponderance of the evidence that the roof support in place at 12AR on November 7, 2011 

differed from what a reasonably prudent person, familiar with the mining industry and the 

protective purpose of the standard, would have provided in order to meet the protection intended 

by the standard." Newmont Gold, 20 FMSHRC at 1037-38. Accordingly, the record as a whole, 

does not establish a violation of the 30 C.F.R. § 57.3360. The section 104(a) citation is vacated, 

but the same does not hold true for the section 103(k) order. 

B.	 The Section 103(k) Order was Validly Issued Because the November 7, 2011 Roof 

Was an “Accident” Within the Meaning of the Mine Act 

The record evidence establishes that an “accident” occurred within the meaning of 

section 103(k). The plain language of Section 103(d) of the Mine Act specifies that an 

unplanned roof fall, except in abandoned panels or in areas inaccessible or unsafe for 

inspections, is an accident for purposes of section 103. Emerald Coal Resources, LP, 30 

FMSHRC 122, 124 (Jan. 2008)(ALJ Zielinski). The November 7, 2011 roof fall did not occur 

in an abandoned panel or inaccessible area. In fact, the fall landed on the top of the scaling 

equipment being operated by a miner and caused extensive damage to the equipment. Tr. 144-

45; Sec. Ex. 4. Accordingly, I find that an accident occurred which satisfies the precondition for 

issuance of an order pursuant to section 103(k). Emerald Coal Resources, supra, 30 FMSHRC 

at 124. 

Alternatively, I find that the record evidence is sufficient to establish an accident 

occurred under the statutory definition of “accident” as interpreted by the Commission in 

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Aluminum Company of America, 15 FMSHRC 1821 (Sept. 1993). The term “accident” as set 

forth in Section 3(k) of the Act “includes a mine explosion, mine ignition, mine fire, or mine 

inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k). In Alcoa, 15 FMSHRC at 

1824, the Commission determined that the definition of accident in Section 3(k) was not 

exhaustive, because the word “includes” is a term of enlargement. The Commission agreed, in 

general, with the Secretary’s argument in Alcoa that “an event not specifically listed . . . falls 

within the definition of ‘accident’ if it is similar in nature or presents a similar potential for 

injury or death as a mine explosion, ignition, fire or inundation,” but concluded that whether a 

specific event is similar in nature must be determined on a case-by-case basis. 15 FMSHRC at 

1825-26. 

The 103(k) order in Alcoa was premised on a determination that a mercury contamination 

had occurred. While the Commission agreed with the Secretary that an injury or death occurring 

as a consequence of mercury exposure would constitute an “accident,” the Commission found no 

evidence of overexposure to, contact with, or injury or illness arising from the presence of 

mercury. See 15 FMSHRC at 1825. The Commission further found that “[t]he Secretary 

presented no evidence . . . that the mercury contamination . . . was similar in nature or presented 

a potential for injury similar to that of a mine explosion, ignition, fire or inundation,” i.e., 

“sudden events that pose an immediate hazard to miners and require emergency action.” Id. at 

1826. Furthermore, the Commission emphasized in Alcoa that “the Secretary’s witnesses did not 

attempt to relate the hazards associated with the conditions in the area to an event similar to a 

mine explosion, fire or inundation . . . . and while an accident need not necessarily involve a 

sudden occurrence that creates an immediate hazard, the evidence in this case fails to support the 

Secretary’s argument that this particular gradual release of a toxic chemical was similar in nature 

or presented the same potential for injury as the events set forth in the statutory definition of 

accident.” Id. at 1827. The Commission rejected the Secretary’s argument that an unplanned 

and uncontrolled release of mercury, including a gradual release that creates a long-term hazard, 

is an “accident” under the Mine Act, solely because the evidentiary record developed was 

insufficient to establish that the hazards associated with the conditions in the alumina hydrate 

production facility were similar in nature or presented the same potential for injury as a mine 

explosion, ignition, fire or inundation. 15 FMSHRC at 1827-28. 

Applying this analysis here, I find that the instant roof presented a potential for injury or 

death similar to that of a mine explosion, ignition, fire or inundation. The record establishes that 

a unplanned roof fall or more than 30 tons occurred in an unbolted area mined up to cap rock and 

a portion of the fall landed on top of the scaling equipment being operated by a miner causing 

damage to the equipment and a near potential fatality. Commission precedent establishes that 

the deaths of most underground miners are caused by roof falls. See e.g., Big Ridge, Inc., Docket 

No. 2009-532, Slip Op. at 19 (Mar. 1, 2011)(Judge Miller) (reaffirming Commission precedent 

in Consolidation Coal Co., 6 FMSHRC 34, 37 n. 4 (Jan. 1984) that roof falls continue to be 

recognized by Congress, the Secretary of Labor, the Commission and the mining industry as one 

of the most serious hazards in mining and remain the leading cause of death in underground 

mines). In addition, unlike the evidentiary record in Alcoa, the Secretary’s expert and other 

witnesses specifically established that the hazards associated with unsupported roof conditions 

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mined to cap rock presented the same potential for injury or death, much like a mine explosion, 

ignition, fire or inundation. Tr. 93, 100-01, 161, 168-69, 251, 253, 257. 

Finally, given the central role that 103(k) control orders play in MSHA’s statutory 

mission of advancing miner safety, Clinchfield Coal Co., 8 FMSHRC 1310, 1311 n. 2 (Sept. 

1986), I conclude that the term “accident” must be broadly construed to effectuate the Act’s 

“primary purpose” of protecting miners. See Sec’y of Labor o/b/o Bushnell v. Cannelton 

Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989); 30 U.S.C. § 801(a); Donovan o/b/o 

Anderson v. Stafford Contruction Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (Mine Act must be 

broadly interpreted to further the congressional aim of making mines safe places to work.); 

Sec’y of Labor v. FMSHRC (Jim Walter Resources), 111 F.3d 913, 920 (D.C. Cir. 1997); Walker 

Stone Co., Inc. v. Sec’y of Labor, 156 F.3d 1076, 1082 (10th Cir. 1998). Furthermore, to the 

extent that the statute is at all ambiguous, the Secretary’s interpretation of the term “accident” 

must be accepted as long as it is reasonable. Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842-43 (1984); Secretary of Labor v. Excel Mining, LLC, 334 F.3d 

1, 5 (D.C. Cir. 2003). Finally, the Secretary’s litigating position before the Commission is as 

much an exercise of delegated lawmaking powers as her promulgation of a health and safety 

standard, and deserves deference. Excel Mining, 334 F.3d at 5. 

In these circumstances, I find that the Secretary has demonstrated by a preponderance of 

the evidence that an “accident” has occurred under the Mine Act and that issuance of the Section 

103(k) Order was appropriate.19 

C. The Scope of the 103(k) Order Was Not An Abuse of Agency Discretion 

Section 103(k) provides: 

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

authorized representative of the Secretary, when present, may issue 

19 Although not necessary to my finding of an “accident” above, I note my factual 

finding, supra at p. 9, that the November 7 ground fall did impede passage and occurred in an 

active working area as the scaler was actively performing his assigned task. I further have noted 

that the parties’ stipulations Nos. 7, 9 and 15 and are not broad enough to preclude this finding, 

Although MSHA inspector Jim Hines, during his November 7 inspection, told the mine operator 

that the ground fall was not an immediately reportable event under 30 CFR Part 50, see Stip. 15, 

I note that MSHA has defined “accident” in 30 C.F.R. 2(h)(8) disjunctively as “. . . ; or, an 

unplanned roof fall or rib fall in active workings that . . . impedes passage.” 

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such orders as he deems appropriate to insure the safety of any person 

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

the approval of such representative, in consultation with appropriate 

State representatives, when feasible, of any plan to recover any person 

in such mine or to recover the coal or other mine or return affected 

areas of such mine to normal. 

The initial question presented is the appropriate standard of review of a 103(k) Order. 

For the reasons set forth in my decision in Pinnacle Mining Co., No. WEVA 2011-1758-R, 2011 

WL 5894153, * 25-26 (Sept. 2011), I reject the operator’s request to apply a reasonableness 

standard. Instead, I apply an arbitrary and capricious standard of review. As more fully 

explained in Pinnacle Mining, supra, this standard appropriately respects the Secretary's 

judgment while allowing review for abuse of discretion, errors of law, and review of the record 

under the substantial evidence test. Cf. Emerald Coal Resources LP, 29 FMSHRC at 966. 

Moreover, under the Administrative Procedure Act, agency action is set aside when "arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. § 706. 

In the context of this contest proceeding, this arbitrary and capricious standard involves a 

review of the record to determine whether the Secretary properly exercised her discretion and 

judgment in issuing the 103(k) order to encompass those areas underground that are south of 

crosscut L and not bolted or meshed, and in rejecting the Contestant’s December 6 request to 

modify the Order to permit its experts to examine and evaluate conditions, install monitoring 

equipment and conduct tests, which is further discussed in section IV, E, below. Tr. 161, 236; 

Sec. Ex. 4; see also Contestant’s Emergency Motion to Modify 103(k) Order. While the scope 

of review under the "arbitrary and capricious" standard is narrow, the agency must examine the 

relevant data and articulate a satisfactory explanation for its action, including a rational 

connection between the facts found and the choices made. Motor Vehicle Mfrs. Ass'n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citations omitted). Normally, 

agency action is considered arbitrary and capricious if the agency has relied on factors which 

Congress did not intend that it consider; entirely failed to consider an important aspect of the 

problem; offered an explanation for its decision that runs counter to the evidence before it; or has 

taken a position so implausible that it cannot be ascribed to a difference in view or the product of 

agency expertise. Id. (italics added); see also Energy West Mining Co., 18 FMSHRC 565, 569 

(Apr. 1996) ("abuse of discretion" has been found when "there is no evidence to support the 

decision or if the decision is based on an improper understanding of the law") (citations omitted). 

As the Secretary points out, "[a] party seeking to have a court declare an agency action to 

be arbitrary and capricious carries 'a heavy burden indeed.' " Wisconsin Valley Improvement v. 

FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quoting Transmission Access Policy Study Group v. 

FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). That party must show that the agency has failed to 

consider relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 

416 (1971), has made a clear error in judgment, see id., or has failed to "articulate a satisfactory 

explanation for its action including a 'rational connection between the facts found and the choice 

made,' " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Thus, 

the arbitrary-and-capricious standard of review is "highly deferential" and "presumes the validity 

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of agency action." City of Portland, Oregon v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) 

(citations and internal quotation marks omitted). 

This standard has not been met here. The Ninth Circuit has described MSHA’s authority 

to manage accidents pursuant to Section 103(k) as one of “plenary power” and “complete 

control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983) (“[s]ection 

103(k) gives MSHA plenary power to make post-accident orders for the protection and safety of 

all persons.”) Contrary to Contestant’s argument on post-hearing brief at 19, Section 103(k) 

does not restrict imposition of a control order to “affected areas” of the mine, i.e., 12AR, the 

location of the instant roof fall. As the undersigned suggested at the hearing, such an 

interpretation does not account for the language in section 103(k) that authorizes MSHA, after an 

accident, as found above, to issue such orders as it “deems appropriate to insure the safety of any 

person in the coal or other mine,” and the operator shall obtain the approval of MSHA, when 

feasible, to “. . . recover the coal or other mine or return affected areas of such mine to normal.” 

Tr. 27-31. The italicized language is broad enough to encompass the whole mine, including 

unbolted and unmeshed areas south of crosscut L, and certainly extends beyond the affected area 

of 12AR. 

Further, MSHA’s approval or disapproval of any plan to recover the mine is 

discretionary. As the D.C. Circuit has stated, “the Secretary must independently exercise [her] 

judgment with respect to the content of . . . plans in connection with [her] final approval of the 

plan.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th 

Cong., 25 (1977), reprinted in Senate Subcom. on Labor, Com. on Human Res., 95th Cong., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978). 

Moreover, analogizing to Commission precedent in the ERP context, “[u]ltimately, the plan 

approval process involves an element of judgment on the Secretary’s part.” Emerald Coal 

Resources LP, 29 FMSHRC at 965, citing Peabody Coal Co., 18 FMSHRC 686, 692 (May 

1996) (“Peabody II”). “[A]bsent bad faith or arbitrary action, the Secretary retains the discretion 

to insist upon the inclusion of specific provisions as a condition of the plan’s approval.” Id., 

citing C.W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 

(June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or capricious 

where MSHA’s conduct throughout the process was reasonable). Here, after the November 7, 

2011 roof fall, MSHA has taken the position that it is unwilling to allow any work south of 

crosscut L that is not performed beneath a bolted and screened roof. Tr. 251-52; see also Ex. A 

to Emergency Motion at 1. 

Contestant claims that in issuing the 103(k) Order, MSHA abused its discretion by failing 

to analyze relevant data, failing to consider the gully, failing to rely on Agency expertise, failing 

to limit the order to affected areas, and obviating the approved ground control plan. 

Alternatively, Contestant asks the Court amend the last two modifications of the 103(k) Order to 

limit the scope of the withdrawal to the area affected by the ground fall, i.e., 12AR. And, as this 

decision was readied for issuance, Contestant requests in its emergency motion that the Court 

order modification of the 103(k) order to permit its experts to examine and evaluate conditions, 

install monitoring equipment and conduct tests. 

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Based on the record evidence, the court is not persuaded by Contestant’s motions and 

evidence that the Secretary abused her discretion in issuing the 103(k) order to encompass those 

areas underground that are south of crosscut L and not bolted or meshed, or in refusing to modify 

the 103(k) order to accommodate Contestant’s post-hearing December 6, 2011 proposed work 

plan until such bolting and meshing occurs. The scope of the 103(k) order was based on the fact 

that the roof fell where mined to cap rock. Tr. 140, 159. In approving the ground control plan, 

MSHA reluctantly accepted Contestant's representations that roof mined to cap rock needed to 

be scaled, but needed no additional support, unless there were brows, potholes, or cap rock 

thickness of less than four feet. Tr. 98-100, 250; Sec. Ex. 5 at 2. None of those conditions were 

present where the roof fell on November 7 in what appeared to be good cap rock, as scaling 

occurred. Tr. 144. Given the instant roof fall and the mine’s history of recent roof falls, 

including falls from roof mined to cap rock without brows, potholes, or cap rock less than four 

feet thick, MSHA made a reasoned judgment to reverse course from the approved ground control 

plan and consider bolting and meshing to be the best method to insure miner safety in areas 

south of crosscut L going forward. The court is not in a position to second guess that expert 

agency judgment, nor substitute its judgment for that of MSHA. See Twentymile Coal, 30 

FMSHRC at 754-55, quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 

29, 43 (1983). 

As the Supreme Court has recognized, an agency may change a past decision so long as 

there are reasons for the change and those reasons are rationally related to the agency's new 

decision. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 29, 42-43 

(1983).20 Put differently, the standard for review of agency action requires deference to the 

reasonable decision of the agency in light of its expertise in the field. Id. Thus, the issue is not 

whether other more limited areas could have been encompassed by the 103(k) order, but whether 

the decision to extend the order to unbolted and unmeshed areas south of crosscut L was a 

rational one. See id. at 43. Based on the record before me, I conclude that MSHA’s decision to 

reverse course was rationally related to evidence surrounding the November 7 roof fall and 

Contestant has failed to demonstrate a likelihood of success to show otherwise. 

In this regard, since the fall occurred in roof that Contestant had represented was safest, 

MSHA rationally concluded that the safety of other roof in the mine south of crosscut L that was 

not bolted and meshed, some of which already had, or was scheduled to have, ground support, 

was dangerous. Tr. 236-37. Accordingly, an experienced MSHA inspector who was very 

20“[A]n administrative agency is not disqualified from changing its mind; and when it 

does, the courts still sit in review of the administrative decision and should not approach the 

statutory construction issue de novo and without regard to the administrative understanding of 

the statutes.” See, e.g., MSHA v. Tilden Mining Co., L.C., 33 FMSHRC 876, 880 (April 2011) 

(ALJ Paez), citing NLRB v. Local Union No. 103, Iron Workers, 434 U.S. 335, 351 (1978). 

Rather, the agency's interpretation must be given controlling weight unless it is plainly erroneous 

or inconsistent with the [law].” Id., citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 

(1994). 

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familiar with the mine (Tr. 133), issued the section 103(k) order prohibiting all activity in areas 

south of crosscut L that are not bolted and meshed until an MSHA examination or investigation 

has determined that it is safe to resume mining operations in the affected area. Given the 

testimony, photographs, and/or documentary evidence regarding the November 7, 2011 roof fall, 

the August 2011 imminent danger order for roof fall, and the history of other recent roof falls in 

areas mined to cap rock, the Secretary rationally has demonstrated that Contestant’s ground 

control plan is no longer deemed sufficient to protect the safety of any person working in 

underground areas south of crosscut L that are not bolted or meshed. 

Even Contestant’s expert West eventually conceded that the ground control plan should 

be revised to provide greater protection from failures resulting from moisture in the cap rock, i.e. 

air-slaking. In this regard, West testified that some of the roof fall failures could have resulted 

from moisture in the atmosphere moving into the cap rock, and that shotcreting should be 

bolstered in the ground control plan. Tr. 313, 316. 

Based on the evidence of other roof falls in cap rock in other areas of the mine, I do not 

place much weight on West’s testimony that the cap rock failure in the area of the instant roof 

fall (12 AR) was unique and likely resulted from the presence of the gully on the surface 

topography, some 60-70 feet away from the compromised area. West failed to testify with 

specificity about how he concluded that water from the gully reached the area of the November 7 

fall and proximately caused the collapse. On the other hand, substantial record evidence, 

including West’s own testimony, demonstrates that there is a moisture problem in the 

underground workings that extends beyond 12 AR and would cause cap rock in unbolted and 

unmeshed areas to become friable and subject to “air slaking,” thereby creating an ongoing 

hazard of additional roof falls, the gully theory notwithstanding. Thus, West testified that while 

cap rock in sandstone is initially strong, that strength deteriorates and it becomes “extremely 

friable” once water is introduced or "any sort of moisture" is absorbed through the air, such as 

through the ventilation system within a mine. Tr. 284-86. West further testified that owner Kyle 

Pattison told him that the mine had an underground grain storage area, and if the moisture 

content of the grain reached a certain level, it would ferment and more moisture would be given 

off. Based on his conversation with Pattison, West testified that there were ground problems in 

the grain storage area associated with humidity brought in by the grain. Tr. 329. 

Even Contestant admits on post hearing brief at 29, that while cap rock in sandstone is 

initially strong, that strength deteriorates once water or "any sort of moisture" is introduced 

through either the surface of the stone, or when moisture is absorbed through the air, citing 

West’s testimony at Tr. 286, but omitting reference to mine ventilation system. Furthermore, 

MSHA’s expert, Dr. Mark, confirmed on cross, that the cap rock does degrade over time through 

effective ventilation and humidity, necessitating frequent scaling to take down loose rock, 

however, scaling was an inappropriate engineering technique to eliminate the hazard of 

unpredictable rock falls at this mine. Tr. 121. Dr. Mark further confirmed some relationship 

between the stability of the cap rock, the potential for ground fall, and humidity. Tr. 123. 

In these circumstances, I find that MSHA’s failure to attribute significance to the gully 

does not make the scope of the order arbitrary and capricious. In fact, that Dr. Parks was aware 

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of the gully, when he replied on cross, “The little drainage creak that comes out and around 

there? I can’t say that I did make specific notice of that.” Tr. 119. Indeed, Dr. Mark knew that 

the gully on the surface was about 80 feet from the location of the November 7 roof fall. Tr. 

120. Based on this testimony, I infer that Dr. Parks discounted any significance of the gully 

when he examined the mine in August. Rather, he credibly testified on cross that most 

professionals in the ground control field cannot pinpoint the cause of a ground fall, only that 

there are a combination of factors that either increase or decrease the probability of a roof fall 

occurring. Tr. 122. 

Even though Dr. Marks did not examine the mine after the November 7 roof fall, I was 

persuaded by his expert opinion that it was proper for MSHA to focus in the 103(k) context on 

the ability to estimate what the probability of a ground failure is going forward, which is 

generally more reliable than a particular mechanism triggering failure. Tr. 122. In fact, on 

redirect, Dr. Mark confirmed that the issue is not whether MSHA understands all the 

mechanisms that took place in this particular fall, but whether it can identify specific features 

that will allow MSHA to identify other areas that are at higher risk. In this regard, Dr. Mark’s 

recounted that MSHA knew that a 4-foot thick cap rock section fell in and could have caused a 

fatality and there is no evidence, that the properties of that cap rock are different from the cap 

rock elsewhere in the mine, but such cap rock is being relied upon to provide sufficient 

protection. Tr. 126. He testified, contrary to West, that it is pure speculation to suggest that 

because the roof fall happens be near some surface weakening factors in the ground, an overall 

stable structure can be created. Tr. 126-27. I find this expert testimony persuasive, particularly 

since West’s contrary testimony was weak and speculative on proximate cause, i.e., “the 

presence of the gully on the topography which might allow the preferential ingress of water and 

moisture and cause an air-slake problem” (tr. 294), and his later testimony imprecise testimony 

on probing from the court that “[t]his [gully] has got something to do with it, the failure 

mechanism that we’re seeing.” Tr. 323. 

I find expert West’s gully theory unconvincing and too akin to the “Leaky Fault” theory 

in Newmont Gold, in which West also testified as an expert under questioning from the same law 

firm. The relationship between the Leaky Fault” theory that prevailed in Newmont Gold and the 

leaky gully theory in Pattison Mine, where West never established that the gully actually leaked 

into the affected area of the November 7 fall, is just too convenient for this judge to accept on the 

existing record. I find West’s testimony contrived and I give more weight to Dr. Park’s expert 

testimony that MSHA should consider the probability of a fatal roof fall given the instant roof 

fall and the history of prior roof falls in areas mined to cap rock, and to the opinions of MSHA’s 

experienced inspector Hines and District Manager Richetta, whose testimony established that the 

ground control plan’s reliance on cap rock did not work and was unsafe. Thus, based on the 

current roof fall and roof fall history in areas mined to cap rock, I conclude that MSHA was 

within its broad authority under section 103(k) to determine, contrary to Contestant’s expert, that 

the ground control plan’s reliance on the strength of the cap rock was no longer sound. 

I further find Contestant’s reliance on Clintwood Elkhorn Mining Company, 32 

FMSHRC 1880 (Dec. 2010) (ALJ Gill) to be misplaced as that case is readily distinguishable. 

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There, a run-away truck jumped a berm and fell 110-150 feet when the brakes failed. The driver 

was not injured. In light of the absence of injury, the judge found no “accident” that triggered 

section 103(k). The judge also found that MSHA failed to prove that the truck was overloaded 

and that overloading was either a cause or contributing factor in the roll-over, as MSHA alleged. 

He further found that MSHA had no authority to regulate truck load weight limit and abused its 

discretion and acted arbitrarily when it conditioned the reopening of the prep plant on the use of 

data to regulate truck load weight. In addition, the judge found that the evidence of brake failure 

that MSHA refused to consider was “clear and reliable.” 

Here, by contrast, there was an “accident” triggering section 103(k), substantial evidence 

supports MSHA’s determination that the ground control plan’s reliance on unsupported cap rock 

did not work and was unsafe, and the evidence of the gully that MSHA apparently discounted 

was not clear and reliable, nor relied upon by Contestant prior to the contrived testimony of its 

expert on the issue at the hearing. 

In sum, MSHA considered or discounted relevant data and articulated a satisfactory 

explanation for the scope of the 103(k), including a rational connection between the facts found 

and the choice made. I conclude that the scope of the 103(k) order was not arbitrary and 

capricious. 

D. The Commission Has No Authority to Modify MSHA’s 103(k) Order 

Alternatively, Contestant asks the Court to amend the last two modifications of the 

103(k) Order to limit the scope of the withdrawal to the area affected by the ground fall, i.e., 

12AR, i.e., the only location where conditions were affected by the fall. Furthermore, as this 

decision was readied for issuance, Contestant requested in its emergency motion that the Court 

order modification of the 103(k) order to permit its experts to examine and evaluate conditions, 

install monitoring equipment and conduct tests. 

Contestant cites no authority for the proposition that the Commission can modify a 

103(k) Order. I find there is no such authority. A section 103(k) order is an enforcement 

action, not an adjudicatory action delegated to the Commission. Given the distinct enforcement 

and adjudicatory authority delegated to the Secretary and the Commission, respectively, neither 

the Commission nor its judges are authorized representatives of the Secretary under Section 

103(k), and just as they do not have legal authority to charge an a operator with violations of the 

Mine Act by modifying a citation, I find that they likewise do not have the legal authority to 

modify a 103(k) enforcement order. Cf. Conshur Mining, LLC, Docket Nos. KENT 2008-562 

and KENT-2008-782, slip op. at 10 (Nov. 28, 2011) (ALJ Feldman), citing Consolidation Coal, 

20 FMSHRC 1293, 1298 (De. 1998), quoting Mettiki Coal Corp., 13 FMSHRC 760, 764 (May 

1991). 

Accordingly, the 103(k) order must either be vacated, or affirmed, as written and 

modified by MSHA. I have affirmed the scope of the 103(k) order, as modified by MSHA. 

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E.	 Contestant’s Motion for Temporary Relief under 105(b)(2) and Emergency Motion 

To Modify 103(k) Order Are Denied 

The Commission does have authority under section 105(b)(2) to grant temporary relief 

from any modification or termination of any order, including a section 103(k) order, or from any 

order under section 104. See Performance Coal Co. v. Fed. Mine Safety & Health Review 

Comm'n, 642 F.3d 234, 239 (D.C. Cir. 2011). Thus, while the Commission can grant temporary 

relief under Section 105(b)(2) of the Act from the modification or termination of a Section 

103(k) order, it cannot grant temporary relief from the issuance of a Section 103(k) order, which 

is the relief initially sought by Contestant in this case. See my November 30, 2011 Order 

denying Contestant’s motion for decision without briefing, and denying Contestant’s motion for 

certification of my interlocutory ruling. 

In its eleventh-hour Emergency Motion, Contestant again argues that the Commission 

should modify the scope of the existing 103(k) Order to permit Pattison's experts to enter the 

underground mine (south of crosscut L) for the limited purpose of: (1) installing instrument 

monitoring technology in areas where previous inspections by Pattison personnel have revealed 

no visible signs of deterioration, and (2) using that technology to develop a ground control 

instrumentation and data collection program that will allow production to continue in areas of the 

underground mine that are safely supported by adequate roof control measures. Essentially, this 

Motion again improperly seeks relief to modify the 103(k) Order, which the Commission is 

without authority to do. It does not seek temporary relief from modification or termination of the 

103(k) order. 

Moreover, even if I were to treat Contestant’s Emergency Motion to Modify the 103(k) 

Order as a request for temporary relief from MSHA’s failure to grant the requested modification 

on December 7, 2011, I find that Contestant’s Emergency Motion does not satisfy the 

prerequisites for temporary relief under sections 105(b)(2)(A)-(C), as no hearing has been held in 

which all parties were given an opportunity to be heard on that issue, Contestant has failed to 

show a substantial likelihood that the findings of the Commission will be favorable to the 

Contestant based on the analysis herein, and Contestant has failed to show that such relief will 

not adversely affect the health and safety of miners. Rather, the Motion and its attached Exhibit 

A shows that MSHA weighed the risks and concluded that the proposed work plan does not 

justify the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine. 

See Emergency Motion at Ex. A, p. 1. 

In these circumstances, I cannot conclude that MSHA’s failure to modify the 103(k) 

Order as requested by Contestant on December 6, 2001 was an abuse of discretion. MSHA 

informed Contestant that it was not possible to determine the stability of the roof at the Pattison 

Mine from visual observations. MSHA further determined, as experience has shown, that even 

roof that has been freshly scaled may suddenly collapse without warning, and MSHA reiterated 

its conclusions at the hearing that in its expert view, the only way that the roof can be “made 

safe” is to install roof support. While MSHA expressed a willingness to discuss alternative 

support designs for the future, at present, MSHA opined that the most appropriate support 

pattern is 8 ft. bolts with mesh. As MSHA represented, this bolt length is set forth in the ground 

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control plan. See Sec. Ex. 5 at p. 3, C. 4. In any event, even if Pattison’s rock mechanics 

consultant never endorsed this approach, such argument does not undercut MSHA’s expert view 

under its broad 103(k) authority, that such approach is needed going forward. 

MSHA further asserted a reasonable belief that the proposed activities, as described, were 

“research oriented, ” as two PhD students were to accompany the experts. See Emergency 

Motion at Ex. A, p. 3, December 2 e-mail from Pattison to Richetta. In addition, MSHA 

informed Pattison that Ground Movement Monitors are not an acceptable replacement for roof 

support in the Pattison Mine, and for such monitors to have any validity as warning devices, it is 

necessary to first collect data on the magnitudes and rates of roof movement that indicate 

impending collapse. MSHA opined that enough data must be collected so that the conclusions 

are statistically valid, and that no such data has been collected at Pattison to its knowledge, or 

from any other sand mine. Since the only possible purpose of the proposed Univ. Missouri work 

is to collect such data, MSHA concluded that it must be considered as research. Similarly, 

MSHA concluded that while studies of the mine design and ventilation issues are desirable, they 

do not address the immediate need for roof support at the mine. 

In sum, MSHA rationally expressed its belief that the proposed work plan did not justify 

the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine. See 

Emergency Motion at Ex. A, p. 1. Based on this record, I cannot conclude that MSHA’s failure 

to modify the Order was an abuse of discretion. 

ORDER 

Based on the foregoing findings of fact and conclusions, Citation No. 8659952 is 

VACATED. Section 103(k) Order No. 8659953, as written and modified, is AFFIRMED. 

Contestant’s motion to dismiss, or for temporary relief under 105(b)(2) is DENIED. 

Contestant’s Emergency Motion to Modify 103(k) Order is DENIED, and to the extent it can be 

viewed as a request for temporary relief under section 105(b)(2) from MSHA’s failure to grant 

the requested modification on December 7, 2011, it is also DENIED. 

There is no interlocutory ruling to certify under Commission Rule 76. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

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Distribution: (Electronic & Regular Mail) 

Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing 

Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108 

Henry Chajet, Esq., Patton Boggs LLP, 2550 M. St. NW, Washington DC 20037 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

December 19, 2011 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

 :

 :

CIVIL PENALTY PROCEEDING 

ADMINISTRATION (MSHA), 

Petitioner 

:

 :

Docket No. SE 2011-242-M 

A.C. No. 08-00395-000240588 

:

v. :

STANDARD SAND AND SILICA 

:

 :

Mine: Lake Wales Dry Plant 

Mine ID: 08-00395 

CO., 

Respondent

 : 

DECISION AND ORDER 

Appearances: Benjamin A. Stark, Esq., U.S. Department of Labor, Office of the 

Solicitor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, Georgia for 

Petitioner 

Nichelle Young, Esq., Law Office of Adele L. Abrams, P.C., 4740 

Corridor Place. Suite D, Beltsville, Maryland for Respondent 

Before: Judge McCarthy 

This case is before me upon a petition for civil penalty filed by the Secretary of Labor 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 

(the “Mine Act”). At issue, is a citation issued by the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) under Section 104(a) of the Act alleging a violation of 30 

C.F.R. §50.10, which provides: 

30 C.F.R. § 50.10: The operator shall immediately contact MSHA at 

once without delay and within 15 minutes at the toll free number, 1-

800-746-1553, once the operator knows or show know that an accident 

has occurred involving: 

(a) A death of an individual at the mine; 

(b) An injury of an individual at the mine which has a 

reasonable potential to cause death; 

(c) An entrapment of an individual at the mine which has a 

reasonable potential to cause death; 

(d) any other accident. 

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The parties filed cross-motions for summary decision and the following joint stipulation 

of facts: 

1. At all times relevant to this matter, Respondent Standard Sand & Silica Co. 

(“Standard Sand”) was the owner and operator of the Lake Wales Dry Plant (Mine ID# 08-

00395) near Davenport, Florida in Polk County (the “Mine”). 

2. Standard Sand is engaged in mining operations in the United States, and its mining 

operations affect interstate commerce. 

3. Standard Sand is subject to the jurisdiction of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §§ 801-965 (the “Mine Act”). 

4. The Mine is a “mine” as that term is defined in § 3(h) of the Mine Act, 30 U.S.C. § 

802(h). 

5. The Mine is a surface metal/nonmetal mine. 

6. The Mine is a milling operation which dries, screens and bags mined sand. 

7. The Administrative Law Judge of the Federal Mine Safety and Health Review 

Commission has subject matter and personal jurisdiction over the dispute in this case. 

8. L. Baylis Carnes owns Standard Sand. 

9. Robert Lee Works was an employee of Standard Sand. 

10. On May 20, 2010, at approximately 4:45 a.m., Mr. Works suffered a fatal heart attach 

while working at the Mine. 

11. As of May 20, 2010, Mr. Works was 51 years old and had worked for Standard Sand 

approximately 19 years as a plant laborer. 

12. On May 20, 2010, Mr. Works began his shift at the Mine at 12:00 a.m. 

13. That night, Mr. Works was operating a manual sand bagging machine with help from 

two other employees of Standard Sand: Scott Grimes and Gilbert Gutierrez. 

14. Mr. Works was operating the bagging machine while Mr. Grimes and Mr. Gutierrez 

were stacking filled bags of sand onto pallets. 

15. When tanker trucks began to arrive at the Mine, Mr. Grimes and Mr. Gutierrez left to 

load the trucks with bags of sand. Mr. Works remained at the area near the bagging table. 

16. At approximately 4:45 a.m., Mr. Gutierrez returned to the bagging table area and saw 

Mr. Works lying on the ground. 

17. Mr. Gutierrez tried to rouse Mr. Works but could not get a response. 

18. Mr. Gutierrez ran to get a face shield from the first-aid kit. 

19. Mr. Grimes then returned to the bagging table area from the truck loading platform 

and saw Mr. Works on the ground. 

20. Mr. Gutierrez performed cardiopulmonary resuscitation (“CPR”) on Mr. Works. 

21. Mr. Grimes called 911 while Mr. Gutierrez was performing CPR on Mr. Works. 

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22. After calling 911, Mr. Grimes called the plant manager, Weldon Till. 

23. Mr. Gutierrez continued to perform CPR on Mr. Works until an ambulance arrived at 

approximately 4:55 a.m. on May 20, 2011. 

24. Upon the ambulance’s arrival, emergency medical technicians (“EMT’s”) took over 

CPR from Standard’s employees. 

25. A sheriff’s department deputy arrived approximately four minutes later. 

26. The EMT’s performed CPR on Mr. Works at the plant for approximately 30 to 35 

minutes before he was loaded into the ambulance. 

27. The EMT’s hooked Mr. Works up to a defibrillator. 

28. Mr. Till arrived while the EMT’s were performing CPR. 

29. The ambulance left the mine at approximately 5:40 a.m. 

30. According to the autopsy report, Mr. Works was pronounced dead at 6:06 a.m. on 

May 20, 2010. 

31. The autopsy report found that Mr. Works suffered from atherosclerotic and 

hypertension heart disease, hepatomegaly, nephrosclerosis and pulmonary emphysema. 

32. The autopsy report concluded that Mr. Works died as a result of atherosclerotic heart 

disease and that the manner of his death was “natural.” 

33. Standard Sand’s Safety Director, Gordan Broadhead, called the Mine Safety and 

Health Administration (“MSHA”) to report Mr. Works’ death by heart attack at 7:12 a.m. 

34. In response to this report, MSHA dispatched Inspector Robert Peters to investigate 

the incident. 

35. In accordance with his authority under the Mine Act, Inspector Peters issued Citation 

6599395, charging Standard Sand with a violation of 30 C.F.R. § 50.10(b) for failure to report to 

MSHA within 15 minutes an accident involving an injury at a mine that has reasonable potential 

to cause death. 

36. Standard Sand’s history of violations indicates 5 assessed violations at the Mine over 

4 inspection days during the 15-month period prior to May 20, 2010, the date the citation was 

issued. Standard Sand’s history at the Mine also indicates no prior violations of 30 C.F.R. § 

50.10(b) during the same 15-month period. 

37. Standard Sand’s Quarterly Mine Tonnage or Hours Worked Report reflects 33,845 

mine hours worked at the Mine in calendar year 2009. The same report reflects 86,599 total 

hours worked at all of Standard Sand’s mines in calendar year 2009. 

38. Standard Sand does not contend that it would be unable to continue business by 

payment of the assessed penalty in this case. 

39. Because the violation at issue is a reporting violation, MSHA rated the gravity of the 

violations as follows: (a) probability of “no likelihood,” and (b) severity of “no lost workdays.” 

The citation is not rated as “significant and substantial.” 

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40. Standard Sand demonstrated good faith in achieving rapid compliance after 

notification of the alleged violation. 

41. MSHA rated the negligence of the violation as “high.” 

42. On May 20, 2010 Standard Sand was aware of the requirement in 30 C.F.R. § 50.10 

to report accidents involving injuries at a mine that have a reasonable potential to cause death to 

MSHA at once without delay and within 15 minutes. 

43. MSHA specially assessed a civil money penalty of $5,000, which is the minimum 

penally the Secretary may assess under § 110(a)(2) of the Mine Act, 30 C.F.R. § 820(a)(2), for 

failure to timely report a death at a mine or an injury at a mine that has a reasonable potential to 

cause death. 

Brief Summary of the Parties’ Arguments 

A. Secretary of Labor 

Petitioner argues that the stipulated facts establish that the Respondent failed to alert 

MSHA about an accident - an injury of an individual at the mine which has a reasonable 

potential to cause death - until at least an hour and 32 minutes had lapsed. This was 77 minutes 

past the deadline prescribed in the regulation. Therefore, the Secretary argues that the citation 

should be affirmed and the proposed penalty of $5,000.00 is the minimum penalty required by 

Congress for such a violation pursuant to the provisions of the Mine Act, 30 U.S.C. § 820(a)(2). 

B. Standard Sand & Silica Co. 

Respondent argues that it did not violate 30 C.F.R. § 50.10 because Mr. Works’ heart 

attack was not an injury, but rather the result of a non-occupational illness from natural causes 

and not any work- related act. Consequently, Respondent argues that there was no “accident” 

within the meaning of 30 C.F.R. § 50.10, and thus no immediate reporting was required. 

Discussion and Analysis 

The Commission’s rules provide that a “motion for summary decision shall be granted 

only if the entire record, including pleadings, depositions, answers to interrogatories, admissions, 

and affidavits show that: (1) there is no genuine issue as to any material fact; and (2) the moving 

party is entitled to summary decision as a matter of law.” 29 C.F.R. §2700.67(b). Based on the 

parties’ joint stipulation and cross-motions, I find that there is no genuine issue of material fact 

presented and the stipulated facts are sufficient to render a decision on the legal issues raised in 

the parties’ cross motions for summary judgment. 

Although prior ALJ decisions are not controlling, I find that Judge Augustine’s 

discussion in E.S. Stone & Structure, 33 FMSHRC 515 (Jan. 2011) (ALJ Augustine), which 

involved very similar facts, is particularly instructive and persuasive here. In that case, based 

primarily on undisputed facts that respondent’s employees, in the presence of a supervisor, 

began performing CPR at 11:08 a.m. on a miner who had suffered a heart attack on the job; the 

fact that the heart attack victim was pronounced dead by the coroner at 12:05 p.m. that 

afternoon; and the fact that respondent made its first attempt to contact MSHA at 12:45 p.m., the 

judge found that respondent failed to comply with the requirements of 30 C.F.R. §50.10. In 

addressing those requirements, Judge Augustine noted the following: 

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The Miner Act imposed a 15 minute time limit for reporting fatalities 

and serious accidents. 30 U.S.C. § 813(j). As a result, in March of 

2006, MSHA issued an Emergency Temporary Standard (“ETS”) 

which modified the language 30 C.F.R. § 50.10 where operators were 

previously required to “immediately” report fatalities and accidents, 

by imposing a 15 minute time limitation. 71 F.R. 12260. In the 

preamble to the ETS, MSHA stated that the “ETS does not change the 

basic interpretation of 30 C.F.R. § 50.10. By the terms of the 

provision, an operator is required to notify MSHA only after 

determining whether an “accident” as defined in existing paragraph 

50.2(h) has occurred. This affords operators a reasonable opportunity 

to investigate an event prior to notifying MSHA. That is, mine 

operators may make reasonable investigative efforts to expeditiously 

reach a determination.” Id. When the Final Rule on the amendment to 

this regulation (and others) was promulgated in December 2006, 

Section 50.10 was further modified and MSHA’s preamble language 

explaining that the amendments to 50.10 still allow a “reasonable 

opportunity to investigate an event prior to notifying MSHA” was 

removed. The preamble also clarifies, in a manner consistent with 

Commission case law, that incidents requiring cardio-pulmonary 

resuscitation (CPR) constitute “injuries which have a reasonable 

potential to cause death.” 71 F.R. 71434. See Cougar Coal, 25 

FMSHRC 513 (September 5, 2003)(italics added). 

33 FMSHRC at 519. 

Based on the stipulated facts, Judge Augustine concluded that respondent 

knew it had experienced a reportable accident arguably at 11:23 a.m. (fifteen minutes 

after CPR was initiated) and conclusively at 12:20 p.m. (fifteen minutes after the 

official pronouncement of death). The judge agreed with MSHA’s designation that 

the violation was non-S&S, but did not agree that respondent demonstrated moderate 

negligence. Emphasizing that respondent quickly implemented and exhausted 

life-saving efforts, conducted a prompt assessment/investigation into the situation, 

and then immediately proceeded to contact MSHA, he modified the operator’s 

negligence from “moderate” to “low.” Id. at 520. 

Similarly, in this case, the following facts are undisputed. On May 20, 2010, Mr. Till, 

the plant manager, arrived while the EMTs were performing CPR on Mr. Works, who had 

suffered a heart attack on the job. The EMTs performed CPR on Mr. Works for approximately 

30 to 35 minutes before Mr. Works was loaded into the ambulance. The ambulance left the 

mine at approximately 5:40 a.m. Mr. Works was pronounced dead at 6:06 a.m. that same 

morning. Respondent did not make its first contact with MSHA until 7:12 a.m. 

In these circumstances, I find that Respondent failed to comply with the requirements of 

30 C.F.R. § 50.10. Respondent knew or should have known that it had experienced a reportable 

accident arguably at about 5 a.m. (fifteen minutes after CPR was initiated by Mr. Gutierrez, 

while Mr. Grimes called 911 and plant manager Till), more definitively at 5:10 a.m. 

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(approximately 15 minutes after the ambulance arrived and the EMTs took over CPR functions), 

and conclusively at 6:21 p.m. (fifteen minutes after the official pronouncement of death). I agree 

with MSHA’s designation that the violation was non-S&S, but do not agree that Respondent 

demonstrated high negligence. Like the respondent in E.S. Stone, Respondent quickly 

implemented and exhausted life-saving efforts, contacted 911 and the plant manager, conducted 

a prompt assessment at the scene, and contacted MSHA reasonably promptly, although not 

immediately, after learning of the death. In these circumstances, I modify the operator’s 

negligence from “high” to “moderate.” 

Penalty 

Respondent, as operator of the Mine has failed to provide timely notification to the 

Secretary as required under section 103(j) (relating to the 15 minute requirement), and therefore 

shall be assessed a civil penalty by the Secretary of not less than $5,000 and not more than 

$60,000. See section 110(b)(2) of the Mine Act. The Secretary has assessed a proposed penalty 

of $5,000, the statutory minimum for the violation. 

Under section 110(i) of the Act, “the Commission shall have authority to assess all civil 

penalties provided in this Act.” 30 C.F.R. § 820(i). Although the Secretary issues citation and 

orders under the Act and proposes civil penalties, it is the Commission that is responsible for 

assessing civil penalties and providing other appropriate relief. Sellersburg Stone Co., 5 

FMSHRC 287, 290-91 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). The Commission’s 

assessment of penalties is a de novo determination based on the six statutory criteria specified in 

section 110(i) of the Act. Section 110(i) of the Act requires the Commission to assess civil 

monetary penalties considering: (1) the operator’s history of previous violations, (2) the size of 

the business, (3) the level of negligence by the operator, (4) the effect on the operator’s ability to 

continue in business, (5) the gravity of the violation, and (6) demonstrated good faith in 

attempting to achieve rapid compliance after notification of the violation. 

The stipulations state that Standard Sand’s history of violations indicates 5 assessed 

violations at the Mine over 4 inspection days during the 15-month period prior to May 20, 2010, 

the date the citation was issued. Standard Sand’s history at the Mine also indicates no prior 

violations of 30 C.F.R. § 50.10(b) during the same 15-month period. I have found that 

Respondent exhibited moderate negligence because it quickly implemented and exhausted 

life-saving efforts, contacted 911 and the plant manager, conducted a prompt assessment at the 

scene, and contacted MSHA reasonably promptly, although not immediately, after learning of 

the death. The Respondent has stipulated that the penalty will not affect its ability to stay in 

business. The violation was determined to be non-S&S and there was no likelihood that an 

injury or illness would result from the violation. Standard Sand demonstrated good faith in 

achieving rapid compliance shortly after the failure to immediately report the accident. 

According, the penalty proposed by Petitioner of $5,000.00 for Citation No. 6599395 is 

affirmed. 

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Order 

Based upon the foregoing findings of fact, discussion and analysis, it is ORDERED that 

Citation No. 6599395 be AFFIRMED, AS MODIFIED, with a penalty of $5,000.00, which 

shall be paid by Respondent within thirty (30) days. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (E-Mail and Certified Mail) 

Benjamin A. Stark, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, Georgia, 30303, for Petitioner 

Nichelle Young, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place. Suite D, 

Beltsville, Maryland 20705, for Respondent 

/ld 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

December 20, 2011 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

 :

 :

CIVIL PENALTY PROCEEDING 

ADMINISTRATION (MSHA), 

Petitioner 

:

 :

Docket No. KENT 2009-10-M 

A.C. No. 15-18478-162708 

:

v. :

APEX QUARRY, LLC, 

Respondent

 :

 :

 : 

Mine: Apex Quarry, LLC 

DECISION AND ORDER 

Appearances:	 Angele Gregory Esq., and Elizabeth L. Friary, Esq., U.S. Department of 

Labor, Office of the Solicitor, Nashville, Tennessee for Petitioner 

Todd Harris, pro se, White Plains, Kentucky for Respondent 

Before: Judge McCarthy 

This case is before me upon a petition for civil penalties filed by the Secretary of Labor 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 

(the Mine Act), charging Respondent, Apex Quarry, LLC (Apex) with seven section 104(a) 

significant and substantial1

 violations of mandatory safety standards and seeking a total civil 

1

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

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

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to 

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); 

see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. 

v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). The 

Commission has further found that “an inspector’s judgment is an important element in an S&S 

determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825–26); see 

also Buck Creek Coal, 52 F.3d at 135–36 (stating that ALJ did not abuse discretion in crediting 

opinion of experienced inspector). An evaluation of the reasonable likelihood of injury should be 

made assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(continued...) 

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penalty of $19,632.00 for those violations. At the hearing on June 21, 2011, the parties 

stipulated to certain amended citations and stipulated that Respondent would accept other 

citations as written. With regard to the amended citations, the Secretary agreed to reduce the 

proposed penalty amounts in accordance with the formula set forth in 30 C.F.R. Part 100.3 of the 

Mine Act. Tr. 3 Respondent, through its pro se owner, Todd Harris, admitted the violations 

and the findings relating thereto, as modified at the hearing or as originally written, and 

challenged only the amount of civil penalties proposed by the Secretary in the seven citations at 

issue, claiming that it was unable to pay them and remain in business. 

Citation Number 7752070 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14130(i) and charges as 

follows: 

The mine operator has not maintained the seat belt in the 

Caterpillar 988B FEL. The four inch wide seat belt is torn in half 

on the female side of the waste strap. The front end loader is 

presently being used to load customer trucks from the stock pile 

area. This condition creates a hazard of a miner not being properly 

restrained within the operator’s station of the front end loader. 

The cited standard, 30 C.F.R. § 56.14130(i), provides that “[s]eat belts shall be 

maintained in functional condition, and replaced when necessary to assure proper performance.” 

The citation is alleged to be significant and substantial, with one person affected, and 

moderate negligence. The gravity of the original citation was modified at the hearing from 

reasonably likely to result in an injury that could be fatal to reasonably likely to result in an 

injury that could be permanently disabling. The parties stipulated to the findings in the citation, 

as modified. Based on the gravity modification from fatal to permanently disabling, the 

proposed penalty amount was reduced from $2,106 to $946. Tr. 8-9. 

Citation Number 7752071 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14101(a)(2) and charges 

as follows: 

The parking brake provided on the Caterpillar 988B FEL is not maintained in a 

functional condition. When tested on the maximum grade of travel the parking 

brake would not hold the front end loader in place. The front end loader is 

presently being used to load customer trucks from the stock pile area. This 

condition creates a hazard of a miner being struck by/ran over by moving 

equipment. 

1

(...continued)
 

(Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).
 

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The cited standard, 30 C.F.R. § 56.14101(a)(2), provides that “[i]f equipped on selfpropelled mobile equipment, parking brakes shall be capable of holding the equipment wit its 

typical load on the maximum grade it travels.” 

The citation is alleged to be significant and substantial, with one person affected, and 

moderate negligence. The gravity of the original citation was modified at the hearing from 

reasonably likely to result in an injury that could be fatal to reasonably likely to result in an 

injury that could be permanently disabling. The parties stipulated to the findings in the citation, 

as modified. Based on the gravity modification from fatal to permanently disabling, the 

proposed penalty amount was reduced from $2,106 to $946. Tr. 9-11. 

Citation Number 7752073 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14103(A) and charges 

as follows: 

The bottom portion of the front wind shield on the Caterpillar 235 

excavator is broken and cracked for it’s entire portion. The excavator 

is normally used at the strip area of the mine to remove overburden 

material. Also inside the operator’s station of the excavator the glass 

has created ruff and sharp edges. This condition creates a hazard of a 

miner having poor visibility of operation of the machine. 

The cited standard, 30 C.F.R. § 56.14103(a), provides that “[i]f windows are provided on 

operators’ stations of self propelled mobile equipment, the windows shall be made of safety glass 

or material with equivalent safety characteristics. The windows shall be maintained to provide 

visibility for safe operation.” 

The citation is alleged to be significant and substantial, with one person affected, and 

high negligence. The gravity of the original citation was modified at the hearing from 

reasonably likely to result in an injury that could be fatal to reasonably likely to result in lost 

work days or restricted duty. The parties stipulated to the findings in the citation, as modified, 

but agreed to leave the citation as significant and substantial. Based on the gravity modification 

from fatal to lost work days or restricted duty, the proposed penalty amount was reduced from 

$6,996 to $2,106. Tr. 11-12. 

Citation Number 7752074 

This citation alleges a violation of the standard at 30 C.F.R. § 56.11001 and charges as 

follows: 

Safe access is not provided to the operator’s station of the “older” 

Wabco haul truck. The second step upon (within the truck’s bumper) 

is bent out of shape, making it difficult to get up to the operator’s 

station. This truck is used on a regular basis to haul material from the 

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pit area to the plant area of the mine. This condition creates a hazard 

of a miner slip/ trip/ falling off the truck and onto the ground. 

The cited standard, 30 C.F.R. § 56.11001, provides that “[s]afe means of access shall be 

provided and maintained to all working places.” 

The citation is alleged to be significant and substantial, with gravity reasonably likely to 

result in lost work days or restricted duty, one person affected, and high negligence. The parties 

stipulated to the findings in the citation, but agreed to modify negligence from high to moderate. 

Based on the negligence modification, the proposed penalty amount was reduced from $2,106 to 

$635. Tr. 35. 

Citation Number 7752075 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14132(a) and charges as 

follows: 

The back up alarm provided on the “older” Wabco haul truck is not 

maintained in a functional condition. When tested the alarm would 

not sound. The truck is used on a regular basis to haul material from 

the pit area to the plant area. This condition creates a hazard of a 

miner being struck by/ ran over by moving equipment. 

The cited standard, 30 C.F.R. § 56.14132(a), provides that “[m]anually-operated horns or 

other audible warning devices provided on self-propelled mobile equipment as a safety feature 

shall be maintained in functional condition.” 

The citation is alleged to be significant and substantial, with gravity alleged to be 

reasonably likely to result in an injury that could be fatal, one person affected, and moderate 

negligence. At the hearing, Respondent agreed to accept the citation, as written. Tr. 32. 

Accordingly, the proposed penalty of $2,106.00 remains unchanged. Tr. 15. 

Citation Number 7752076 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14132(a) and charges as 

follows: 

The manually operated horn on the “newer” Wabco haul truck is not 

maintained in a functional condition. When tested the horn would not 

sound. The truck is normally used to haul material from the pit area to 

the plant area. This condition creates a hazard of a miner being struck 

by/ran over by moving equipment. 

The cited standard, 30 C.F.R. § 56.14132(a), provides that “[m]anually-operated horns or 

other audible warning devices provided on self-propelled mobile equipment as a safety feature 

shall be maintained in functional condition.” 

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The citation is alleged to be significant and substantial, with one person affected, and 

moderate negligence. The gravity of the original citation was modified at the hearing from 

reasonably likely to result in an injury that could be fatal to reasonably likely to result in an 

injury that could be permanently disabling. The parties stipulated to the findings in the citation, 

as modified. Based on the gravity modification from fatal to permanently disabling, the 

proposed penalty amount was reduced from $2,106 to $946. Tr. 16-17. 

Citation Number 7752077 

This citation alleges a violation of the standard at 30 C.F.R. § 56.14132(a) and charges as 

follows: 

The back up alarm equipped on the Mack Super Liner water truck is 

not maintained in a functional condition. When tested the alarm 

would not sound. The truck is used on a regular basis to water road 

ways at the mine and to wash out material around the plant area. This 

condition creates a hazard of a miner being struck by/ ran over by 

moving equipment. 

The cited standard, 30 C.F.R. § 56.14132(a), provides that “[m]anually-operated horns or 

other audible warning devices provided on self-propelled mobile equipment as a safety feature 

shall be maintained in functional condition.” 

The citation is alleged to be significant and substantial, with gravity alleged to be 

reasonably likely to result in an injury that could be fatal, one person affected, and moderate 

negligence. At the hearing, Respondent agreed to accept the citation, as written. Tr. 32. 

Accordingly, the proposed penalty of $2,106.00 remains unchanged. Tr. 18. 

Civil Penalties 

Under Section 110(i) of the Act, the Commission and its judges must consider the 

following factors in assessing a civil penalty: the history of violations, the negligence of the 

operator in committing the violations, the size of the operator, the gravity of the violation, 

whether the violation was abated in good faith, and whether the penalties would affect the ability 

to continue in business. 

The Secretary’s undisputed representations in her petition establish that Respondent is 

small in size and has a moderate history of prior violations. There is no dispute that the 

violations herein were abated in good faith. The gravity and negligence of the violations have 

been admitted by Respondent and have previously been discussed. 

As noted, the Respondent claims only that the civil penalties proposed by the Secretary 

would affect its ability to remain in business. This Commission has held that the mine operator 

has the burden of proving such a claim. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 

1985). 

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At the end of the hearing, after questioning of Mr. Todd Harris by the Court (Tr. 40-52), 

and cross examination by the Secretary (52-54), I left the record open so that Respondent could 

submit the following documentation, referred to in testimony, as requested by the Court: 

- audited financial statements for Apex Quarry, LLC; 

- evidence of an IRS tax lien; 

- evidence of a Kentucky State Treasury Department tax lien; 

- the operating agreements for Apex Quarry, LLC with Mr. Leslie E. 

Strong and Mr. David L. Roberts; and 

- the legal document that governs the relationship between Todd 

Harris Excavating, LLC and Apex Quarry LLC. 

See Tr. 48, 51-52, 54-55. 

The Court specifically advised Mr. Harris, based on Judge’s Melick’s decision in Johnco 

Materials, Inc., Docket No. SE 2009-994M, slip. op. at 4-5 June 8, 2011 (ALJ Melick), that 

audited financial statements were required to meet his burden of proof, and Mr. Harris agreed to 

provide them. Tr. 38-39, 54-55. Despite the fact that the record was left open to permit 

Respondent to provide audited financial statements, Respondent failed to do so. 

Respondent provided a host of documents establishing past legal difficulties, judgments 

and liens, but provided only unaudited tax returns from 2008, 2009, and 2010, prepared by 

certified public accountants Bruce & Company, PSC, “without verification.” Furthermore, 

Respondent provided minimal, unaudited financial statements, limited to an Apex Quarry, LLC 

profit and loss statement from January through July 18, 2011, which shows ordinary income at a 

loss of (-$4,676), and an Accounts Receivable (A/R) Aging Summary through July 18, 2011 

showing accounts receivable of $16, 912.2 Moreover, although Respondent has significant 

taxable losses for 2008, 2009, and 2010, these losses are carried over to subsequent years and 

may offset any increase in Respondent’s net operating income going forward. Further, it 

appears that Respondent’s continued operation of its mining business has allowed it to continue 

making payments to significant other creditors, at least on an installment basis. In these 

circumstances, in the absence of audited financial statements, I find that the Respondent has 

failed to sustain its burden of proving that the total reduced penalty of $9,791, particularly if 

payable on an extended installment basis, would affect its ability to remain in business. 

2

 The documents provided by Respondent have been marked for identification and 

included in the record as R. Ex. 1. 

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ORDER 

Citation Numbers 7752070, 7752071, 7752072, 7752073, 7752074, 7753075, 7752076, 

and 7752077 are AFFIRMED, AS MODIFIED, and Apex Quarry, LLC is ordered to pay a 

total reduced penalty of $9,791 in 60 equal installments of $163.18, beginning on February 1, 

2012 and the first day of each successive month until paid in full. If Respondent misses a 

payment, the total unpaid balance will immediately become due and payable. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (E-Mail and Certified Mail) 

Angele Gregory, Esq., and Elizabeth L. Friary, Esq., U.S. Department of Labor, Office of the 

Solicitor, 211 7th Avenue, North, Suite 420, Nashville, Tennessee 37219 

Todd Harris, 1627 Cavanaugh Road, White Plaines, Kentucky 42464 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

7 PARKWAY CENTER, SUITE 290
 

875 GREENTREE ROAD
 

PITTSBURGH, PA 15220
 

TELEPHONE: (412) 920-7240
 

FACSIMILE: (412) 928-8689

 December 20, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), : Docket No. PENN 2009-195 

Petitioner : A.C. No. 36-05018-168539

 : 

v. : Mine: Cumberland Mine

 : 

CUMBERLAND COAL RESOURCES LP, :
 

Respondent :

 :
 

CUMBERLAND COAL RESOURCES LP, : CONTEST PROCEEDING 

Contestant :

 : Docket No. PENN 2009-100-R 

v. : Order No. 7067830; 10/07/2008 

: 

SECRETARY OF LABOR, : Mine ID: 36-05018 

MINE SAFETY AND HEALTH : Mine: Cumberland Mine 

ADMINISTRATION, (MSHA), : 

Respondent 

DECISION 

Before: Administrative Law Judge John Kent Lewis 

Appearances: Patrick M. Dalin, Esq., United States Department of Labor, Office of the 

Solicitor, Region III, 170 S. Independence Mall West, Suite 630E, The Curtis 

Center, Philadelphia, PA 19106 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty 

Avenue, Suite 1340, Pittsburgh, PA 15222 

STATEMENT OF THE CASE 

A hearing in this civil penalty proceeding was held pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 802 et seq., (the “Mine Act”). This matter concerns an 

alleged violation of the mandatory safety standards 30 C.F.R. § 75333(b)(1) and 30 C.F.R. § 

75.333(h). Order No. 7067830, citing a violation of section 104(d)(2), was served on 

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Respondent on October 7, 2008. Respondent filed a pre-penalty contest with respect to Order 

No. 7067830 on November 3, 2008. The alleged violation was found to be significant and 

substantial (“S&S”) in nature, as well as an unwarrantable failure to comply with mandatory 

safety standards. On January 26, 2010, the Secretary filed a petition to assess a $30,288.00 

penalty for the one violation. A hearing was held in Pittsburgh, Pennsylvania on June 14, 2011, 

and the parties participated fully therein. The parties later submitted post-hearing briefs. 

STIPULATIONS AT HEARING 

1. Cumberland is an “operator” as defined in §3(d) of the Federal Mine Safety and 

Health Act of 1977, as amended (hereinafter the “Mine Act”), 30 U.S.C. § 803(d), at the 

coal mine at which the orders at issue in this proceeding were issued. 

2. Operations of Cumberland at the Cumberland Mine (“the Mine”), at all times 

relevant hereto, were subject to the jurisdiction of the Mine Act. 

3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judge pursuant to 

Sections 105 and 113 of the Mine Act. 

4. A true copy of Order No. 7067830 was served on Cumberland or its agents as 

required by the Mine Act. 

5. The individual whose signature appears in Block 22 of the Order at issue in this 

proceeding was acting in the official capacity and as an authorized representative of the 

Secretary of Labor when the Order was issued. 

6. The total proposed penalty for the orders in this proceeding will not affect 

Cumberland’s ability to continue in business. 

7. The appropriateness of the penalty, if any, to the size of Cumberland’s business 

should be based on the fact that in 2007, Cumberland, the operator of the mine, mined 

7,264,244 tons of coal from the mine, and that, in 2007, the controller of the mine mined 

in excess of 10,000,000 tons of coal. 

8. Cumberland was assessed a total of 325 citations based on 943 inspection days in 

the fifteen months immediately preceding the issuance of the order in this case. 

9. The Secretary’s copy of Order No. 7067830 is an authentic copy of the order at 

issue in this preceding, and may be admitted into evidence for the purpose of establishing 

their issuance. 

10. For the purposes of a finding with respect to a “clean” inspection, in Order No. 

7067830, the initial action is identified as Order No. 7025409 issued on October 4, 2007. 

The MSHA website shows twenty-one other Section 104(d) enforcement actions during 

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this period between the initial action and the order at issue. Seven of those are final and 

closed; one of those was modified to a Section 104(a) citation. One has recently been 

settled with the Section 104(d) designation remaining intact. The rest are still in contest. 

It does not appear that even if some of those 104(d) actions were resolved favorably to 

Cumberland that there was an “intervening clean inspection” at the Mine during the 

relevant time period. 

11. There were seventeen miners working in the Cumberland West section of the 

Mine at the time that the order in this case was issued. 

12. Cumberland stipulates to the authenticity of all exhibits that the Secretary 

identified in her Pre-Hearing Statement. Cumberland further stipulates that the 

Continuous Mining Section Reports, Continuous Section Call Out Sheets, and General 

Work Accomplished Reports that it produced in response to the Secretary’s discovery 

requests are admissible. 

13. The Secretary stipulates to the authenticity of all of the exhibits that Cumberland 

identified in its Pre-Hearing Statement. 

14. The Report “Mine Citations, Orders, and Safeguards” is authentic and admissible. 

Cumberland does not stipulate to the relevancy of any violations that occurred prior to 

fifteen months before the issuance of the Order at issue. (See Joint Exhibit 1). 

SUMMARY OF THE TESTIMONY 

Inspector Walter R. Young 

On October 6, 2008, Inspector Young conducted an inspection of Cumberland West and 

89 Mains South sections. Inspector Young has been a Coal Mine Safety Health Inspector for 

MSHA for the past six years. (Tr. 24). Prior, he worked in coal mining for twenty-two years as 

a longwall foreman, shift foreman, and construction foreman. Id. As an MSHA Inspector, he 

attended the Mine Academy and took two courses, amongst others, on mine ventilation. (Tr. 

25). 

The Cumberland West section was a group of six entries, numbered 1 through 6 from left 

to right, that were driven forward in an east-to-west direction. (Tr.1

 30-31). The six entries in 

the Cumberland West section were connected by many crosscuts that were driven in a northsouth direction. The second mining area was a new section that Respondent was preparing to 

develop called 89 Mains South. (Tr. 78-79). The 89 Mains South section consisted of ten 

entries, numbered 1 through 10, left to right. (Tr. 30-32). The 89 Mains South section 

1

 The abbreviation “Tr.” refers to the Trial Transcript. 

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connected to the south side of the Cumberland West section at a ninety-degree angle and was 

planned to be developed in a north-to-south direction. (GX2

-2; GX-4). 

The Cumberland West section was ventilated by intake air (fresh air) coming into the 

mine by Entry No. 3, the track entry, and Entry No. 4, the neutral entry. (Tr. 32). According to 

Respondent’s approved ventilation plan, most of the intake air should have traveled up to the 

face of the Cumberland West section. Some of the air was then supposed to split right across 

some of the West faces and travel out of the Mine along the right return air course which was the 

entry at the far-right end of the Cumberland West section. (Tr. 32-33). Another portion of the 

air should have split to the left across some of the West faces and all the 89 Mains South faces, 

then traveled out of the Mine along the left return air course, which was located in 89 Mains 

South. (Tr. 32). The left return was also designated as the alternate escapeway after the air had 

traversed the 89 Mains South faces. (Tr. 32). Some of the intake air was also diverted to the No. 

2 Entry (the “belt entry”) to ventilate the conveyor belt. (Tr. 33). On October 6, 2008, the 

ventilation system was still intended to ventilate the face of the Cumberland West section. (Tr. 

134). 

An addendum to the ventilation plan (“Vent Plan Addendum”) for the construction and 

installation of a beltline was submitted to the Mine Safety and Health Administration (“MSHA”) 

and approved on July 29, 2008. (Tr. 59-62). This plan was developed to address the 

construction of the belt drive/take-up system that was going to connect the future conveyor belt 

of the 89 Mains South section to the existing conveyor belt in the Cumberland West section. 

(Tr. 61, 85, 124). The plan provided that air from the West conveyor would ventilate the belt 

construction site and exit the area through a regulator (ventilation control device) into the left 

return (which was also the alternate escapeway). The Vent Plan Addendum included a map of 

the Cumberland West section, which also showed the beginning of the 89 Mains South section. 

(GX-4). 

Initially, the faces of Cumberland West were mined to the west. By July 2008, 

Respondent had mined entries 2, 3, 4, 5, and 6 of the Cumberland West section to Crosscut No. 

4, and had mined Cumberland West section Entry No. 1 to Crosscut No. 2. (Tr. 103). By 

October 2008, Respondent had mined entries 1, 2, 3, 4, and 6 to Crosscut No. 8, and Entry No. 5 

to Crosscut No. 6; and by this time, mining of the faces of Cumberland West had stopped. (Tr. 

63). One continuous miner was pulled back from the faces and was not in use; the other was 

being used to grade the bottom. (Tr. 75). Respondent began grading the bottom in the West area 

in preparation for a new portal where miners would enter and exit the mine. (Tr. 66). 

Cumberland was grading this area to ensure a sufficient and reasonable amount of clearance for 

the prospective portal area. (Tr. 66). 

In addition to grading in the West area, Respondent was also preparing to go back to 

mining all the faces in 89 Mains South. (Tr. 124-26). Mining had been done at the faces in 89 

Mains South also. (Tr. 153, 163). Respondent began moving equipment, including an auxiliary 

fan, to the 89 Mains South faces. (Tr. 63, 72, 125, 164-65). A continuous miner was moved to 

2

 The abbreviation “GX” refers to Government Exhibit. 

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the 89 Mains South faces on October 8, 2008. (Tr. 164). Respondent was also installing a new 

belt conveyor in the No. 4 Entry of 89 Mains South. (Tr. 85). Respondent had mined coal 

bottoms in Entry No. 2 of the Cumberland West section on the shift prior October 6, 2008. (Tr. 

39). 

Between October 3-6, 2008, in anticipation of mining the faces in the 89 Mains South 

and for the purpose of installing the belt tailpiece, Respondent removed four metal stoppings. 

(Tr. 51). The first stopping was removed on Friday, October 3, two more stoppings were 

removed on Saturday, October 4, and the last stopping was removed on Monday, October 6, 

prior to the inspection at issue. (Tr. 52). Respondent’s managers ordered the four permanent 

stoppings be removed so that the crew could bring a fan and other equipment over to the 89 

Mains South section from the Cumberland West section. (Tr. 50-51). The metal stoppings were 

replaced with check curtains to facilitate access to the belt conveyor entry of 89 Mains South. 

(Tr. 51). 

Inspector Young testified that while he was inspecting the faces of the 89 Mains South 

section on October 6, he discovered that three permanent ventilation controls were missing from 

Cumberland West section’s left return air course. (Tr. 36). Where there was once a permanent 

stopping in the No. 1 Crosscut, there was an unsecured line curtain that was blown open by the 

intake air rushing into the return air course. (Tr. 36, 44). Inspector Young then noticed two 

more permanent stoppings were missing from the vicinity of the No. 89 Crosscut. Inspector 

Young performed a chemical smoke test at the locations of these three missing stoppings and 

confirmed that air was flowing from the intake into the return. (Tr. 47-48). 

Inspector Young testified that he discussed the three missing stoppings with Safety 

Representative Perry and Foreman Andy Jellots. (Tr. 37). Inspector Young was told by 

Foreman Jellots that the removal of these permanent stoppings was ordered by continuous 

mining section coordinator Dan Fraley. (Tr. 51). Inspector Young told Safety Representative 

Perry and Foreman Jellots that the removal of these stoppings was not allowed and ordered them 

to remove the crew outby the tailpiece and to repair the missing stoppings. (Tr. 37-38). The 

miners were brought outby to repair the missing stoppings because the stoppings were essential 

for maintaining two escapeways from the working section, a primary and an alternate. (Tr. 38). 

Inspector Young testified that he instructed Respondent to rebuild the two permanent 

stoppings at the No. 89 Crosscut (GX-2) and secure and tighten the curtains in Crosscut No. 1 

(GX-2) and Crosscut No. 3 (GX-2) in order to terminate the violation. (Tr. 58-59, 127-128). It 

took nine to ten men over five hours to terminate the violation. (Tr. 58). 

Inspector Young testified that he resumed his inspection and found that a fourth 

permanent ventilation control that had been installed to isolate the return air course was removed 

from the No. 3 Crosscut. (Tr. 44). This location also had a loose curtain. (Tr. 44). 

Inspector Young testified that as part of his inspection he took air quantity readings for 

the left return air course and the left last-open crosscut. Inspector Young took his left return 

reading in the No. 86 Crosscut of Cumberland West, between the No. 2 and No. 3 block of the 

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89 Mains South section and found the air to be moving at 76,440 cubic feet per minute. (Tr. 42). 

Inspector Young took his left last-open crosscut reading in the No. 8 Crosscut between Entries 

Nos. 1 and 2 of the Cumberland West section and found the air quantity there to be 16,016 cubic 

feet per minute. (Tr. 43). Inspector Young noticed that his left last-open crosscut reading was 

significantly lower than the reading recorded by Respondent’s most recent pre-shift examination. 

(CX3-H). 

On cross examination, Inspector Young stated that the ventilation over the continuous 

miner and in the cited areas was more than sufficient. (Tr. 76-77, 179-180). Inspector Young 

testified that at the time he found the condition, the ventilation would have served to render any 

harmful or explosive gases harmless. (Tr. 78). 

Inspector Young testified that after he finished his imminent danger run of the section, 

Respondent’s Manager of Safety, Robert Bohach, requested to speak with him on the telephone 

located at the section’s load center. (Tr. 55). Manager Bohach and other mine managers wanted 

to discuss the verbal order that Inspector Young had issued. (Tr. 55). After some discussion on 

the telephone, Manager Bohach requested Inspector Young to come above ground and discuss 

his order with mine management. (Tr. 57). Manager Bohach also requested that Inspector 

Young’s supervisor participate in the conversation. (Tr. 55). 

Inspector Young testified that he ordered two of the metal stoppings that had been 

replaced with temporary check curtains between October 4, 2008, and October 6, 2008, to be 

rebuilt in their original positions. (Tr. 87). He did not require the other two stoppings that had 

been removed to be rebuilt. (Tr. 57-58, 87). After Cumberland rebuilt two of the stoppings, 

Inspector Young left the mine but issued no written order. (Tr. 58-59). 

Inspector Young testified that at Respondent’s request he deferred the issuance of the 

written order until he was able to discuss the matter with his supervisor. (Tr. 57). Inspector 

Young’s supervisor, Dave Severini, was not at the mine on that day and was unable to come 

there until the morning of October 7. (Tr. 57). On the morning of October 7, Inspector Young 

and Supervisor Severini discussed the prior day’s order with members of the mine’s 

management, including Manager Bohach, and concluded that the written order should be issued. 

(Tr. 57). 

According to Inspector Young, the removed permanent stoppings violated multiple 

standards and presented multiple hazards to safety. Inspector Young stated to mine management 

that the two stoppings at the No. 89 Crosscut should have remained in place to keep the alternate 

escapeway (which was the same entry as the return air course) isolated so that it would not be 

contaminated with smoke in the event of a fire or explosion. (Tr. 68). 

Inspector Young testified that throughout the course of the inspection, and his 

discussions with mine management about the order, that the removed permanent stoppings 

violated multiple standards and presented multiple hazards to safety. Inspector Young stated to 

3

 The abbreviation “CX” refers to Cumberland Exhibit. 

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mine management that the two stoppings at the No. 89 Crosscut should have remained in place 

to keep the alternate escapeway (which was the same entry as the return air course) isolated so 

that it would not be contaminated with smoke in the event of a fire or explosion. (Tr. 68). 

Inspector Young also told Respondent that permanent stoppings needed to be installed along the 

return air course up to and including the third connecting crosscut outby the working face. (Tr. 

69). Inspector Young identified the missing stoppings as the reason for the significant air loss at 

the left last-open crosscut and had Respondent repair the leaks from these locations in order to 

correct the “short circuit” that these leaks were causing in the ventilation of the left side of the 

Cumberland West section. (Tr. 44-45, 127-128). The notes made by Safety Representative 

Perry and Manager Bohach on October 7 confirm that Inspector Young discussed these concerns 

with them, as well as his concern that Respondent’s pre-shift examiners were taking their air 

quantity measurements in the wrong locations on the left side of the Cumberland West section. 

(GX-9 and CX-H). 

Inspector Young testified, and his notes show, that Coordinator Fraley, who ordered the 

removal of the stoppings, told Inspector Young that Respondent could remove the stoppings to 

prepare 89 Mains South for mining because the tailpiece had not moved and because the unit 

was a super section. (Tr. 95). Significantly, Inspector Young also testified and his notes show 

that he did not believe that Respondent intentionally subverted the law. (Tr. 99-100). Instead, 

Inspector Young believed that Respondent had simply “gotten ahead of themselves” in 

anticipation of mining the 89 Mains South area of the super section. (Tr. 99-100). 

Inspector Young returned to the mine on October 7, 2008, with his supervisor and issued 

a written Section 104(d)(2) Order citing a violation of 30 C.F.R. § 75.380(a). The Order was 

designated as S&S, reasonably likely to cause a fatal injury, affecting seventeen persons, with 

high negligence and as a result of an unwarrantable failure to comply with a mandatory safety 

standard. 

Safety Representative John W. Perry 

Cumberland Safety Representative John Perry accompanied Inspector Young on his 

October 6, 2008 inspection of the Cumberland West and 89 Mains South sections (Tr. 35-36). 

As Safety Representative, Mr. Perry escorted inspectors when they came to the Mine, made 

independent safety examinations, controlled respirable dust, and conducted task training. (Tr. 

116). He had worked in Cumberland’s Safety Department for five years at the date of the 

inspection. Id. Representative Perry holds a four-year degree from the University of Pittsburgh 

in mining engineering and has over twenty years experience in mining. (Tr. 118-19). 

During testimony, Representative Perry stated that the check curtains were intended to 

maintain the integrity of the ventilation in the Cumberland West and 89 Mains South sections. 

(Tr. 179-80). He also admitted that the corrections ordered by Inspector Young stopped the 

leakage of intake air into the return air course and “significantly improved” the amount of air 

reaching the face of the Cumberland West section. (Tr. 128). 

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Representative Perry testified that he had a discussion with Inspector Young on October 

6 as to whether or not there was a violation of the escapeway standard. (Tr. 128). 

Representative Perry contended that the whole area was one super section. (Tr. 129). Such a 

super section would have the advantageous effect of moving the left last-open crosscut from the 

No. 8 Crosscut of the Cumberland West section all the way back to the east end of the 89 Mains 

South section. Id. 

Representative Perry also testified that he had never had an inspector issue a citation 

under 75.333(h) when a stopping was completely removed and that this standard was typically 

cited for holes in stoppings. (Tr. 130). Representative Perry also testified that he believed that it 

was not reasonably likely that somebody would have been injured because of the curtains’ 

condition. (Tr. 131). Representative Perry testified that it was not reasonably likely because 

there was very little methane in the section, with the highest reading being 0.2 at one of the 

faces. Id. 

Manager of Safety Robert Bohach 

Cumberland’s Manager of Safety Robert Bohach also accompanied Inspector Young on 

the October 6, 2008 inspection of the Cumberland West and 89 Mains South sections. (Tr. 35-

36). As Cumberland’s Safety Manager since 1995, Manager Bohach oversees the health and 

safety of the miners, he ensures that Cumberland complies with regulations, develops emergency 

preparedness plans, and provides advice to mine management. (Tr. 172). Manager Bohach 

holds a Bachelor of Science Degree in Mining Engineering from Pennsylvania State University 

and a Master’s Degree in Safety Management from West Virginia University; he has over 

twenty years experience in mining. (Tr. 171). 

Manager Bohach testified that metal stoppings are accepted by MSHA as a permanent 

ventilation control and are used by Cumberland in lieu of curtains as a temporary stopping. (Tr. 

175). Manager Bohach testified that he did not think the loose curtains would have created a 

situation reasonably likely to cause an injury because there was plenty of air coursed through the 

area. (Tr. 179-180). Similarly, it was not reasonably likely that an injury could have occurred 

because there was ample air going over the top of the continuous miner where the coal was being 

extracted and there was not any methane accumulation in any of the working places. (Tr. 180). 

The amount of air going over top of the miner was approximately 60,000 cubic feet per minute, 

about ten times more than what the ventilation plan required. (Tr. 181). 

Manager Bohach also testified that over the course of his career he had never seen a 

citation issued under 75.333(h) for intentionally removing a stopping. (Tr. 183). The times that 

Manager Bohach had seen a citation issued under 75.333(h) was when there was a hole in a 

permanent stopping, a cable passing through a stopping, door sprung or left open, or a crushed 

metal stopping. (Tr. 189-190). 

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LAW AND REGULATIONS 

Section 75.333(b)(1) requires “Permanent stoppings or other permanent ventilation 

control devices constructed after November 15, 1992 shall be built and maintained...[b]etween 

the intake and return air courses...” 

Section 75.333(h) requires “All ventilation controls, including seals, shall be maintained 

to serve the purpose for which they were built.” 

ISSUES 

1. Has the Secretary proved by a preponderance of the evidence that Respondent 

violated 30 C.F.R. § 75333(b)(1) and/or 30 C.F.R. § 75.333(h)? 

2. If so, was the violation significant and substantial (“S&S”) in nature? 

3. Was Respondent’s violative conduct so aggravated in nature as to constitute an 

unwarrantable failure? 

DISCUSSION AND CONCLUSION 

I. 30 C.F.R. § 75.333(b)(1) 

The mandatory safety standard 30 C.F.R. § 75.333(b)(1) is one component of a 

comprehensive regulatory scheme, codified at Subpart D of 30 C.F.R. Part 75, that aims to 

ensure the proper ventilation of underground coal mines. Ventilation is necessary to 

“(1)...dilute, render harmless and carry away the hazardous components of mine air, such as 

potentially explosive methane; and (2) to provide necessary levels of oxygen to the miners’ 

working environment.” Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 

9764-01, 9764 (Mar. 11, 1996). Because “[t]he primary means for directing air from the outside, 

through the mine openings, to the working areas and back to the surface is through the use of 

ventilation controls,” the Secretary issued the specific directives codified at § 75.333 to specify 

“where each type of control can be used and how each permanent control is to be constructed.” 

Id. at 9782. As such, § 75.333(b)(1) requires that permanent stoppings be installed to separate 

intake and return air courses up to and including the third connecting crosscut outby the working 

face, unless the operator’s approved ventilation plan authorizes otherwise. 

The active working area of the Cumberland West section on October 7, 2008, was in the 

No. 2 Entry between the No. 5 and No. 8 Crosscut. (GX-1). Respondent was required by 

§ 7533(b)(1) to install permanent ventilation controls along the return air courses to separate the 

miners from the intake air up to and including the third connecting crosscut outby the face of the 

Cumberland West section. As this is the area where miners were working, this area required the 

delivery of “necessary levels of oxygen” and sufficient air to “dilute, render harmless and carry 

away the hazardous components of the mine air.” 61 Fed. Reg. at 9764. Respondent had 

initially installed a line of permanent stoppings to isolate the left return air course, but chose to 

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remove four of those stoppings from Friday, October 3, to Monday, October 6, in order to allow 

men and equipment to travel to the 89 Mains South section. 

Section 75.333(b)(1) contains an exception that allows temporary ventilation controls to 

be used in place of permanent ventilation controls in rooms that are six hundred feet or less from 

the centerline of the entry from which the room was developed. 30 C.F.R. § 75.33(b)(1). On the 

day of the inspection, Respondent’s representatives argued to Inspector Young that they were not 

required to have the missing permanent ventilation controls installed because they were 

“rooming.” (Tr. 55; GX-3). A room is a “place abutting an entry or air way where coal has been 

mined and extending from the entry or airway to a face.” Broken Hill Mining Co., Inc., 17 

FMSHRC 1539, 1541 (Sept. 1995) (ALJ). Respondent was mining at the head of the No. 2 

Entry of the Cumberland West section. By definition, a room cannot be at the head of an entry, 

so this exception does not apply to Respondent’s ventilation of the face of the Cumberland West 

section. Id. 

Further, Respondent argued at trial that permanent ventilation controls were not required 

because the Cumberland West section and the 89 Mains South section combined to form one 

“super-section,” which then had the advantageous effect of moving the left last-open crosscut 

from the No. 8 Crosscut of the Cumberland West section back to the east end of the 89 Mains 

South section. (Tr. 128). Such a super-section arrangement is not illustrated, or supported, by 

Respondent’s Vent Plan Addendum submitted on July 29, 2008. Also, Respondent was not 

attempting to maintain a super-section one week prior to the October 6 inspection, as Inspector 

Young was present at the Cumberland West section and had observed that the line of permanent 

stoppings along the left return air course “was solid to the 4 xcut.” (GX-3 p. 13). This 

explanation must also be rejected so that compliance with the standard can not be easily 

circumvented by an operator’s ability to simply redefine the boundaries of its sections. 

The removal of these permanent stoppings resulted in a decrease in the quantity of air 

that was reaching the left side of the Cumberland West section’s face. Thus, the standards have 

not been met and, therefore, the Secretary has established a violation of this safety standard. 

II. 30 C.F.R. § 75.333(h) 

All ventilation controls are required to be maintained for the purpose for which they were 

built. 30 C.F.R. § 75.333(h). Respondent admits that it is a violation of § 75.333(h) to have an 

open airlock door, to have a hole in a stopping, or for a stopping to be crushed or bent. (Tr. 189-

190). The existence of any of these defects would be a failure to maintain a stopping in an 

adequate manner to control for leakage, and, therefore, would be a violation of the standard. 

Respondent argues that the standard only applies when a stopping has been damaged and does 

not apply when a stopping has been intentionally removed. (Tr. 130-31, 182-83). 

Respondent’s proposed readings of the standard would result in an outcome where a 

small hole drilled in a permanent stopping would be a failure to maintain that stopping for its 

intended purpose (which is to control air leakage), but removing a permanent stopping 

altogether, thereby allowing a much greater amount of air leakage, would not be a failure to 

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maintain that stopping for its intended purpose. This contradictory outcome vitiates the intention 

of the standard. 

The permanent stoppings at issue were built for the purposes of preventing intake air 

from leaking into the return air course before it reached the face of the Cumberland West 

section. When Respondent removed these permanent stoppings and replaced them with 

unsecured curtains it failed to maintain the permanent stoppings for the purpose for which they 

were built. Thus, the standards have not been met and, therefore, the Secretary has established a 

violation of this safety standard. 

III. Significant and Substantial 

A violation is properly designated as significant and substantial (“S&S”) if “based upon 

the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature.” National 

Gypsum Co., 3 FMSHRC 822, 825 (1981). The Commission has emphasized that an S&S 

finding is made in addition to the finding of the violation, noting that “something more than the 

violation of a standard itself is required.” Id., 3 FMSHRC at 826. To meet this definition, the 

Secretary must show: 1) an underlying violation of a mandatory safety standard; 2) a discrete 

safety hazard contributed to by the violation; 3) a reasonable likelihood that the hazard 

contributed to will result in injury; and 4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). 

As noted above, the first element of the Mathies test has been proven. Respondent 

intentionally removed four permanent stoppings that were required by § 75.333(b)(1) to be in 

place to isolate the intake air from the left return air course. The stoppings were also required by 

§ 75.333(h) to be maintained to serve the purpose for which § 75.333(b)(1) required them to be 

built. 

The second element of the Mathies formula requires that the Secretary prove a discrete 

safety hazard, that is, a measure of danger to safety, contributed to by the violation. In enacting 

the ventilation requirements of the Mine Act, Congress mandated that “the volume and velocity 

of the current of air shall be sufficient to dilute, render harmless, and to carry away flammable, 

explosive, noxious, and harmful gases, and dust and smoke and explosive fumes” from all active 

workings. 30 U.S.C. § 863(b). The Commission has stated that “the hazards associated with 

inadequate ventilation, especially at working faces, are among the most serious in mining.” U.S. 

Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). In support of this statement, the 

Commission has referred to Congress’ finding that “[v]entilation of a mine is important not only 

to provide fresh air to miners, and to control dust accumulation, but also to sweep away liberated 

methane before it can reach the range where the gas could become explosive” and thus “the 

requirements that a mine be adequately ventilated becomes one of the more important standards 

under the ...Act.” Monterey Coal Co., 7 FMSHRC 996, 1000-01 (July 1985) (quoting S. Rep. 

NO. 95-181, at 41 (1977)). Here, Respondent’s removal of the permanent ventilation controls 

resulted in a significant leakage of intake air into the left return air course before the intake air 

could reach the face of the Cumberland West section. The significant leakage of air resulted in a 

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substantial decrease in the amount of intake air that was reaching the left last-open crosscut, 

which was the face of the Cumberland West section. A substantial decrease in the amount of 

intake air reaching the face decreased the amount of fresh air reaching the miners which could 

lead to unconsciousness or asphyxiation. Such a decrease also allows methane and coal dust to 

accumulate, which creates the risk of a catastrophic ignition and explosion. Thus, there were 

clearly discrete safety hazards and measures of danger to safety contributed to by the violation of 

30 C.F.R. § 75.333. 

For the third element of the Mathies test, the Secretary must establish that, in the course 

of continued normal mining operations, there is a reasonable likelihood that the hazard 

contributed to will result in an injury. U.S. Steel Mining Co., 6 FMSHRC 34, 36 (Jan. 1984); 

Consolidation Coal Co., 6 FMSHRC 34, 36 (Jan. 1984). A coal mine’s ventilation plan must be 

“suitable to the conditions” of the mine. U.S. Steel Mining Co., 7 FMSHRC at 1129 n. 5. 

Therefore, the ventilation plan of a gassy mine may require a greater amount of air quantity to be 

coursed through the mine than the minimum amount required by law. Id. The Commission has 

held that a violation that creates a significant decrease in the quantity of air reaching a working 

face is significant and substantial, even when low levels of methane and coal dust are present at 

the time the violation is found, because a buildup of methane could occur in a relatively short 

period of time in a gassy mine during normal mining operations. Id; see also Broken Hill 

Mining Co., 17 FMSHRC at 1543-44 (ALJ Sep. 1995) (finding a violation of § 75.333(b)(1) to 

be S&S where no methane was detected): Beech Fork Processing, Inc., 16 FMSHRC 1346, 1353 

(ALJ June 1994) (finding a violation of 75.333(b)(1) to be S&S without any findings with regard 

to the level of methane, dust, or oxygen present). 

At the time of the violation the Mine liberated in excess of seven million cubic feet of 

methane in a twenty-four hour period. (Tr. 65). The Mine has had face ignitions in the past (Tr. 

5-6), and at the time of the violation a continuous miner was extracting coal at the face of the 

Cumberland West section. The crew at the Cumberland West section was engaged in a form of 

mining called “taking bottoms” at the time of the violation, which created the possibility that the 

drill bits of the continuous mining machine will strike rock and produce sparks. (Tr. 67). 

Respondent’s own safety representative, John Perry, admitted that there was a “distinct loss of 

air” in the left return (Tr. 122), and that there was “a lot of leakage” in at least one of the curtains 

that was installed to replace the permanent stoppings. (Tr. 128). Inspector Young measured the 

air quantity in the left last-open crosscut to be 16,016 cubic feet per-minute, and the air quantity 

in the left last return to be 76,440 cubic feet per-minute. Therefore, 79% of the intake air being 

coursed up through the left side of the Cumberland West section was leaking to the return before 

it reached the face of the section. The amount of air that was reaching the left last-open crosscut 

was less than the 18,000 cubic feet per minute that was required by Respondent’s approved 

ventilation plan. (Tr. 44). The significant reduction in air reaching the left side of the 

Cumberland West section, while mining was being conducted in the section, was reasonably 

likely to result in a serious injury or illness from loss of oxygen and/or the accumulation of 

noxious and explosive gas and dust if normal mining operations continued. 

In addition, the likelihood of an injury or illness from this violation was increased by 

Respondent’s failure to test the air quantity in the left last-open crosscut of the Cumberland West 

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section. The Mine began removing permanent stoppings from the left return on Friday, October 

3. (GX-1). All three pre-shift examinations conducted on October 3, and the one pre-shift 

examination conducted on Saturday, October 4, took a left last-open crosscut air quantity reading 

in locations in the 89 Mains South section that were in close proximity to the location of their 

left return readings. (Tr. 146-147). Because Respondent’s pre-shift examiners took the left lastopen crosscut reading and the left return reading in such close proximity, no air leakage was 

detected. The pre-shift examiners did not test the quantity of air on the left side of the face of the 

Cumberland West section. For the remainder of Saturday, October 4, and Sunday, October 5, 

the section was idle and only left return readings were taken. On Saturday, October 5, and 

Monday, October 6, Respondent removed additional permanent stoppings from along the left 

return entry. (GX-1). When mining resumed on Monday, October 6, Respondent’s pre-shift 

examiner again took his left last-open crosscut air-quantity reading near the location where he 

took his left return reading. (Tr. 148). It was not until the shift after Inspector Young’s 

inspection that Respondent’s pre-shift examiners began taking left last-open crosscut readings at 

the face of the Cumberland West section. (Tr. 149). 

The Commission has held that it was an error for an ALJ to tie the S&S determination to 

solely “an analysis of the reasonable likelihood of injury resulting from low oxygen or methane 

ignition” for a violation of the borehole drilling standard, as the standard promotes the timely 

ascertainment of hazards. Kelly’s Creek Resources, Inc., 19 FMSHRC 457, 460-61 (Mar. 1997). 

However, the Commission held that ALJ erred in finding a violation non-S&S where miners 

entered a section of the mine that did not receive a pre-shift report inspection because the 

previous inspection occurred two days prior and methane may have built-up in that time. Buck 

Creek Coal, Inc., 17 FMSHRC 8, 14 (Jan. 1995). 

Air quantity readings by the pre-shift examiners are intended to protect miners from 

exposure to hazards of which they would otherwise be unaware. Because it failed to take 

readings of the air quantity on the left side of the Cumberland West face, Respondent, and its 

miners, were completely unaware of the significant loss of air from the leaks along the left return 

air course. Respondent’s failure to take the preventative step of testing air quantity in the left 

side of the section’s face, increased the likelihood that, under continued normal mining 

operations, miners would be unknowingly exposed to either low oxygen, noxious gases, 

respirable dust, or the hazard of an explosion from an accumulation of methane and coal dust. 

Accordingly, I find that the Secretary has established the third Mathies element. 

The fourth Mathies element requires that the Secretary establish a reasonable likelihood 

that the injury in question would be of a reasonably serious nature. The particular standards 

violated were implemented to prevent highly serious dangers to miners, such as a loss of oxygen, 

the inhalation of respirable dust and explosions caused by the accumulation of methane and/or 

coal dust. The occurrence of any one of these scenarios would be gravely dangerous to miners 

and would likely result in fatal injuries. Mathies’ fourth prong is clearly met. For all of these 

reasons, the gravity of Respondent’s violation was properly classified as significant and 

substantial, and shall be sustained. 

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IV. Unwarrantable Failure 

According to the regulatory guidelines, an operator’s negligence is high if it “knew or 

should have known of the violative condition or practice and there are no mitigating 

circumstances.” 30 C.F.R. § 100.3(d). Mitigating circumstances may include, but are not 

limited to, actions which an operator has taken to prevent, correct, or limit exposure to mine 

hazards. Id. However, where the actions taken to prevent, correct, or limit exposure to hazards 

are grossly inadequate, such actions should not be considered as mitigating circumstances. 

Maple Creek, 26 FMSHRC 539, 553 (June 2004) (ALJ), aff’d in part & rev’d in part on other 

grounds, 27 FMSHRC 555 (Aug. 2005). 

Within the meaning of § 104(d) of the Act, an “unwarrantable failure” involves 

“aggravated conduct constituting more than ordinary negligence.” Buck Creek Coal, Inc. v. 

FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (quoting Emery Mining Corp., 9 FMSHRC 1997 

(Dec. 1997). Unwarrantable failure is characterized by such conduct as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Emery, 9 

FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). In 

Emery, the Commission distinguished between “negligence,” which it defined as “inadvertent,” 

“thoughtless,” or “inattentive;” and conduct constituting an unwarrantable failure, which is “not 

justifiable” nor “excusable.” 9 FMSHRC at 2001. Demonstrating aggravated conduct that 

constitutes an unwarrantable failure requires a showing that a violative condition or practice was 

not corrected prior to the issuance of a citation or order because of “indifference, willful intent, 

or serious lack of reasonable care.” Emry, 9 FMSHRC at 2003 (citing U.S. Steel Corp., 6 

FMSHRC 1423, 1437 (June 1984)); Westmoreland Mining Co., 7 FMSHRC 1342 (Sept. 1985)). 

The Secretary bears the burden of proving that the violation resulted from an unwarrantable 

failure. Midwest Minerals, Inc., 21 FMSHRC 301, 306 (March 1999) (ALJ). 

The Commission has recognized various factors as relevant to the unwarrantable failure 

determination, including the extent of the violative condition, the length of time that it has 

existed, whether the violation is obvious or poses a high degree of danger, whether an operator 

has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts 

to abate the condition, and the operator’s knowledge of the existence of the violation. 

Consolidation Coal Co., 22 FMSHRC 340, 353 (March 2000); Windsor Coal Co., 21 FMSHRC 

997, 1000 (Sept. 1999); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody 

Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals Inc., 10 FMSHRC 705, 709 

(June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). Each of the factors must 

be viewed in the context of the factual circumstances of a particular case, and some may be 

irrelevant to the specific situation. IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). It has been 

established that “all of the relevant facts and circumstances of each case must be examined to 

determine if an actor’s conduct is aggravated, or whether the level of the actor’s negligence 

should be mitigated.” Consolidation Coal Co., 22 FMSHRC at 353; accord Windsor, 21 

FMSHRC at 1001 (noting that extensiveness alone is insufficient to sustain a finding of 

unwarrantable failure.) It is necessary for a judge to consider all relevant factors, rather than 

relying on one to the exclusion of others. IO Coal, 31 FMSHRC at 1351. 

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A violation may only be deemed the result of an unwarrantable failure if all relevant facts 

and circumstances of the case demonstrate that the operator’s conduct was aggravated. See 

Consolidation Coal Co., 22 FMSHRC at 353. Here, considering all of the facts and 

circumstances surrounding this order, the Secretary has failed to establish that aggravated 

conduct was present. 

A. Extent and Duration of the Cited Condition 

The Commission has viewed the extent of the violative condition as an element in the 

unwarrantable failure analysis. IO Coal Co., 31 FMSHRC at 1351. The Commission has also 

emphasized that duration of a violative condition is a necessary element of the unwarrantable 

failure analysis. Id. at 352. Moreover, determination of the extensiveness of a condition must be 

made assuming continued normal mining operations, and must consider both the timeframe the 

condition existed prior to the issuance of the citation and the time it would have existed if normal 

mining operations had continued. See U.S. Steel Mining, 7 FMSHRC at 1130; Maple Creek 

Mining, 22 FMSHRC 742, 754 (ALJ Feldman June 2000). 

The cited condition had only existed for a few days at the most. (GX-9). There were 

only two of the four locations that concerned the inspector so the extent was likewise limited. 

The ventilation over the continuous miner and in the cited areas was more than sufficient. 

Inspector Young testified that at the time he found the condition, the ventilation would have 

served to render any harmful or explosive gases harmless. Thus, the extent and duration of the 

cited condition was not unwarrantable. 

B. There is No Evidence That Greater Efforts Were Required with Respect to Ventilation 

The Secretary argues that Respondent was on notice that greater enforcement efforts 

were necessary. Respondent had no reason to believe that greater efforts were required with 

respect to the ventilation of the cited area. To show that past violations put an operator on 

“notice” for purposes of establishing an unwarrantable failure, the Secretary must also establish 

the similarity of the prior violations to the condition at issue. See Cantera Green, 21 FMSHRC 

310, 312 (ALJ Melick March 1999); see also Mountain Coal Co. LLC, 26 FMSHRC 853, 869-70 

(ALJ Manning Nov. 2004). To do so, the Secretary must establish the nature of the prior 

violations to show that they would be relevant to place the operator on notice regarding the 

violation at issue. See Cantera Green, 21 FMSHRC at 312. 

The Secretary’s reliance on past violations of 75.333(h) or 75.333(b)(1) is not 

appropriate. Inspector Young relied upon one previous violation of Section 75.380. This is a 

moot point as Section 75.380 is no longer at issue. Inspector Young did not rely on any 

violations of Section 75.333(b)(1) or 75.333(h) in designating the cited condition as an 

unwarrantable failure during the inspection. The Secretary introduced past violations of Section 

75.333 as evidence to provide a basis for an unwarrantable failure that the inspector did not. All 

of the previous Section 75.333(h) violations were Section 104(a), Non-S&S, citations issued for 

actual maintenance issues with respect to stoppings, but not for removal of stoppings. (Tr. 70-

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71; GX-7). Additionally, there was only one citation relative to Section 75.333(b)(1), the other 

standard that the Secretary relies upon. (Tr. 71; GX-6). This hardly represents a significant 

history. 

Further, the purpose of evaluating the number of past violations is to determine the 

degree to which those violations have “engendered in the operator a heightened awareness of a 

serious problem.” IO Coal, 31 FMSHRC at 1353, citing San Juan, 29 FMSHRC at 131. 

Respondent had no such problem because the existence of a limited number of non-S&S 

citations does not support the concept that a problem is occurring. 

C. Respondent’s Good-Faith Belief That the Condition was not a Hazard was Objectively 

Reasonable 

An operator’s knowledge of the existence of a violation and whether the violation is 

obvious are important elements of an unwarrantable failure analysis. IO Coal, 31 FMSHRC at 

1356. If an operator acted on a good-faith belief that its cited condition was actually in 

compliance with applicable law, and that belief was objectively reasonable under the 

circumstances, the operator’s conduct will not be considered to be the result of an unwarrantable 

failure, even when it is determined later that the operator’s belief was in error. IO Coal, 31 

FMSHRC at 1356, (citing Kellys Creek Resources, Inc., 19 FMSHRC 457, 463 (Mar. 1997)). 

Inspector Young testified and his notes show that Coordinator Fraley, who ordered the 

removal of the stoppings, told Inspector Young that he believed Respondent could remove the 

stoppings to prepare 89 Mains South for mining because the tailpiece had not moved and 

because the unit was a super section. (Tr. 95). Inspector Young also testified and his notes show 

that he did not believe that Respondent intentionally subverted the law. (Tr. 99-100). Instead, 

Inspector Young believed that Respondent had simply “gotten ahead of themselves” in 

anticipation of mining the 89 Mains South area of the super section. (Tr. 99-100). 

Finally, the Secretary’s amendment of Inspector Young’s Order regarding what standard 

the condition violated serves to illustrate that reasonable disagreements pertaining to mining 

standards and conditions exist. Respondent had a good-faith belief that there was no violation of 

the cited standards and evidence shows that this belief was objectively reasonable under the 

circumstances. Therefore, a violation cannot be considered the result of an unwarrantable 

failure. 

D. Respondent Took Reasonable Steps to Abate the Purported Violation 

An operator’s effort in abating the violative condition is one of the factors established by 

the Commission as determinative of whether a violation is unwarrantable. IO Coal, 31 

FMSHRC at 1356. Where an operator has been placed on notice of a problem, the level of 

priority that the operator places on the abatement of the problem is relevant. Id. The focus on 

the operator’s abatement efforts is on those efforts made prior to the citation or order. Id. 

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Respondent had not been put on notice that a problem existed, but Respondent had taken 

significant efforts to maintain the integrity of the ventilation in both the Cumberland West and 

89 Mains South sections. The metal stoppings were all replaced with temporary check curtains, 

which isolated the respective areas and kept the airflow velocity and direction substantially the 

same. (Tr. 73-77, 97, 121, 131, 179-80). The curtains allowed the air to ventilate into the return, 

as it had previously. (Tr. 85-89, 111-12). The continuous miner grading the coal bottoms had 

nine to ten times the airflow required. (Tr. 76-78, 181). The fact that the airflow maintained 

continuity throughout the removal of the stoppings in this area shows that Respondent took care 

and consideration in the changes made to the ventilation. 

While Respondent did fail to take the preventative step of testing air quantity in the left 

side of the section’s face, Respondent was conducting examinations regularly and monitoring the 

ventilation at other points to ensure the integrity of the system. (Tr. 73). The October 3 and 4 

pre-shift examinations took the left last-open crosscut air quantity reading in locations in the 89 

Mains South section that were in close proximity to the locations of their left return readings. It 

was not until Inspector Young’s inspection that Respondent began taking left last-open crosscut 

readings at the face of the Cumberland West section. This creates a situation where Respondent 

could have been unaware that the air quantity in the left last-open cross-cut was 16,000 cubic 

feet per-minute while the approved ventilation plan required 18,000. Therefore, Respondent’s 

placement of metal stoppings and check curtains were reasonable attempts to maintain a safe 

working environment. 

E. The Cited Condition did not Present a High Degree of Danger 

The Commission has relied upon the high degree of danger posed by a violation to 

support an unwarrantable failure finding. IO Coal, 31 FMSHRC at 1356; see also Beth Energy 

Mines Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where 

unsaddled beams “presented a danger” to miners entering the area); Warren Steen Constr., Inc., 

14 FMSHRC 1125, 1129 (July 1992) (finding violation to be aggravated and unwarrantable 

based upon “common knowledge that power lines are hazardous, and...that precautions are 

required when working near power lines with heavy equipment”). 

There was little to no methane found at the time the Order was issued. (Tr. 129-30; GX1). While there was the possibility that the continous miner could strike rock and produce 

sparks, the Secretary presented no evidence of actual ignitions. For these reasons, and based 

upon the totality of the circumstances, the condition did not present a degree of danger high 

enough to necessitate a finding of unwarrantable failure. 

F. All Relevant Facts and Circumstances 

A violation may only be deemed the result of an unwarrantable failure if all relevant facts 

and circumstances of the case demonstrate that the operator’s conduct was aggravated. See 

Consolidation Coal Co., 22 FMSHRC at 353. Here, considering all of the facts and 

circumstances surrounding this Order, the Secretary has failed to establish that aggravated 

conduct was present. 

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The Commission outlined its authority assessing civil penalties in Douglas R. Rushford 

Trucking, stating that “the principles governing the Commission’s authority to assess civil 

penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600 

(May 2000). While the Secretary’s system for points in part 100 of 30 C.F.R. provides a 

recommended penalty, the ultimate assessment of the penalty is solely within the purview of the 

Commission. Id. Thus, a Commission judge is not bound by the penalty recommended by the 

Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo assessment of 

civil penalties does not require each of the penalty assessment criteria to be given equal weight. 

Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

ORDER 

After reviewing all the relevant facts and weighing the § 110(c) factors applicable to such 

and considering the above findings as to gravity and level of negligence associated with the 

citation and order, the Undersigned concludes that a penalty of $12,500 for the one violation is 

warranted.4 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: (Certified Mail) 

Patrick M. Dalin, U.S. Dept. of Labor, Office of the Solicitor, 170 S. Independence Mall West, 

Suite 630E, The Curtis Center, Philadelphia, PA 19106 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave., Suite 1340, 

Pittsburgh, PA 15222 

/smg 

4 Payment should be sent to: Payment Office, Mine Safety and Health Administration, U.S. 

Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390. 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N W., SUITE 9500 

WASHINGTON, D.C. 20001 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

December 20, 2011 

JAYSON TURNER, : DISCRIMINATION PROCEEDING 

Complainant :

 : Docket No. WEST 2006-568-DM 

: Case No. WE MD 2006-14 

v. : 

: 

NATIONAL CEMENT COMPANY : Mine: Lebec Cement Plant

 OF CALIFORNIA, : Mine ID: 04-00213

 Respondent : 

DECISION ON REMAND 

Before: Judge Bulluck 

This discrimination proceeding brought pursuant to section 105(c) of the Federal Mine 

Safety and Health Act of 1977 (“the Act”), 30 C.F.R. § 815(c), has been remanded by the 

Commission for further consideration of pro se Complainant Jayson Turner’s arguments and the 

record evidence on pretext. 33 FMSHRC 1059 (May 2011). 

I. Factual and Procedural Summary 

Jayson Turner, an electrician at National Cement’s LeBec Cement Plant, in Kern County, 

California, worked at that facility for ten years and three months. 31 FMSHRC 1179, 1180 

(Sept. 2009) (ALJ). During the period relevant to this proceeding, he worked the swing shift, 

from 2:00 p.m. to 12:30 a.m., Sunday through Wednesday. Id. At the same time that he was 

employed at National Cement, Turner was also employed on a part-time basis for Innovative 

Construction Solutions (“ICS”), a contractor that provided water treatment services to National 

Cement on the premises of its LeBec Plant. Id. Turner’s second job at ICS had flexible hours 

and no set schedule. Id. On June 14, 2006, Turner, on pre-approved leave for his entire shift at 

National Cement to attend a doctor’s appointment, showed his daughter around the ICS plant, 

and engaged in some work and “logged-in some activities,” from approximately 10:30 a.m. to 

1:30 p.m; later that afternoon, he had lunch with his daughter and kept his doctor’s appointment 

at 4:00. Id. This incident, which ultimately resulted in Turner’s termination, was the second of 

two run-ins between Turner and National Cement over his outside job at ICS. Id. The first 

incident, occurring on September 24, 2003, involved Turner working at ICS on a day and time 

that he was scheduled to work, but did not report to his job at National Cement for “personal 

reasons.” Id. It resulted in a “written verbal” reprimand charging him with being “absent from 

work without consent of the Company,” and warning him that if such an incident were to happen 

again, it would result “in more severe disciplinary action, including possible discharge.” Id. On 

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June 14, 2006, just short of three years later, as a result of Turner’s co-workers reporting to his 

immediate supervisor, chief electrician Julius Wetzel, that Turner had been sighted at ICS that 

morning, and based on ICS’ report to Wetzel that Turner had performed some work while at the 

plant, National Cement’s plant manager, Byron McMichael, ultimately terminated Turner, 

effective June 23, 2006. Id. at 1181. Turner was charged with “working for another firm on a 

day that [he was] absent from NCC and [his] less than acceptable performance.” Id.

 On July 16, 2006, Turner filed a Discrimination Complaint with the Mine Safety and 

Health Administration (“MSHA”) pursuant to section 105(c)(2) of the Act, 30 U.S.C. 

§ 105(c)(2). Id. at 1179. After completion of its investigation, by letter dated August 25, MSHA 

notified Turner of its conclusion that no violation of section 105(c) of the Act had occurred. Id. 

Thereafter, Turner filed an action with the Commission on August 31, 2006, under section 

105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). Id. A hearing was held in Pasadena, California, and 

I issued a Decision concluding that, although Turner had engaged in activity protected by the 

Act, he failed to establish a prima facie case, because he did not prove that his protected activity 

in any part served as the basis for his termination by National Cement. Id. at 1180. 

Furthermore, I found that, assuming, arguendo, that Turner’s protected activity played some part 

in the decision to fire him, National Cement ultimately proved that Turner was discharged for 

business reasons that were wholly unrelated to his protected activity. Id. I concluded that 

Turner was terminated for non-conformance with the company’s policy respecting outside 

employment and less than satisfactory performance. Id. at 1186. I further found that National 

Cement would have terminated Turner on the sole basis of his conduct respecting his outside 

work at ICS, irrespective of any protected activity and, consequently, I dismissed his 

Discrimination Complaint. Id. Thereafter, the Commission granted Turner’s Petition for 

Discretionary Review and, in a 3-2 split decision, vacated my decision and remanded the matter 

for further consideration of Turner’s arguments on pretext. 

II. The Law 

A restatement of the applicable law at this juncture provides an organized framework in 

which to discuss my analysis of National Cement’s justification and Turner’s pretextual 

arguments, and the resultant findings and conclusions. A complainant alleging discrimination 

under the Act establishes a prima facie case of prohibited discrimination by presenting evidence 

sufficient to support a conclusion that the person engaged in protected activity and that the 

protected activity complained of was motivated in any part by that activity. See Driessen v. Nev. 

Goldfields, Inc. 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F. 2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In Pasula, the 

Commission held that a complainant must prove a prima facie case by a preponderance of the 

evidence. 2 FMSHRC at 2799. The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action was in no part motivated by 

protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the 

prima facie case in this matter, it, nevertheless, may defend affirmatively by proving that it also 

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was motivated by the miner’s unprotected activity and would have taken the adverse action for 

the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying PasulaRobinette test); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving 

the Commission’s Pasula-Robinette test). 

In determining whether a mine operator’s adverse action was motivated by protected 

activity, the judge must bear in mind that “direct evidence of motivation is rarely encountered; 

more typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). “Intent is subjective and in 

many cases the discrimination can be proven only by the use of circumstantial evidence.” 

Id. at 2510 (citation omitted). In Chacon, the Commission listed some of the more common 

circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; (2) 

hostility or animus towards the protected activity; (3) coincidence in time between the protected 

activity and the adverse action; and (4) disparate treatment of the complainant. Id. at 2510-12; 

see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (Apr. 1991). The Commission has 

also held that an “operator’s knowledge of the miner’s protected activity is probably the most 

important aspect of a circumstantial case” and that “knowledge . . . be proved by circumstantial 

evidence and reasonable inferences.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 

FMSHRC 953, 957 (Sept. 1999) (citing Chacon). In Bradley v. Belva Coal Co., the Commission 

enunciated several indicia of legitimate non-discriminatory reasons for an employer’s adverse 

action, including evidence of the miner’s unsatisfactory work record, prior warnings to the 

miner, past discipline consistent with that meted out to the complainant, and personnel rules or 

practices forbidding the conduct in question. 4 FMSHRC 982, 993 (June 1982). Ultimately, the 

Commisssion’s inquiry into the operator’s business justification for its actions is summarized as 

folows: 

[T]he inquiry is limited to whether the reasons are plausible, whether they 

actually motivated the operator’s actions, and whether they would have led the 

operator to act even if the miner had not engaged in protected activity. The 

Commission may not impose its own business judgment as to an operator’s 

actions. Further, . . . the Commission may not substitute its own justification for 

disciplining the miner over that offered by the operator. 

Pendley v. FMSHRC, 601 F.3d 417, 423-24 (6th Cir. 2010) (restating the Pasula-Robinette test). 

While I found that Turner had engaged in protected activity by bringing safety concerns 

to the attention of his supervisors, and that the complaints occurred in close proximity to his 

firing, I found that he did not establish a prima facie case because he failed to produce any 

evidence that his protected activity played any part in National Cement’s decision to terminate 

him. 31 FMSHRC at 1183. However, the Commission majority, reviewing my prima facie case 

analysis de novo, noted that the burden of proof in establishing a prima facie case is lower than 

the ultimate burden of persuasion in proving a section 105(c) violation, and concluded that 

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Turner had presented sufficient circumstantial evidence to compel a conclusion that retaliation 

could be inferred from the evidence and, therefore, that he established a prima facie case. 33 

FMSHRC at 1065-67. In so finding, notwithstanding the fact that Turner was required to prove 

a prima facie case by a preponderance of the evidence, the majority concluded that I had 

incorrectly elevated the burden of proving a prima facie case and failed to consider 

circumstantial evidence of impermissible motivation. Id. at 6; see Pasula, 2 FMSHRC at 2799 

(a complainant must prove the two-pronged elements of a prima facie case by a preponderance 

of the evidence). Furthermore, respecting National Cement’s defense, it concluded that I had 

failed to address evidence that the operator’s justification for Turner’s discharge was pretextual. 

33 FMSHRC at 1065. 

III. Instructions on Remand 

Having determined that Turner established a prima facie case, the majority found that the 

record contains considerable evidence supporting Turner’s arguments on pretext. I am directed, 

on remand, to consider and address the circumstantial evidence of National Cement’s motivation 

in firing Turner by determining whether its defenses are credible and would have motived it, as 

claimed, and make necessary findings on the ultimate issue of discrimination. Id. at 1072-73. 

Moreover, the majority cautioned that National Cement’s defense should not be “examined 

superficially or be approved automatically once offered.” Id. at 1073 (citation omitted). The 

majority cited Commission precedent holding that “pretext may be found . . . where the asserted 

justification is weak, implausible, or out of line with the operator’s normal business practices.” 

Id. (citations omitted). In further explanation of Turner’s burden in proving pretext, the majority 

pointed to courts’ interpretations of other federal anti-discrimination statutes, noting that “[a] 

plaintiff may establish that an employer’s explanation is not credible by demonstrating ‘either 

(1) that the proffered reason had no basis in fact, (2) that the proffered reasons did not actually 

motivate his discharge, or (3) that they were insufficient to motivate discharge.’” Id. (citations 

omitted) (emphasis in original). By structuring its analysis in this way, the majority found that 

“[t]he record demonstrates that, at trial, Turner presented a significant amount of circumstantial 

evidence that the operator’s purported reasons and explanations for firing him were inconsistent 

or otherwise suspect.” Id. In summary, the majority found that “[I] should have questioned 

whether Turner’s work for a short time at a second job prior to a shift for which he properly 

requested medical leave was a sufficient basis for firing him.” Id. at 17. While it appears, as the 

majority strongly pointed out, that National Cement’s explanation is suspect in some respects, 

careful and thorough consideration of its reasons for Turner’s discharge leads to a conclusion 

that the operator was motivated solely by factors other than Turner’s protected activity. 

IV. National Cement’s Rebuttal of Turner’s Prima Facie Case 

National Cement’s proffered reasons for firing Turner were that he worked for ICS, his 

secondary employer, on a day that he was scheduled to work for National Cement but did not do 

so, and that his work performance was poor. The record is clear that Byron McMichael made the 

ultimate decision to terminate Turner based on Wetzel’s report of Turner’s work at ICS on June 

14, review of Turner’s personnel file, and recommendations that Turner be fired from Wetzel 

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and his supervisor, electrical manager, Bill Russell. Given that it is not readily apparent how 

Turner’s work at ICS, prior to the time that he would have reported to his scheduled shift at 

National Cement, could have interfered with his primary employment, and given that Turner had 

never been disciplined beyond “written verbal” warnings for any performance deficiencies, 

National Cement’s explanation for terminating him requires close examination. A critical eye 

must be applied to the operator’s view of Turner’s protected activity, as well as its view of his 

secondary job, and why the company even made an issue of Turner’s work for ICS in the first 

place, and then was so rigid in its discipline. For the reasons that are fully discussed below, I 

find that National Cement successfully rebutted Turner’s prima facie case by proving that 

Turner’s termination was in no part motivated by his protected activity. 

A. Knowledge 

The majority was critical of my having credited McMichael’s testimony that he was 

unaware of Turner’s safety complaints, and made his decision based solely on Turner’s nonprotected conduct. It found that I had failed to reconcile this finding with evidence that Wetzel 

and Russell knew of Turner’s protected activity and were consulted by McMichael in making his 

ultimate decision. Id. at 9. The majority instructed that “if Wetzel’s and Russell’s 

recommendations to terminate Turner were at least partially a result of retaliatory animus and if 

those recommendations influenced McMichael’s decision to terminate Turner, then Wetzel’s and 

Russell’s knowledge and retaliatory animus may be attributed to the decision maker.” Id. at 10 

(emphasis added). Finally, the majority requires that “[a]s to the ultimate question of 

discriminatory motive, on remand, [I] must address whether McMichael’s decision to terminate 

Turner was influenced by the recommendation of Wetzel and Russell. If so, Wetzel’s and 

Russell’s knowledge of Turner’s protected activities should be imputed to McMichael.” Id. at 11 

(emphasis added). 

Turner’s protected activity, when considered in the context of National Cement’s 

motivation, requires a separate analysis of management’s reaction to each incident. Without 

evidence that Wetzel’s and Russell’s perception of Turner’s safety complaints rose to a level of 

importance that would make it reasonable to infer that they were reported up the management 

chain to McMichael, the mere fact that the protected events occurred does not, in and of itself, 

lead to a conclusion that it is appropriate to impute their awareness of them to McMichael. A 

review of the record suggests otherwise, that the incidents were not viewed by Wetzel and 

Russell as serious, but rather, routine matters, typical of daily plant operation. As will be 

discussed in detail, the record does not provide a basis for imputing Wetzel’s and Russell’s 

knowledge of Turner’s protected activity to McMichael, and establishes that McMichael only 

had actual knowledge of the roller mill shutdown, an incident that he did not consider a safety 

complaint. 

1. Manlift Lights 

Turner testified that, in January of 2006, he had mentioned to Wetzel and Russell that the 

company manlift needed after-market driving lights installed in front of the wheels, so as to 

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avoid potholes in the road when his assignments required driving the equipment at night in the 

unlit quarry area of the plant. Tr. 48-50, 102-03. According to Turner, Russell had suggested 

that he plug a “little job light” into a receptacle in the basket. Tr. 50, 52, 189; see 439. Russell 

testified that he very well may have made this suggestion to Turner in order to fix the problem 

immediately, but that he was of the opinion that modification of the lights was unnecessary, 

because the manlift had come from the manufacturer equipped with all the safety devices that it 

was required to have. Tr. 229, 231-32. Wetzel testified that he had addressed the problem by 

instituting a procedure whereby the manlift was positioned at the quarry during daylight, so that 

it would already be in place for electrical work performed at night. Tr. 453, 459-60. Wetzel also 

opined that Turner’s suggestion would not have worked, because the driver sits in the back of the 

vehicle about 15 to 20 feet: 

The design of the manlift when you put lights on it to shine on the road in front of 

it, you couldn’t effectively see them from where you’re driving from anyway. 

You couldn’t see it. The boom would be blocking your view. Long range there. 

So if you’re shining in front of the manlift, I don’t see how you could do any 

good. 

Tr. 458-59. Turner does not challenge or contradict Wetzel’s or Russell’s testimony on their 

respective handling of this issue, and the record supports a conclusion that each supervisor 

believed that he had adequately addressed Turner’s concern. There is simply no indication that 

Wetzel or Russell viewed Turner’s complaint as either unresolved or of a magnitude that 

required McMichael’s attention. In fact, Wetzel credibly testified that he had not even discussed 

the matter with Russell. Tr. 469-70. Therefore, I fully credit Wetzel and Russell, that neither of 

them had discussed Turner’s request for lights on the manlift with McMichael and, because they 

viewed Turner’s concern as an issue that had been promptly and fully addressed, there is no 

support in the record for imputing their knowledge to McMichael. 

2. Thin, Electrically-Rated Gloves 

Turner testified that, in April of 2006, he had reported the need for the electricians to 

have thin, tactile, electrically-rated gloves to the safety manager Randy Logsdon, safety 

committeemen Bill Edminister and Chris Hess, and Julius Wetzel. Tr. 18-19, 39, 104, 223-24. 

According to Turner, he had checked the status of his request with Logsdon on June 16, 

following his meeting with Wetzel and McMichael about suspending him pending termination, 

and Logsdon explained that his research on the gloves had turned up none that met his 

specifications. Tr. 19, 34-35, 105-06. Logsdon essentially gave the same account of how Turner 

had raised the need for the gloves, and stated that he had looked at a number of safety equipment 

catalogs, but had not been able to find the product. Tr. 361-63, 372. Logsdon testified that he 

had processed Turner’s comments “as a request to research the availability of a potential new 

type of personal protective equipment,” or an “inquiry,” rather than a safety complaint. Tr. 369-

70. Moreover, he opined that the electricians at National Cement had the proper equipment with 

which to perform their duties, and that they were able to work safely without the gloves that 

Turner had requested. Tr. 368-69. Finally, Logsdon testified credibly to having no recollection 

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of discussing Turner’s request with McMichael, and described the kinds of issues that, generally, 

he would have brought to McMichael’s attention as “higher level safety issues that would 

require a major expense, a major modification to plant equipment, a change in procedure or 

process, or capital investment.” Tr. 365-67. Logsdon’s testimony in this regard is consistent 

with McMichael’s, that matters such as gloves should be addressed by the safety manager and 

that he, McMichael, for the most part, is not approached about, nor would he pay attention to 

“mundane routine items like safety-toed shoes for the employees.” Tr. 316-18; see 243, 301-02. 

Bill Russell testified that he had not been asked to provide any kind of safety gloves, and 

that he did not recall any conversation with Randy Logsdon about them. Tr. 196-97. 

Julius Wetzel testified that he remembered Turner mentioning lightweight, electricallyrated gloves to him. Tr. 438. He also stated that, normally, he does not communicate safety 

issues raised by his subordinates to McMichael. Tr. 434. In his opinion, the electricians at 

National Cement do not have a need for gloves of this nature. Tr. 467. Contrary to the 

majority’s reading of the transcript, that Wetzel’s testimony was, in part, sarcastic, I observed the 

demeanor of Wetzel and Turner on cross-examination and found Wetzel’s comment, “but you’re 

not a lineman,” a direct expression of his opposition to Turner’s suggestion that his (Turner’s) 

duties were analogous to that of a lineman, and consistent with his opinion that the gloves Turner 

had asked for were unnecessary. Id. at 12; Tr. 438. 

The majority concluded that I had not considered Bill Edminister’s testimony that he had 

raised Turner’s concern about thin, electrically-rated gloves at a safety committee meeting, and 

that the response had been “kind of a chuckle,” without comment. Id. at 9; Tr. 148. The 

majority goes further in that regard, pointing out that McMichael was most likely in attendance 

at that safety meeting. Id. at 10. Without more, for example, the identity of the chuckler and 

conversation in which to put the gesture into context, it is difficult, if not impossible, to ascertain 

what to make of it. McMichael may have very well been at that meeting, although he testified to 

only vaguely remembering Logsdon announcing at one of the meetings that he was investigating 

gloves for electricians, but had no knowledge of who had prompted the request. Tr. 310. 

Whether this was the same meeting to which Edminister was referring is unclear from the record. 

As probable as it seems that McMichael was present at a safety committee meeting where 

Turner’s concern about the gloves was expressed, it is as probable that no one elevated the 

concern beyond a routine request for equipment. After all, the union is represented in these 

meetings and there is no evidence that the union felt it necessary to intercede for Turner or get 

involved in the matter otherwise. 

Turner was not forthcoming with any evidence that thin, electrically-rated gloves existed 

at the time of his request, despite his assertions at hearing that the gloves “became available in 

the last few years.” Tr. 36-37, 226. Moreover, Turner failed to establish that the gloves he 

asked for were necessary. Indeed, Randy Logsdon researched the gloves, and the fact that he did 

not tell Turner that they were unavailable until Turner asked for an update in mid June supports 

his testimony that he viewed Turner’s concerns as a mere request for equipment. There is no 

indication from the record that National Cement viewed Turner’s concern about the gloves as an 

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issue requiring higher level attention from McMichael, or action beyond Logsdon’s research. In 

fact, because Logsdon had researched them, it is reasonable to assume that had he found them, 

he would have provided them to Turner. In any case, I credit Russell’s testimony that he was 

unaware of Turner’s concerns about the gloves and, because the record supports a conclusion 

that these gloves were small-line items and unessential, I conclude that Wetzel did not make 

McMichael aware of Turner’s complaint, and there is no support in the record for imputing 

Wetzel’s knowledge to McMichael. 

3. Roller Mill Troubleshooting 

Jayson Turner and National Cement could not hold more divergent views of the roller 

mill incident of May 24, 2006, when Turner, required to rack-in the roller mill, improperly 

engaged the wrong switch gear to the old raw mill and shut down the power to the entire plant. 

Tr. 24-30, 205-06, 490-91, 497-500, 564. Turner has been credited with having made a safety 

complaint about this inactive raw mill being mislabeled and not locked and tagged-out of service 

by National Cement. Tr. 20-21, 26-28, 31. Rather than a safety complaint, National Cement 

views this incident as an example of Turner’s poor performance. 

Bill Edminister shed some light on the circumstances surrounding the incident by 

explaining that the old raw mill had not been dismantled so that, at some point in the future, 

National Cement could make use of the system. Tr. 176. He also testified that power 

interruptions to the plant occur frequently, which was corroborated by Wetzel’s estimate that 

four or five employees, over a six year period, had knocked down power to the plant. Tr. 143-

44, 507. Bill Russell testified that other employees responsible for interrupting power were 

“written up” just like Turner. Tr. 196; see 507-08 (Wetzel’s corroboration of this point). 

Russell and Wetzel gave similar accounts of the incident. Russell testified that, instead 

of racking-in the roller mill, Turner went to the main substation where the old raw mill starter 

was located and racked that in, which is what knocked out the power to the plant. Tr. 205-06. 

According to Russell, this should not have happened because, “the old raw mill had been out of 

service for at least five years when this happened. . . . Everybody knew it was out of commission 

for the last five years. He shouldn’t have been over there. The starter where you go in to rack-in 

and out the physical roller mill is in an entirely different building.” Tr. 206-07. Wetzel, 

likewise, testified that Turner never should have left the building: “[t]here was no reason for 

him- - if he troubleshot the system properly, he shouldn’t have been over there.” Tr. 495-98. In 

Wetzel’s opinion, Turner’s poor troubleshooting technique, i.e., that he was in the wrong place, 

was responsible for exposing him to the “misidentified” equipment. Tr. 496-98. Furthermore, 

the electrician’s log reflects that Turner had successfully racked-in the roller mill on several 

occasions, an indication that he should have known how to properly troubleshoot the equipment 

on May 24. Tr. 519-23, 524-25; Ex. R-5. 

According to Turner, through his own testimony and cross-examination of Russell and 

Wetzel, he was not attempting to rack-in the roller mill, but restore the medium voltage 

disconnect. Tr. 211-12, 563. Stated another way, he “was actually looking for the power supply 

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and not the starter, itself.” Tr. 567. He further testified that, because of the written warning that 

Wetzel had issued to him on June 6 for “mistakenly knocking the plant power down by 

disconnecting the wrong medium voltage disconnect supplying power to the new raw mill,” he 

“knew [his] job was on the chopping block,” and he filed a grievance on June 12. Tr. 30-31. 

Byron McMichael’s testimony, “[y]eah, the whole plant would know that. Everyone 

knew that all the power was off,” makes clear that he knew of Turner’s accident. Tr. 273, 302. 

There is ample evidence, however, that National Cement viewed the incident as a performance 

deficiency, and Wetzel, Russell and McMichael testified that Turner would not have been 

terminated solely for his job performance. Tr. 198 (Russell); 262, 269 (McMichael); 462-63, 

557-58 (Wetzel). The record supports this testimony - - Turner was disciplined in the same 

manner as others who committed the same infraction. It is abundantly clear that no further 

action, beyond the “written verbal” warning was contemplated for Turner having caused the 

power interruption. It was not until the second ICS incident that National Cement was motivated 

to act. Turner’s job performance was not even discussed with Turner and union representative 

Neal Janousek at the June 16 meeting, which is further indication that Turner’s performance was 

reviewed secondarily, more so as an aggravating factor, and would not have been called into 

question had the ICS incident not occurred. Tr. 544-546. 

4. Pre-Calciner Burner Troubleshooting 

Turner alleges that, on June 12, 2006, he complained to Allen Lee, the process control 

supervisor, that Lee had put the tower rangers and Turner in harm’s way by needlessly 

subjecting them to extreme heat and toxic gasses in the Pre-Calciner burner tower, in order for 

them to determine why the burners could not be started remotely. Tr. 43-44. According to 

Turner, the problem was clearly identifiable, and could have been resolved easily from the 

control room by reducing the main gas pressure on the kiln deck burner. Tr. 44. Turner testified 

that he and his co-workers spent an hour troubleshooting the burners in the hot, gaseous 

environment for no good reason and, thereafter, he made a “pretty stern statement” to Lee over 

the radio, that they were angry and that Lee should record the solution in the log-book for future 

reference. Tr. 44-48. 

Tom Hastings testified that he recalled troubleshooting the Pre-Calciner burners with 

Turner that night, and saying something to Turner “about [him] possibly angering somebody . . . 

over the radio.” Tr. 349; see 352-53. He stated that he could not remember Turner’s exact 

comment, but that he recalled the workers being “a little upset about it because it’s not exactly a 

safe place to be.” Tr. 350, 352. Hastings’ testimony provides ample corroboration that Turner 

had expressed his anger to Lee, which has been credited to Turner as a bona fide safety 

complaint. 

Allen Lee had no supervisory authority over the electrical shop, and the record is bereft 

of any indication that he spoke to anyone about Turner’s conduct, or was in any way involved in 

the decision to terminate him. Tr. 99, 101. Turner, himself, testified that Lee did not take his 

suggestion and annotate the log, which makes it likely that nothing had been written about the 

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incident. Tr. 47. Furthermore, there is no evidence that establishes Logsdon’s, Wetzel’s, 

Russell’s, or McMichael’s knowledge of the Pre-Calciner burner incident or Turner’s strident 

radio communication to Lee. Tr. 198, 238, 273, 410, 505-07. Therefore, the record does not 

support a basis for either imputing Wetzel’s or Russell’s knowledge to McMichael, or crediting 

McMichael with actual knowledge of Turner’s complaint. 

B. Animus 

The majority suggests that National Cement was, by and large, unresponsive to Turner’s 

complaints. My consideration of the record leads me to a contrary conclusion. I find that the 

operator’s actions, respecting each instance of protected activity, were within the realm of 

reasonable behavior and, therefore, not indicative of any hostility. Based on this conclusion, 

there is no basis to support imputing to McMichael animus on the part of Wetzel and Russell for 

Turner’s safety complaints, just as there is no evidence of animus on the part of McMichael 

respecting the sole incident of which he was aware, the power interruption to the plant. 

1. Manlift Lights 

Piggybacking on the previous discussion of Wetzel’s and Russell’s handling of Turner’s 

request for after-market lights on the manlift, although Turner may not have been completely 

satisfied, the record indicates that both managers believed the issue to have been fully addressed 

and resolved in January of 2006, when it was raised. The record supports a conclusion that the 

issue died in January, that there was no hostility on the part of any management official about 

Turner’s complaint when it occurred or at any time thereafter, and that it was never a motivating 

factor for any action taken by National Cement during the balance of Turner’s employment. 

2. Thin, Electrically-Rated Gloves 

The complaint about the electricians not being outfitted with thin, electrically-rated 

gloves occurred in April of 2006. At this juncture, the question of Russell’s mind set about this 

matter is a non-issue, inasmuch as Russell’s testimony that he had no knowledge of the glove 

issue was not controverted by Turner and is wholly credible. The record establishes that Randy 

Logsdon made earnest, albeit unfruitful, efforts to locate gloves that satisfied the specifications 

requested by Turner. This is true, despite the fact that Logsdon believed the electricians to have 

already been provided with adequate equipment to perform their duties safely. The fact that 

Logsdon did not give Turner an update until Turner approached him in June may appear 

inattentive by some standards, but clearly this delay of two months or less does not outweigh 

Logsdon’s attempts to satisfy Turner’s request. On the other hand, Wetzel’s reaction to Turner’s 

request, while perhaps appearing to have been somewhat passive, is explained by his position, 

like Logsdon’s, that National Cement’s electricians had no need for the gloves. Finally, as has 

been fully explained above, the record considered in its entirety does not support taking the giant 

leap necessary to support a conclusion that the “chuckle” about the gloves in the safety 

committee meeting was indicative of hostility on the part of National Cement management. 

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3. Roller Mill Troubleshooting 

Turner’s accidental shutdown of the plant on May 24, caused by his improper 

engagement of the wrong switch gear, was clearly considered a performance deficiency by 

National Cement, for which he received minimal discipline. While the majority has pointed out 

that power interruptions to the plant were common occurrences, the record makes clear that 

National Cement treated Turner in the same fashion as others who had committed the same 

offense; they were issued “written verbals.” Furthermore, the record provides no indication of 

any additional discipline, beyond the warning, either contemplated by the company or actually 

meted out to Turner. Turner’s testimony that he “knew [his] job was on the chopping block,” is 

simply not borne out by the record. Wetzel, Russell and McMichael all testified that Turner 

would not have been fired for the roller mill debacle and, in fact, he was not fired until the 

intervening trigger occurred, the ICS incident. Tr. 462-63, 557-58 (Wetzel); 196 (Russell); 262, 

269 (McMichael). Finally, there is no support in the record for Turner’s claim that his written 

report of the roller mill incident, in which he complained about the equipment being mislabeled 

and not locked and tagged-out of service, engendered hostility on the part of National Cement 

management. 

4. Pre-Calciner Burner Troubleshooting 

Turner’s safety complaint about miners needlessly being exposed to the extreme heat and 

gaseous environment in the Pre-Calciner tower was expressed by radio to the process control 

supervisor Allen Lee. As has been stated, Lee did not supervise National Cement’s electricians, 

and had no involvement in the decision to terminate Turner. There is no evidence of Lee’s 

reaction to Turner’s complaint, or of Lee communicating Turner’s complaint to anyone. 

Therefore, the record establishes no basis for ascribing animus on the part of Wetzel, Russell or 

McMichael towards Turner’s complaint. 

5. Wetzel’s Opinion of Turner 

Wetzel’s characterization of Turner as “difficult” has been called into question by the 

majority, which noted that Wetzel clearly disliked Turner. 33 FMSHRC at 1070 n.9. I fully 

credit Wetzel’s testimony that Turner is hard to communicate with, defensive, does not listen, 

and takes personally things that were not so intended, as fully consistent with Turner’s 

uncooperative conduct throughout all stages of this proceeding. Tr. 460-61, 488. The record is 

replete with instances of Turner’s disruptive behavior and refusal to follow instructions, despite 

the latitude and assistance that he was afforded in presenting his case. Tr. 39, 342-43, 378, 382, 

435-36, 437, 458, 462, 465-66, 513, 517, 525, 529-30; see also Id. at 1088 n.5. Consideration of 

Turner’s consistent obstreperous pattern of behavior in this forum provides support for Wetzel’s 

negative view of him, and any hostility on Wetzel’s part is reasonably attributable to Turner’s 

behavior. Therefore, there is no basis in the record for concluding that Wetzel’s negative 

opinion of Turner was based on Turner’s protected activity. 

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6. Turner’s Performance 

As Turner’s immediate supervisor, Wetzel was of the opinion that Turner was not a good 

electrician. He was able to give examples of Turner’s poor work habits, as well as his failure to 

follow instructions. Tr. 485-489. In fact, Wetzel testified that other electricians refused to work 

with him, and that his recommendation to McMichael, that Turner should be terminated, was 

based more so on performance than Turner’s work at ICS. Tr. 488-89, 558-59, 571-72. Because 

Wetzel directly oversaw Turner’s work, and his clear, detailed accounts of Turner’s deficiencies 

were unrebutted, I also conclude that Wetzel’s overall view of Turner as an electrician, as well as 

his performance, were not bases for attributing animus to Wetzel for Turner’s protected activity. 

C. Time Proximity 

The four instances of Turner’s protected activity occurred as follows: (1) the manlift 

lights complaint in January; (2) the request for thin, electrically-rated gloves in April; (3) 

racking-in the mislabeled raw mill that had not been locked and tagged-out of service, and 

interrupting power to the plant on May 24; and (4) troubleshooting the Pre-Calciner burners on 

June 12. The record provides no indication that these incidents, the latest having occurred within 

days of Turner’s suspension and ultimate termination, individually or collectively, sparked any 

formal action from National Cement, adverse or otherwise, except the “written verbal” warning. 

The seminal event, breaking the link between Turner’s protected activity and his termination, 

was Turner’s outside employment at ICS - - an incident of such monumental magnitude to 

National Cement, that it prompted a swift reaction, and by some standards, an overreaction. See 

Tr. 512 (Wetzel’s testimony that, in retrospect, warning Turner would have been more 

appropriate than firing him). Consequently, because I find overwhelming support in the record 

that the intervening event triggered Turner’s firing, I do not find the timing of Turner’s protected 

activity and his termination indicia of animus or retaliatory motive. 

D. Disparate Treatment 

National Cement presented testimony that another electrician, Joseph Kowalski, had been 

terminated for working a secondary job during a time that he would have been working for 

National Cement. Tr. 327-30. However, the record indicates that the basis of Kowalski’s 

termination was a violation of National Cement’s negotiated attendance policy, i.e., absence for 

three consecutive workdays without providing adequate notice to the operator and a satisfactory 

reason for the absence. Ex. ALJ-1. Turner’s leave had been duly approved on the day that he 

worked at ICS, on the other hand, and his attendance was never called into question when his 

termination was contemplated. Consequently, because Kowalski was also fired, although for a 

different reason, considering the lack of evidence of any similarly situated employee, not 

terminated for working a secondary job under similar circumstances and, therefore, treated more 

favorably than Turner, it must be concluded that Turner was not treated disparately. 

In analyzing the circumstantial evidence in this case, and concluding that Turner’s 

protected activity played no part in his termination, I have also considered the evidence that 

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addresses the question of why Turner’s work on June 14 evoked such strong reaction from the 

operator. In particular, I have examined National Cement’s attitudes about ICS, Turner’s outside 

employment at the water treatment facility, and the operator’s general view of Turner as an 

employee. These factors, as well as others raised by the Commission majority, are discussed in 

conjunction with the alternative analysis, National Cement’s affirmative defense of Turner’s 

termination. 

V. National Cement’s Affirmative Defense, in the Alternative 

Assuming, arguendo, that Turner’s protected activity had played some part in National 

Cement’s decision to terminate him, the operator has also proven that it was also motivated by 

Turner’s work at ICS on June 14, and that it would have terminated him for that incident alone. 

Turner’s work at ICS in September 2003, at a time when he had been scheduled to work 

for National Cement, is the first incident of record suggestive of the operator’s irritation with 

Turner’s work for the water treatment facility. Turner was issued a “written verbal,” warning 

him that repeated behavior would result in more severe discipline, possibly discharge. As was 

discussed earlier, that incident is distinguishable from Turner’s work at ICS in June 2006, which 

occurred prior to Turner’s scheduled shift. For that reason, and because there is no evidence that 

Turner had been warned specifically not to work at his outside job whenever he took leave from 

National Cement, it appears that Turner may not have considered his behavior on June 14 to 

constitute a repeat of the earlier infraction. Turner testified that he had gotten into a routine of 

working at ICS before or after his National Cement shift. Tr. 85. There is some indication, 

however, as discussed below, that Turner’s conduct on June 14 was known to other employees to 

be prohibited by the operator and that, perhaps, Turner was not as naive as he contends. 

Moreover, there is some indication that Turner’s conduct was known, at least according to 

McMicheal, to run afoul of the negotiated labor agreement. Tr. 340. 

Byron McMichael was less than pleased about ICS’ services to National Cement. He 

testified repeatedly that he viewed ICS as an economic liability to the company inherited from 

previous owners. Tr. 252-53. Furthermore, McMichael had very little tolerance for Turner’s 

work arrangement with ICS. When asked by Turner why he felt it necessary to fire him, 

McMichael expressed his annoyance quite candidly: 

It was my opinion after having warned you about that prior to that, having worked 

for a contractor on our site, which is annoying to me to start with. We hire people 

to work for us, we want them to perform their work and you deprived us of your 

work that day. And to me, that was very irritating, and time for a change. 

Tr. 252. McMichael’s opinion, directed to Turner, “you could have scheduled your blood 

pressure test some other time and interrupted your work with ICS, your part-time job, and 

provided service for us that day,” is further indication that, despite National Cement’s 

authorization for Turner’s outside work, McMichael viewed it with contempt. Tr. 334. At 

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Turner’s suggestion to McMichael that firing him was unreasonable given that he, Turner, had 

offered to return to work on June 14, if needed, this was McMichael’s response: 

I’ll repeat again. We do not tolerate somebody working for a subcontractor at 

National Cement Services. I felt that you should have been coming in and doing 

some work for us. If you work for a subcontractor, it’s my opinion you should be 

able to work for us. 

Tr. 339; see Tr. 340-41 (McMichael’s testimony that, on a day that a National Cement employee 

requests time off, he should not be working for anyone else); see also Tr. 333 (McMichael’s 

testimony that, had Turner worked for National Cement on June 14, he would not have been 

fired for also working for ICS); Tr. 483 (Wetzel’s testimony that if Turner had come to work that 

day, there would not have been a problem). 

Finally, National Cement would not have been wise to Turner’s whereabouts without the 

help of informants. That several of Turner’s co-workers reported the Turner sighting at ICS to 

Wetzel suggests that Turner’s outside job was widely known to be a bone of contention, for 

whatever reason. Otherwise, it makes no sense for anyone to have chosen that particular day, 

when Turner had taken off from National Cement, to report Turner’s presence at ICS to his 

supervisor. It also suggests that Turner’s co-workers were likely trying to put his job in 

jeopardy, knew exactly when the opportunity presented itself, and seized it. Moreover, their 

conduct also suggests that Turner may have been viewed negatively by other employees, and 

lends credence to Wetzel’s hearsay testimony that other electricians had expressed dislike for 

working with Turner. 

In concluding that National Cement has prevailed under this alternative analysis, by 

presenting overwhelming evidence that McMichael’s irritation with ICS in general, and Turner’s 

work arrangement with ICS in particular, was of such magnitude that it would have motivated 

him to terminate Turner for the ICS incident alone, I have carefully reconsidered Turner’s 

pretextual arguments and reject them for lack of evidentiary support. 

VI. Pretext 

The majority directed that I consider, in determining whether Turner proved National 

Cement’s reason for his termination to be pretextual, that Turner was compliant with National 

Cement’s attendance policy pursuant to the negotiated labor agreement, that National Cement 

did not adhere to its attendance policy, and that Turner’s performance issues were not 

significant.

 In actuality, National Cement has never contended that Turner was not on pre-approved 

leave on June 14. Furthermore, Turner’s attendance record was never called into question by 

National Cement and, therefore, it is not an issue that is properly before me in this case. 

Likewise, the question of whether National Cement acted in accordance with its “no fault 

attendance” policy is not before me, for the reason that Turner was terminated for conduct other 

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than attendance-based infractions to which the disciplinary provisions set in place by the labor 

agreement would apply. See Tr. 271-72 (McMichael’s discussion of National Cement’s “no 

fault attendance” program); Tr. 219 (Russell’s testimony that the point system applies to 

attendance only). 

As has been discussed, Turner’s performance issues were Wetzel’s primary motivation in 

recommending Turner’s termination, but they played only a minor, secondary role in 

McMichael’s decision making. Without the documented “written verbals” considered in 

Turner’s personnel file and Wetzel’s discussion with McMichael about other performance 

deficiencies, McMichael would have terminated Turner anyway just for working at ICS. See 

Tr. 485-87 (Wetzel’s examples of Turner’s performance problems). 

Nothing in this decision is intended to suggest that National Cement’s treatment of 

Turner was anything less than heavy-handed and, for the most part, lacking in compassion. The 

record suggests that, based on the fact that Turner was viewed as a difficult employee, he was 

not going to get a break. It didn’t take much to push McMichael over the edge respecting his 

tolerance of Turner’s work arrangement at ICS, given his level of annoyance and absent 

encouragement from Turner’s supervisors to go easy on him. In fact, according to McMichael, if 

he had it to do over, he would fire Turner again. Tr. 334. Turner’s only protection under the 

Act, however, is his right to be free of retaliation for his legitimate safety related complaints. He 

is not protected from National Cement’s negative opinion of his personality, nor is he protected 

from National Cement’s objection to or intolerance of his outside employment. This is true no 

matter how unreasonable the reaction, as long as the operator’s motivation is unrelated to 

Turner’s right to reasonably complain. Here, the weight of the evidence supports a conclusion 

that fairness and leniency were given no consideration in the resolve to construe Turner’s June 

14 activities as a fireable offense, but neither were the safety concerns that Turner had brought to 

the operator’s attention in close proximity to the ICS incident. To conclude otherwise amounts 

to cherry-picking facts piecemeal, in order to construct a scenario that strays well beyond that 

which the record compels. Finally, I note that, as harsh as National Cement’s actions might 

appear, an arbitrator upheld Turner’s termination through the negotiated grievance process. Tr. 

289, 344. 

VII. Conclusion 

Based on a thorough review of the record, I conclude that Turner has failed to establish, 

by a preponderance of the evidence, that he was terminated for engaging in activity protected 

under section 105(c) of the Act. 

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ORDER 

Accordingly, it is ORDERED that Jayson Turner’s Discrimination Complaint against 

National Cement Company of California, Incorporated, is DISMISSED. 

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

Administrative Law Judge 

Distribution: (Certified Mail)
 

Jayson Turner, 2716 Arctic Drive, P.O. Box C, Pine Mountain, CA 93222
 

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, NW,
 

Suite 1000, Washington, DC 20006
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

December 21, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. VA 2009-99 

Petitioner, : A.C. No. 44-06045-169692 

: 

v. : 

: 

HUMPHREYS ENTERPRISES, INC., : 

Respondent. : Mine: No. 5 Strip 

DECISION 

Appearances: Francine A. Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, on behalf of the Petitioner; 

William J. Sturgill, Esq., Sturgill & Sturgill, Norton, Virginia, on behalf of the 

Respondent. 

Before: Judge Paez 

This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute is a single section 104(d)(1) citation 

issued to Humphreys Enterprises, Inc. (“Humphreys”), by an inspector with the Mine Safety and 

Health Administration (“MSHA”), alleging a violation of 30 C.F.R. § 77.1005(a) at 

Humphreys’s No. 5 Strip mine. Humphreys timely filed an answer and the case was assigned to 

me for hearing and decision. 

I. Statement of the Case 

Prior to the hearing, Humphreys filed a motion to compel production of MSHA’s special 

assessment sheet, which I denied as privileged by order dated December 23, 2010. Originally, 

the case contained two violations issued to Humphreys – Citation No. 6639082 and Order No. 

6639083. The parties settled Order No. 6639083, which I approved in my Decision Approving 

Partial Settlement issued on February 16, 2011. After issuing a rescheduling notice, a hearing on 

the merits of Citation No. 6639082 was held on February 24, 2011, in Big Stone Gap, Virginia. 

After its conclusion, the parties submitted written post-hearing briefs, as well as reply briefs. 

Citation No. 6639082 alleges a violation of the mandatory safety standard at 30 C.F.R. 

§ 77.1005(a). It was issued under section 104(d)(1) of the Mine Act and alleges that the citation 

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was not only a significant and substantial (“S&S”)1

 violation but also the result of the operator’s 

unwarrantable failure2 to comply with a mandatory safety standard promulgated under the Mine 

Act. Respondent disputes these allegations. The Secretary proposes an assessed penalty of 

$70,000.00 based on the above allegations. 

II. Issues 

The issues before me are (1) whether a violation of section 77.1005(a) occurred; (2) 

whether the alleged violation is S&S; (3) whether the alleged violation was the result of the 

operator’s unwarrantable failure; and (4) whether the proposed penalty is appropriate for any 

occurring violation. 

For the reasons stated below, I determine that Humphreys violated section 77.1005(a) 

and that the violation was both S&S and due to a high level of negligence by Humphreys. 

However, I conclude that the violation was not the result of Humphreys’s unwarrantable failure. 

III. Findings of Fact 

Humphreys runs the No. 2 facility in which its No. 5 section is a strip mining operation 

called the No. 5 Strip mine. At the No. 5 Strip mine, a driller machine is used to drill a hole in 

the ground down to where the coal seam is located. (Tr. 29.) In order to prepare the ground for 

drilling, the hill is “benched,” or flattened out to prepare for drilling and blasting. (Tr. 150–52.) 

The mine operator creates a pattern of holes then fills the holes with explosive materials. (Id.) 

The explosive materials are then ignited, resulting in a blast. (Id.) After the blast, the coal is 

collected and hauled away. 

The No. 5 Strip mine contains two seams of coal, the Morris seam and the Parsons seam. 

(Tr. 17.) These two seams were being mined on a hill. The Morris seam is located higher on the 

hill than the Parsons seam. (Id.) At the time this citation was issued, Humphreys had “stripped” 

the Morris seam. (Id.; Gov’t Ex. 4). The Parsons seam was located roughly halfway up the hill. 

(Tr. 20; Gov’t Ex. 4.) Humphreys had only partially stripped the Parsons seam. (Tr. 17.) The 

part of the hill where the Parsons seam was located had been flattened out to the point that 

machinery could drive on it safely. (Tr. 20.) However, an area above the Parsons seam between 

1

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that “could significantly and substantially 

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

2

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 

30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused 

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

standards.” 

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the stripped Morris seam and the Parsons seam was covered with spoil3

 and dead trees. (Tr. 18.) 

Below the Parsons seam, farther down the hill, was a highwall. (Tr. 19.) The highwall created a 

ledge with a fifty-foot drop from the ledge of the highwall to solid ground at the bottom. (Tr. 

48.) 

On August 26, 2008, MSHA Inspector Wade Gardner was conducting a routine 

inspection of the No. 5 Strip mine. (Tr. 17; Gov’t Ex. 1.) As an inspector, Gardner is a 

specialist in health and safety with MSHA, and he conducts regular safety inspections. (Tr. 15.) 

Gardner has a total of forty-six years in the mining industry, and has spent the last thirty-six 

years working for MSHA. (Id.) In that time, he has conducted over one hundred accident 

investigations. (Tr. 16.) 

The August 27 citation at issue in this case is based on an earlier citation Gardner issued 

during his August 26 inspection. Gardner issued Citation No. 6639078 on August 26 due to 

loose spoil material and trees located above the Parsons level.4 (Tr. 23; Gov’t Ex. 1.) Gardner 

was concerned that loose spoil material could roll down the hill and land on miners working the 

Parsons seam. (Tr. 25.) Gardner discussed Citation No. 6639078 with Haskel Wells, the dayshift foreman. (Tr. 25, 123–24.) During this discussion, Gardner told Wells that the loose spoil 

made the cited area unsafe for dozer operations, and a “dozer won’t stay up there.” (Tr. 32.) 

Wells said he would have employees “berm off” the area and “not work in that area no more.” 

(Tr. 26.) Wells passed along this information to James “Mike” Thomas, president of Humphreys 

Enterprises. (Tr. 149–50.) The area was then bermed off. (Tr. 114, 124.) 

During the conversation regarding Citation No. 6639078, Wells referenced a different 

area of the hill to the left of the cited area and asked Gardner if employees could continue 

stripping that area. (Tr. 28; Gov’t Ex. 4.) Wells wanted to have a dozer bench this different area 

to prepare for further drilling and shooting. (Tr. 128–129.) Gardner inspected this different area 

of the hill, concluded it appeared to be safe, and told Wells the area was safe and that the 

operator could work there. (Tr. 28–29.) This different area had “natural ground” in that it was 

not covered in spoil. (Tr. 151.) Wells testified that Gardner had told him the operator must 

remove a group of trees in order to be allowed to work in the safe area. (Tr. 139, 142.) 

After the berm had been built, Rex Strong, the day-shift dozer operator, spoke with Wells 

about the area cited as hazardous. Strong had been the dozer operator for the day shift at 

Humphreys for thirty-six years. (Tr. 112.) Wells wanted Strong to drive the dozer up an old 

logging road to the top of the hill then descend the hill in the dozer in order to remove a group of 

dead trees located just above the Parsons seam. (Tr. 31, 113.) Strong told Wells he did not feel 

3

 “Spoil” or “shot rock” is material that has been loosened by strip mining operations. 

Essentially, spoil is loose, unstable earthen material that sits atop the unblasted or “natural” 

earth. (Tr. 31–32.) 

4

 Citation No. 6639078 was settled prior to hearing as set forth in my Decision Approving 

Settlement in Docket No. VA 2009-68 dated June 24, 2010. 

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comfortable taking the dozer over that route, as he would have to drive over unstable spoil 

material.5 (Tr. 113.) Wells then told Strong to take the dozer to the area above the Parsons 

seam. (Tr. 117–18). Strong was to use the dozer to bench an area above the Parsons seam. (Tr. 

15, 151.) Strong followed these instructions and took the dozer to the top of the hill to search for 

the top of the Parsons seam. (Tr. 117–18.) In doing this, Strong stayed on natural ground and 

did not enter the area that had been cited as hazardous. (Tr. 116, 117–18, 154). 

Billy Johnson, the night-shift dozer operator, took over operation of the dozer after 

Strong’s shift ended. When Johnson arrived to work on the evening of August 26, Strong told 

Johnson (1) that he [Strong] had been asked to bench around the top of the Parsons seam and to 

remove some trees and (2) that Johnson should continue the work. (Tr. 95.) David Meade, the 

night-shift foreman, confirmed that Johnson was to bench around toward the Parsons seam and 

remove some trees with the dozer. (Tr. 96.) 

The night of August 26–27 was dark and rainy, and a heavy fog rolled in, yet Johnson 

attempted to operate the dozer in compliance with Meade’s directions. (Tr. 41, 104.) Johnson 

initially had trouble locating the Parsons seam; indeed, he called Strong at home that night and 

told him he had moved the dozer “a couple of hundred feet or further” from where Strong had 

stopped at the end of his shift, but he could not find the Parsons seam. (Tr. 98.) Strong told 

Johnson that the seam was probably farther up the hill. (Tr. 98–99.) Johnson believed Strong 

told him that he needed to be in the area where “overburden had been dumped and the trees were 

knocked down.” (Tr. 99.) Johnson then moved the dozer up the hill and began benching around 

the area where the dozer eventually became stuck. (Tr. 101.) Johnson attempted to move a 

group of trees with the dozer’s blade, but the trees would not move. Johnson repositioned the 

dozer and attempted to move the trees again. (Id.) He put the left side of the dozer blade against 

the trees and raised the blade. (Tr. 102.) As he accelerated forward, the dozer spun around so 

that it was parallel to the highwall. (Id.) The dozer slid roughly two feet. (Tr. 106–07.) 

Johnson then put the dozer in reverse, but the dozer tilted so that its base was uneven. (Id.) 

Johnson then concluded the dozer was stuck, so he put the dozer in park, gathered his 

belongings, and exited the dozer. (Id.) Though the dozer spun and tilted, Johnson testified that 

he never lost control of the dozer because the dozer was moving very slowly and he could 

anticipate how the dozer would react. (Tr. 103.) 

Gary Ring, the night-shift coordinator, then left Wells a message during the night of 

August 26–27, informing Wells that “a tractor,” the dozer, was stuck and that night-shift 

personnel were going to leave the tractor until morning. (Tr. 125–26.) When Wells arrived at 

work the next morning, he inspected the dozer Johnson had abandoned. (Tr. 126.) According to 

Wells, he “made sure it was in a safe area where I wasn’t putting myself in peril” and then told 

5

 Strong assumed that Wells meant he should use the shortest route from the logging road 

to the group of dead trees Wells wanted removed. (Tr. 115.) Taking the shortest route would 

cause Strong to drive through the area cited as hazardous. (Tr. 115–16.) Strong was never told 

by Wells to take that route, but Strong “assumed that would be the way [Wells] wanted me to 

go.” (Tr. 115.) 

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the day-shift coordinator to send the backhoe to retrieve the dozer. (Id.) Wells and Strong, 

along with Steve Bolling, a member of the construction crew, attempted to remove the dozer 

using another tractor. (Tr. 127.) 

Gardner returned to the mine on August 27 while Wells and his crew were attempting to 

recover the dozer.6 (Tr. 128.) Gardner went to the top of the hill to the Morris seam level and 

spoke to Wells. (Tr. 34.) Gardner told Wells that the dozer was in the area Gardner had 

forbidden a dozer to go. (Id.) Wells asked Gardner if he was sure the dozer was in the cited 

area, and Gardner replied that he was sure. (Id.) Gardner then gave Wells a verbal order to 

cease operations in the area. (Tr. 35.) Additionally, Gardner testified that Thomas stated he was 

glad Johnson had not driven to the group of trees, as Thomas was sure the dozer could not “stay 

on there if he got in the trees.” (Tr. 36, 62–63.) Thomas does not recall making this statement 

but did testify he was glad Johnson had not taken the dozer any farther because “it was in an 

area, he had gone too far south of where we really wanted to be.” (Tr. 153.) 

Gardner left the mine around 10:00 a.m. and returned around 4:15 p.m. (Tr. 37–38.) 

Thomas Bower, another MSHA inspector, returned to the mine with Gardner to assist with the 

investigation. (Tr. 84–85.) Gardner spoke with Wells shortly after Gardner returned to the 

mine. According to Gardner, Wells told Gardner, “Mike Thomas, the president, told me to put a 

dozer up there.” (Tr. 38.) Thomas’s request was not noted in the pre-shift report book, and 

Gardner told Wells to make a note of Thomas’s statement.7 (Id.) Wells agreed that the 

statement he wrote in the pre-shift report book was factually correct. (Tr. 132.) According to 

Wells, the instructions he received from Thomas were not incompatible with Gardner’s order; 

that is, that Thomas instructed the dozer to work in an area deemed safe by Gardner. (Tr. 133.) 

After concluding the investigation, Gardner issued Citation No. 6639082, alleging a 

violation of section 77.1005(a). (Gov’t Ex. 1.) The citation states as follows: 

6

 The dozer was eventually removed on September 3, the next work day following the 

Labor Day holiday weekend. (Tr. 80–81.) Humphreys’s workers first “ramped up” material 

below the dozer and then drove the dozer down the earthen ramp. (Tr. 155.) 

7

 According to Gardner, Wells wrote a statement in the book and then showed it to 

Gardner. Wells wrote as follows: 

I was instructed by Mike Thomas to cut a bench around, above top Parson’s to 

eliminate the trees from off the wall. I told Mr. Thomas that the Federal Inspector 

had written this section of wall, and we had barricaded by berm! He instructed 

Rex Strong to go above wall and start the bench to remove trees. He contacted 

me on company radio and instructed me to have second shift continue. 

(Gov’t Ex. 3.) Wells testified that Gardner “told me to put it in here, to word this the way I did. 

He said, ‘this will cover you, by wording it, putting it in here in this form.’” (Tr. 132.) 

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An unsafe act was conducted in a hazardous area when the certified 

foreman told the Dozer Operator . . . to cut a bench in the middle of a spoil pile 

above the existing highwall that was previously cited for hazardous conditions 

including loose unconsolidated material and overhanging trees directly above the 

Parsons Coal Seam. . . . A safe means was not provided for performing this work. 

The day-shift foreman was instructed not to have a dozer upon the loose material 

that it was not stable enough for a dozer to operate. The day-shift foreman stated 

that his supervisor Mike Thomas President of the Operations instructed him to put 

a dozer up on the dangerous spoil. During the time that the unsafe act was 

conducted a serious accident has occurred. The dozer operator lost control of his 

dozer while operating in this dangerous spoil in dense fog and rainy conditions. 

The dozer ended up sliding down to the edge of the top of the highwall where 

there is an approximate 50 ft. drop and ended up abandoning the dozer. 

(Gov’t Ex. 1.) 

IV. Principles of Law 

A. 30 C.F.R. § 77.1005(a) 

Section 77.1005(a) states as follows: “Hazardous areas shall be scaled before other work 

is performed in the hazardous area. When scaling of highwalls is necessary to correct conditions 

that are hazardous to persons in the area, a safe means shall be provided for performing such 

work.” 30 C.F.R. § 77.1005(a). 

The Mine Act establishes strict operator liability for the conduct of individual miners and 

contractors. See Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 155 (D.C. Cir. 2006) 

(rejecting operator’s argument it cannot be held liable for an independent contractor’s violations 

because Mine Act is a strict liability statute); Musser Eng’g, Inc., 32 FMSHRC 1257, 1272 (Oct. 

2010) (“Because the Mine Act is a strict liability statute, an operator is liable if a violation of a 

mandatory safety standard occurs, regardless of the level of fault.”) (citations omitted). The 

Commission has found that “operator[] fault or lack thereof, rather than being a determinant of 

liability, is a factor to be considered in assessing a civil penalty.” Asarco, Inc.-Nw. Mining 

Dep’t, 8 FMSHRC 1632, 1636 (Nov. 1986), aff’d sub nom. Asarco, Inc.-Nw. Mining Dep’t v. 

FMSHRC, 868 F.2d 1195 (10th Cir. 1989). 

B. Establishing an S&S Violation 

The Commission has found that a violation is S&S “if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). To establish a violation as being S&S, the Secretary must 

show “(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 

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likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature.” Mathies Coal Co., 6 

FMSHRC 1, 3–4 (Jan. 1984). The Commission has held that “the inspector’s independent 

judgment is an important element in making significant and substantial findings.” Cement Div., 

Nat’l Gypsum Co., 3 FMSHRC at 825–26; Mathies, 6 FMSHRC at 5. 

C. Establishing Unwarrantable Failure 

In Emery Mining, the Commission defined unwarrantable failure as “aggravated conduct 

constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec. 1987). 

Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; San Juan 

Coal Co., 29 FMSHRC 125, 128 (March 2007); Rochester & Pittsburgh Coal Co., 13 FMSHRC 

189, 194 (Feb. 1991). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist. 

Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). These 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 are necessary for compliance, the operator’s efforts in 

abating the violative condition, whether the violation is obvious or poses a high degree of 

danger, and the operator’s knowledge of the existence of the violation. San Juan Coal Co., 

29 FMSHRC at 128, citing Consolidation Coal Co., 23 FMSHRC at 593. All of the relevant 

facts and circumstances of each case must be examined to determine if an actor’s conduct is 

aggravated or whether mitigating circumstances exist. Consolidation Coal Co., 22 FMSHRC 

340, 353 (Mar. 2000). 

V. Legal Analysis, Further Findings of Fact, and Conclusions of Law 

A. Violation of 30 C.F.R. § 77.1005(a) 

Section 77.1005(a) has several requirements. In order for a violation to have occurred, 

the area must have been hazardous. The Secretary must then show either (1) that work was 

performed in the hazardous area before the area was scaled, or (2) though the hazardous area was 

scaled, no safe means to and from the hazardous area was provided. 

In this case, the cited area on the hill was hazardous. Gardner had issued Citation No. 

6639078 because an area in between the Parsons seam and the Morris seam was unsafe. (Tr. 23; 

Gov’t Ex. 1.) The cited area was covered with spoil and dead trees. (Tr. 18; Gov’t Ex. 6.) The 

loose spoil material could fall down the hill and strike workers, and the spoil material also made 

the area unsafe for dozer operations. (Tr. 25, 32, 86–87, 113.) In addition, the highwall at the 

bottom of the hill created a ledge with a fifty-foot drop. (Tr. 48.) 

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The dozer was also in the hazardous area before the area was scaled. Gardner, Johnson, 

and Thomas all concluded that the dozer was located in the hazardous area. (Tr. 34, 99, 154.) 

Their testimony is corroborated by Government Exhibits 5, 6, and 7, which show the dozer was 

abandoned on a part of the hill that was steeply slanted and covered in loose spoil material.8 

Evidence showing the dozer in the hazardous area was uncontested by Humphreys.9 The 

evidence also shows that the dozer was being used to bench an area of the mine site in order to 

continue mining. (Tr. 117, 150.) Based on the evidence, I find that Johnson was instructed to 

use the dozer to bench towards the top of the Parsons seam and was not instructed to use the 

dozer to scale the area cited as hazardous. Nonetheless, the dozer was found in the hazardous 

area and had been performing work other than scaling. Therefore, I conclude that a violation of 

section 77.1005(a) occurred. 

Alternatively, even assuming the dozer was being used for scaling the hazardous area, a 

safe means for performing such work was not provided. The inspectors and miners agreed that 

the loose spoil material made the area unsafe for dozer operation. (Tr. 32, 113.) Those fears 

proved to be well founded; when Johnson took the dozer into the hazardous area, the dozer spun 

around, slid two feet down the hill, and got stuck. (Tr. 102–07.) Because the dozer could not 

operate safely within the hazardous area, a safe means of access was not provided for any scaling 

activities that took place, thus establishing a violation of section 77.1005(a). 

B. S&S Determination 

As articulated above, the violation of section 77.1005(a) establishes the first element of 

the Mathies test for an S&S violation. Therefore, to establish that the violation was S&S under 

the Mine Act, the Secretary must show a discrete safety hazard contributed to by the violation, 

and a reasonable likelihood that the hazard contributed to will result in an injury of a reasonably 

serious nature. 

The Secretary has provided evidence to show that operating the dozer in the cited area 

contributed to a discrete safety hazard. Gardner, Strong, and Thomas all testified that operating 

a dozer in the hazardous area was unsafe. (Tr. 32, 52, 114, 153.) The loose spoil material did, in 

fact, impede Johnson’s operation of the dozer on the night shift. I therefore determine that the 

Secretary has established that the violation contributed to a discrete safety hazard. 

8

 Government Exhibit 5 is a picture taken during the retrieval of the dozer. The road that 

is depicted in Government Exhibit 5 was built during the retrieval process and was not there 

when the dozer was abandoned. (Tr. 155.) 

9

 While Wells stated he believed he was not in danger when inspecting the abandoned 

dozer, he did not testify that the dozer was not in an area in which the slant of the hill and the 

loose material covering the ground made mining operations hazardous. (Tr. 126.) Moreover, 

Wells appears to have been confused as to what area Gardner had cited as hazardous. When 

Gardner told him the dozer had been abandoned in the area he cited as hazardous, Wells asked 

whether Gardner was sure. (Tr. 34.) 

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The Secretary has also shown that operating the dozer in the cited area was reasonably 

likely to result in a serious injury. Gardner testified that it was “highly likely” that the dozer 

would slide down the hill and fall off the high wall, or that the dozer operator would be struck by 

loose spoil material. (Tr. 52.) Gardner testified that the risk of accident was highly likely 

because of the conditions in which the dozer was being operated, including the fact that it was a 

dark and rainy night, the dozer operator was shrouded in fog, and the dozer operator could not 

see what the material above him was doing. (Id.) Based upon his experience investigating 

accidents where dozers have fallen off highwalls, given the fifty-foot drop, Gardner concluded 

that the dozer operator could have been killed if his dozer “came off the wall.” (Tr. 47–48.) 

Gardner has also seen injuries such as punctured lungs, head injuries and broken limbs in similar 

accidents. 

Considering all of this, I conclude that the violation of section 77.1005(a) was S&S. 

C. Negligence and Unwarrantable Failure Determination 

After considering the evidence presented in this case, it appears that Johnson’s presence 

in the cited area was due to his failure to fully comprehend where he was operating the dozer and 

his misunderstanding of where he was in relation to the area cited as hazardous. Simply put, 

Johnson got lost, and ended up in the cited area. 

Gardner told Wells that Wells could have employees work in an area near the area 

Gardner had cited as being hazardous. Gardner initially told Wells that the area covered in spoil 

was hazardous. Wells agreed to keep employees out of the hazardous area; this agreement was 

underscored by the fact that he had the area bermed off during the day shift. (Tr. 26, 114.) 

Gardner then spoke to Wells about a different area of the mine and told Wells it was safe to use a 

dozer to bench an area near the cited area. (Tr. 28–30.) At the hearing, Gardner pointed out this 

safe area as “to the far left” and near the clump of trees in Government Exhibit 7. (Tr. 28; Gov’t 

Ex. 7.) Upon examining Government Exhibit 7, as well as Government Exhibits 4 and 6, the 

area where Gardner told Wells he could work is to the left and relatively close in distance to the 

area cited as hazardous. After being informed of Wells’s discussion with Gardner, Thomas told 

Wells to instruct the dozer operators to work in the area Gardner had said was safe, the area with 

natural ground, situated above the area cited as hazardous.10 (Tr. 151.) Thomas’s account is 

corroborated by Strong. Strong was instructed to bench the top of the Parsons seam, which he 

did during the later part of his shift. (Tr. 116–17.) Strong was aware of what constituted the 

area cited as hazardous, as he had constructed the berm during the first part of his shift. While 

10 This is notwithstanding Wells’s statement, as recorded in the pre-shift book, that 

Thomas ordered Wells to put a dozer in the area above the highwall. The statement as written in 

the pre-shift book is not dispositive, as it does not speak to whether Thomas told Wells to put a 

dozer in the area cited as hazardous. The statement in the pre-shift book merely says that 

Thomas instructed Strong to go farther up the hill than where the cited area was located and to 

bench the area. This account is consistent with Strong’s and Wells’s sworn testimony at hearing 

that Thomas instructed the dozer to bench the area designated as safe by Gardner. 

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operating the dozer to bench the top of the Parsons seam, Strong stayed on natural ground and 

did not enter the cited area. (Id.) 

If this story closed with the end of Strong’s shift, then no violation would have occurred. 

However, Johnson took over dozer operations and attempted to continue Strong’s work. Shortly 

after arriving to work for his shift at 4:30 p.m., Johnson spoke to Strong and Meade; both men 

told Johnson he was to bench toward the top of the Parsons seam. (Tr. 95–96.) Johnson then 

worked the dozer in a “hollow” beyond the area depicted by the exhibits presented at trial. (Tr. 

98.) Afterwards, he operated the dozer for a period of time without being able to find the 

Parsons seam. (Id.) Johnson called Strong at night and told Strong he had been unable to find 

the Parsons seam, though he had moved a “couple of hundred feet or further” from where Strong 

had been operating the dozer. (Id.) It appears that Johnson was farther down the hill than he 

thought, as he asked Strong whether the Parsons seam could be located farther up the hill. (Id.) 

Strong agreed with Johnson and told him that the Parsons seam probably was located farther up 

the hill. (Id.) Johnson then began moving the dozer up the hill. While he was speaking to 

Johnson before his shift, Strong told Johnson he was also to remove some trees.11 (Tr. 95.) 

When Johnson moved the dozer up the hill that night, he saw a group of trees located next to 

where the dozer was eventually abandoned. Johnson believed this group of trees to be the trees 

he was told by Strong to remove. (Id.) It was only then, after Johnson had attempted to find the 

Parsons seam, moved several hundred feet from where Strong had been working, and mistakenly 

identified a group of trees, that Johnson entered the hazardous area and the dozer became stuck. 

Considering this evidence, I conclude that the Secretary has not established the violation 

was the result of Respondent’s unwarrantable failure. In reaching this conclusion, I do not take 

lightly the evidence presented as to the real danger that existed that night. The violative 

condition of unstable spoil was extensive and posed a high degree of danger for the dozer 

operator. It is beyond dispute that Gardner told Wells that a dozer should not be operated in the 

hazardous area. (Tr. 32.) Also, both dozer operators expressed concern over the idea of 

operating the dozer on the spoil material. (Tr. 86, 114.) Additionally, as noted above, the 

violation could reasonably result in a serious injury or death from a possible fifty-foot fall off the 

top of the highwall. However, the operator was not placed on notice that greater efforts were 

necessary for compliance, nor did the operator have knowledge of the existence of the violation, 

as Humphreys bermed off the area in order to comply with Gardner’s instructions to keep 

workers out of the hazardous area. I determine that Humphreys did not have knowledge that 

Johnson was operating the dozer in an unsafe area until the operator learned that the dozer was 

stuck and had been abandoned in the cited area. 

I also determine that the Secretary has not shown that the violation existed for a 

significant length of time. As detailed above, Johnson spent a relatively small part of his shift 

searching for the Parsons seam outside of the hazardous area. Moreover, both Gardner and 

11 Gardner had told Wells that it was safe to bench near a group of trees. (Tr. 28.) 

Additionally, Wells testified that Gardner told them they must remove a group of trees from the 

safe area. (Tr. 139, 142.) 

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Strong agreed that a dozer could not safely operate in the cited area due to the presence of spoil 

material. Gardner and Strong were both proven correct, as the dozer spun, slid and became stuck 

when Johnson mistakenly entered the cited area. I therefore find that the violation did not exist 

for a significant period of time. 

Additionally, it is undisputed that the operator immediately worked to abate the violative 

condition. Gardner testified that, when he arrived at the mine and saw where the dozer was 

abandoned, he instructed Wells to cease operations on removing the dozer. (Tr. 34–35.) 

Humphreys eventually built an earthen road, and the dozer was safely driven down the mountain 

in accordance with an action plan submitted to MSHA. (Tr. 155; Gov’t Ex. 3 at 2.) I find that 

the operator took every effort to safely abate the violation. 

Considering all of these factors, I determine the Secretary has not shown that Humphreys 

exhibited the kind of reckless disregard, intentional misconduct, indifference or a serious lack of 

reasonable care that amounts to unwarrantable failure. Therefore, I conclude that the violation 

was not the result of the operator’s unwarrantable failure. 

However, Gardner determined the violation was a result of high negligence, and the 

evidence supports his determination. The night of August 26–27 was dark and rainy. (Tr. 41, 

104.) The presence of fog was not uncommon at the strip mine, especially during or after rain 

(Tr. 79); and a dense fog did, in fact, cover the area while Johnson was operating the dozer. (Tr. 

48, 104.) Moreover, Wells had been warned specifically that the loose spoil made the cited area 

unsafe for dozer operations. (Tr. 32, 113.) Knowing all of this, Thomas, Wells, and Meade still 

instructed the dozer to operate in the “safe” area near the cited, hazardous area on a rainy night 

made darker and more dangerous by clouds and dense fog. A reasonable operator should have 

known that these dark, wet conditions would make it difficult for any dozer operator to 

distinguish between the safe and unsafe areas on the hill. Ordering Johnson to work in such 

conditions, while knowing a mistake could result in the possibility of a fifty-foot fall with a piece 

of heavy equipment, should have been enough for Humphreys’s management to exercise more 

caution while Johnson was working near the cited area. Indeed, Johnson was concerned enough 

about where he was asked to work that he called Strong, the day-shift dozer operator, to double 

check where he should be working. Management failed to take reasonable measures to ensure 

Johnson worked in the correct area. I therefore determine that Humphreys demonstrated a high 

degree of negligence with regard to this violation. 

D. Penalty 

Section 110(i) of the Mine Act gives the Commission authority to assess civil penalties. 

30 U.S.C. § 820(i). The Mine Act requires the Commission and its Judges to consider the 

following six factors when assessing a civil penalty: (1) the operator’s history of previous 

violations, (2) the appropriateness of the penalty to the size of the operator’s business, (3) the 

negligence of the operator, (4) the effect of the penalty on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the operator’s demonstrated good faith. Id. 

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The Secretary has directed my attention to MSHA’s Data Retrieval System for evidence 

regarding Humphreys’s history of violations. (Pet. for Assessment of Civil Penalty 2.) MSHA’s 

Data Retrieval System shows twenty-eight violations over a fifteen-month period preceding this 

violation, fourteen of which were assessed as S&S violations. None of these previous citations 

alleged the standard breached in Citation No. 6639082. In considering this history along with 

the other statutory factors, I take special note that the Secretary established this section 

77.1005(a) violation was the result of Humphreys’s high degree of negligence. I have also noted 

that Humphreys presented no evidence that this penalty will affect its ability to continue in 

business. Therefore, I conclude that a penalty of $30,000.00 is appropriate given the violation 

history, the size of the mine, Humphreys’s high negligence, this violation’s serious gravity 

implicating the risk of fatal injury, and Humphreys’s good faith abatement of the violation. 

Accordingly, I hereby assess a civil penalty of $30,000.00. 

VI. Order 

In light of the foregoing, it is hereby ORDERED that Citation No. 6639082 be modified 

to a section 104(a) citation, thus removing the unwarrantable failure designation. It is further 

ORDERED that Citation No. 6639082 is affirmed in all other respects. 

Within 40 days of the date of this decision, Humphreys is ORDERED to pay a civil 

penalty of $30,000.00 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Francine Serafin, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 Wilson 

Boulevard, 22nd Floor West, Arlington, VA 22209-2247 

William J. Sturgill, Esq., Sturgill & Sturgill, 440 Park Avenue, N.W., P.O. Box 770, Norton, VA 

24273 

/rar 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

December 22, 2011 

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING
 

Contestant, : 

: Docket No. SE 2011-407-R 

: Order No. 7699793; 02/14/2011 

v. : 

: 

: 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Mine: No. 7 Mine 

Respondent. : Mine ID: 01-01401 

DECISION 

Appearances: Carla Casas, Office of the Solicitor, U.S. Department of Labor, Atlanta, 

Georgia for the Respondent,. 

John Holmes, Maynard, Cooper and Gale, P.C. Birmingham, Alabama for 

the Contestant. 

Before: Judge Miller 

This case is before me upon Contestant=s request for a hearing to challenge Order number 

7699793 issued by the Secretary of Labor, acting through the Mine Safety and Health 

Administration, against Jim Walter Resources, Inc., pursuant to sections 105 and 107 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. '' 815 and 820 (the AAct@ or the AMine 

Act@). The parties presented testimony and evidence at a hearing held on November 9, 2011 in 

Birmingham, Alabama. 

I. STATEMENT OF FACTS 

Jim Walter Resources, Inc. (AJWR@) operates the No. 7 Mine, an underground coal mine 

located in Brookwood, Alabama. The parties have stipulated that the mine is subject to the 

jurisdiction of the Mine Safety and Health Act of 1977, as amended, that JWR is an operator of a 

coal mine, and that the ALJ has jurisdiction to hear this matter. Sec=y Stip 1-7; (Tr. 9). The 

mine is subject to regular inspections by the Secretary=s Mine Safety and Health Administration 

(AMSHA@) pursuant to section 103(a) of the Act, 30 U.S.C. ' 813(a), as well as five day spot 

inspections due to the quantity of methane liberated at the mine. (Tr. 34). 

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On February 14, 2011, MSHA inspector Alveriado Lee Getter issued imminent danger 

order number 7699793, as follows: 

This imminent danger order is issued to remove all mine personnel 

from the area of the last open crosscut intersection (spad 23456) in 

the No. 2 entry of the No. 8 section (MMU-008-0). When checked 

a cavity in the roof measuring approximately 10 feet wide by 15 

feet long with a smaller cavity in the very top measuring 3 feet in 

diameter by 18 inches deep allowed methane levels to reach 5.6%. 

Power was immediately removed from the section and all miners 

were removed from the area except those needed to improve 

ventilation. 

In addition to the imminent danger order, Getter simultaneously issued a citation for a 

violation of the ventilation control plan. JWR did not contest the S&S violation that was issued 

and, therefore, JWR has agreed that an S&S violation ocurred as a result of the conditions 

observed by Getter. Sec=y Ex. 2; (Tr. 22-23, 32). Hence, the mine has conceded that, as a result 

of the violation, which led to a methane accumulation, there was a reasonable likelihood that a 

serious injury would occur. However, the mine does not admit that an imminent danger existed. 

There is no dispute that the level of methane, 5.6 percent, was present as set forth in Getter=s 

order. (Tr. 24) 

Inspector Getter is currently an acting field office supervisor. Prior to such, he worked at 

the MSHA district office as a ventilation specialist, where he reviewed ventilation plans and 

worked with mines on issues involving ventilation and bleeder systems. He has been an 

inspector with MSHA for six years. He has had regular inspector training, accident investigation 

training, and annual ventilation training. He has conducted many inspections at the JWR mines, 

particularly the No. 7 mine, and is familiar with the ventilation plan for the JWR No. 7 mine. 

The JWR No. 7 mine is a gassy mine that liberates more than one million cubic feet of 

methane in a 24 hour period and, as a result, is on a five day spot inspection. (Tr. 34). The mine 

has had a problem with ignitions, particularly in the one year period preceding the subject 

imminent danger order issued by Getter. Getter was aware of the prior ignitions at the mine as a 

result of discussions held in the MSHA office. Consequently, there was a heightened awareness 

at the mine due to the frequent, unforeseen ignitions of methane. The ignitions, which began in 

January 2010, continued until the date of the order on February 14, 2011. Sec=y Ex. 5. Five 

ignitions, which occurred within a short period of time, were caused by the continuous miner 

drilling into hard rock in the No. 8 section. ( Tr. 44). 

Getter was at the No. 7 mine on February 14, 2011 to conduct a spot inspection and, after 

reviewing the books and speaking with representatives of the mine, he traveled to the area where 

production was scheduled for the day. Vicki Dempsey, a health specialist, was also at the mine 

for the purpose of collecting dust samples in the production area of the No. 8 section. As Getter 

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approached the No. 8 section, he could hear the energized continuous miner and observed that 

there was a miner operator, a helper, an electrician, two roof bolters, two shuttle car operators, 

and a supervisor; at least 10-12 persons, working in the area. The continuous mining machine 

was at the face of the No. 2 entry, and the roof bolter was nearby in the last open crosscut 

between the Nos. 2 and 3 entries. Getter created a diagram in his inspection notes that depicts 

the location of the various pieces of equipment in the area. Sec=y Ex. 1 p. 4; (Tr. 50-51). 

As Getter initially entered the area, he noticed that, due to sloughing, there was a loose 

rib with a dangling pin. He advised the miners on the section to have a look at the loose area 

before it became a hazard and a possible violation. (Tr. 51). The supervisor agreed and 

instructed the operator to back the miner out of position at the face in order to allow the roof 

bolter to pass. Once the continuous mining machine was backed out, Getter noticed and then 

approached a roof cavity that was located just behind where the miner had been, near the 

intersection, about 40 feet back from the face. Getter asked the miner operator to use his probe 

to take an air reading in the cavity. The cavity was 15 feet by 10 feet wide, and contained 

another smaller cavity within it that was approximately 18 inches deep. (Tr. 52). In the area 

where the miners were working, the distance to roof line was approximately 7 to 7 1

/2 feet, and 

the cavity at the farthest point was 13 feet above the floor. Simple math indicates that the depth 

of the cavity was about 5 1

/2 feet, with 18 inches of that amount in the upper cavity. 

The miner operator raised the big-face methane detector and, before extending very far 

into the first, larger cavity, the methane reading shot up to 4.6 percent. The miner operator 

quickly pulled the probe back in order to avoid the possibility of burning out the detector in the 

face of quickly rising gas levels. The miner operator attempted a methane reading twice. The 

first time he attempted a reading, the probe was about half way into the main cavity when it shot 

up. The second time, the detector was pushed to the edge of the second cavity, which would 

have been about four feet above the roof line, and the reading showed at least 5.6 percent 

methane. Getter observed a greater reading at one point but settled on the 5.6 percent methane 

concentration, as observed by the miner operator. (Tr. 58). Getter testified that he observed a 

higher reading and he believed that the methane may have actually been at a greater level due to 

the height of the cavity. He confirmed his belief with a bottle sample that showed a methane 

level of 9.110 percent. Sec=y Ex. 3; (Tr. 68). 

Getter explained that a methane concentration over 5 percent is in the explosive range. 

While methane may ignite at 1 percent, things change dramatically when the reading is over 5 

percent. There is no longer simply a danger of ignition. Rather, there is the potential to ignite an 

explosive mixture of methane and other gasses. With the high level of methane, everything 

becomes an ignition source. Getter explained that all that is needed for ignition is the slightest 

friction; even clothing static. (Tr. 60-61). The atmosphere is fragile in that range and when it is 

in the last open crosscut, with men and equipment working and actively mining, the danger is 

great. The working face was 40 feet from explosive mixture, and the mining machine was 

prepared to begin cutting coal. The continuous miner alone has many moving parts that are a 

source of sparks and heat. The roof bolter is the same, and it was energized and moving through 

the area to begin roof bolting a rib, the process of which can also be a source of sparks. If the 

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1 

bolter had pinned the area pointed out earlier by Getter, it would have been operating Aright next 

to this pocket of methane.@ (Tr. 63). In fact, Getter explained, the roof bolter is known to be one 

of the primary sources of ignitions in underground coal mines. Moreover, the last open cross cut 

is the busiest area, with many miners traveling in, out, and through the area, and is also an area 

with energized equipment and cables. A fall of roof can also serve as a source of ignition. 

Notably, a fall, which created the cavity, had occurred within the previous few days. Getter 

described the scene as Avery volatile@ and sensitive; Aa ticking time bomb.@ (Tr. 64). As a 

consequence, Getter verbally issued an imminent danger order, instructed the supervisor to 

power down the entire section and, with the exception of those needed to dilute the methane and 

return the section to a safer environment, removed the miners from the section. 

The crew began working to re-ventilate the cavity area and, in doing so, took a number of 

methane readings, all of which indicated methane at explosive levels. The mine eventually had 

to loosen the curtain that had been directing air to the cavity and place an additional piece of 

curtain to circulate an even greater volume of air up to the roof. With the additional ventilation 

to dilute the air in the cavity, it took approximately two hours to dilute the methane levels to 

below 1 percent.1 

The mine operator called a number of witnesses to describe what occurred during 

Getter=s inspection. For the most part, the witnesses agreed with Getter and with the fact that 

there was an explosive mixture of methane in the roof cavity. The witnesses explained that, as a 

result of a roof fall, the cavity had developed within the previous few days, and that on the shift 

prior to the subject shift the miners had problems with the methane concentration in the cavity. 

(Tr. 158, 202) A blower curtain had been installed to divert air to dilute the methane in the 

cavity. (Tr. 160). The witnesses explained that at least a portion of the cavity was rock, as 

opposed to coal, and at no time did a methane alarm sound. Moreover, they testified that there 

was not a concentration in the explosive range below the roof line of about seven feet off the 

floor. 

The JWR witnesses disagreed with Getter on how far into the cavity the monitor was 

placed before an explosive range of methane was detected. For example, the section 

coordinator, Woods, testified that he observed no elevated methane above 1 percent at the roof 

line, and that the higher concentrations were not reached until the probe entered the higher, 

smaller cavity, which would have been four feet above the roof line. Woods, who was 

responsible for checking the area prior to mining, had not used a probe on the preshift 

examination to check inside the cavity, but instead simply reached up as high as he could, maybe 

At one point the mine put forth the theory that one side of the curtain had been pulled 

down by the continuous miner ten minutes prior, thereby raising the methane levels to the 

explosive mixture observed by Getter. Given that it took nearly two hours and a new piece of 

curtain to reduce the levels below 1 percent, I give no credence to that theory. 

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7 or 8 feet off the ground, and found no methane problems. (Tr. 167). Still, Woods agreed that 

the methane levels were high and increased as the probe was lifted into the cavity. Langford, the 

miner operator, testified that he did his regular methane checks prior to starting the continuous 

miner and did not hear or see any alarm from a methane monitor on the day of the order. He 

agreed with Woods that the methane concentration was less than 1 percent below the roof line 

and that it went up to 4 or 5 percent in the upper cavity. Langford stood on the miner to take 

methane readings in the cavity as the miners attempted to dilute the methane, but it appears that 

no one measured the methane in the cavity prior to Getter=s arrival. Finally, the safety 

supervisor, Al England, disagreed with the designation of the situation as an imminent danger. 

He was not aware of any ignition sources, and the methane below the roof line was within 

permissible range. (Tr. 228). According to England, he observed the readings within the 

explosive level only after the readings were taken in the upper cavity. England further testified 

that, after learning of the 4.6 percent reading, he instructed the miner helper to go back to the 

power center and Aget somebody to knock the power off to the section . . . .@ (Tr. 228). England 

believed that he took the action prior to the issuance of the 107(a) order by Getter. 

Finally, the witnesses for JWR testified that they did not observe problems with the 

cables on the section or the continuous mining machine that would lead them to believe a spark 

would be generated. They did agree that a number of occurrences in the area, like cutting into 

rock or having an antenna scrape on the roof, or even a roof fall, can lead to an ignition. The 

three witnesses called to testify on behalf of JWR explained that, in their recollection, the section 

had not yet cut coal when Getter arrived. However, it is undisputed that the equipment was 

energized and the mine was preparing to produce coal. (Tr. 163) (Aby the time we got ready to 

start running . . .@). 

II. DISCUSSION AND CONCLUSIONS OF LAW 

On February 14, 2011, Inspector Getter issued Section 107(a) withdrawal, first verbally, 

and then Order No. 7699793 directing Jim Walters to cease mining operations in the referenced 

areas upon the basis of a measured methane concentration of 5.6 percent inside a roof cavity. 

The top of the cavity was located approximately 13 feet above the ground, and the distance from 

the ground to the primary roof line was 7 to 7 1

/2 feet, leaving a cavity of about 5 1/2 feet above 

the roof line. Section 107(a) of the Mine Act provides: 

If, upon any inspection or investigation of a coal or other mine 

which is subject to this Act, an authorized representative of the 

Secretary finds that an imminent danger exists, such representative 

shall determine the extent of the area of such mine throughout 

which the danger exists, and issue an order requiring the operator 

of such mine to cause all persons, except those referred to in 

section 104(c), to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the 

Secretary determines that such imminent danger and the conditions 

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or practices which caused such imminent danger no longer exist. 

The issuance of an order under this subsection shall not preclude 

the issuance of a citation under section 104 or the proposing of a 

penalty under section 110. 

30 U.S.C. ' 817(a). Section 3(j) of the Act defines Aimminent danger@ as the Aexistence of any 

condition or practice in a coal or other mine which could reasonably be expected to cause death 

or serious physical harm before such condition or practice can be abated.@ 30 U.S.C. ' 802(j). 

As previously noted, Section 107(a) of the Act provides for the issuance of an order requiring the 

withdrawal of persons in areas of a mine who are exposed to such an imminent danger. 

Imminent danger orders permit an inspector to remove miners 

immediately from a dangerous situation, without affording the 

operator the right of prior review, even where the mine operator 

did not create the danger and where the danger does not violate the 

Act or the Secretary=s regulations. This is an extraordinary power 

that is available only when the Aseriousness of the situation 

demands such immediate action.@

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting Sen. Rep. No. 91-411, 

reprinted in Senate Subcomm. On Labor, Comm. on Labor and Public Welfare, Part I 

Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 215 (1975). 

An imminent danger exists Awhen the condition or practice observed could reasonably be 

expected to cause death or serious physical harm to a miner if normal mining operations were 

permitted to proceed in the area before the dangerous condition is eliminated.@ Eastern 

Associated Coal Corporation v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974). The Seventh Circuit 

adopted the same interpretation in Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 33 (7th Cir. 1975). 

See also Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester & 

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)). While the concept of imminent 

danger is not limited to hazards that pose an immediate danger, Aan inspector must >find that the 

hazardous condition has a reasonable potential to cause death or serious injury within a short 

period of time.=@ Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quoting 

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991)). Inspectors must determine 

whether a hazard presents an imminent danger without delay, and a finding of an imminent 

danger must be supported Aunless there is evidence that [the inspector] had abused his discretion 

or authority.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164. While an inspector has 

considerable discretion in determining whether an imminent danger exists, that discretion is not 

without limits. An inspector must make a reasonable investigation of the facts, under the 

circumstances, and must make his determination on the basis of the facts known, or reasonably 

available to him. Island Creek Coal Co., 15 FMSHRC 339, 346-347 (March 1993). 

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An inspector Aabuses his discretion . . . when he orders the immediate withdrawal of 

miners under section 107(a) in circumstances where there is not an imminent threat to miners.@

Utah, Power & Light Co., 13 FMSHRC at 1622-23. In assessing an inspector=s exercise of his 

discretion, the focus is on Awhether the inspector made a reasonable investigation of the facts, 

under the circumstances, and whether the facts known to him, or reasonably available to him, 

supported the issuance of the imminent danger order.@ Wyoming Fuel Co., 14 FMSHRC 1282, 

1292 (Aug. 1992). 

In this case, Inspector Getter had inspected the No. 7 mine many times and was aware of 

the unusual number of ignitions at the mine in recent months and particularly in the No. 8 

section. He is a ventilation expert, and is aware that methane above 5 percent is volatile and 

explosive. Moreover, he was aware of the number of ignition sources in the area, including the 

energized continuous miner that either had been cutting at the face or was about to cut into the 

face, the energized roof bolter, the shuttle cars, and the energized cables. He believed, as he 

described on cross examination, that the cables have been known to create an arc that reaches as 

high as the roof. He also explained that static from clothes can act as a source of ignition. 

Getter was not aware that the machinery in the area had been inspected the night prior and no 

citations were issued for permissibility violations. However, even if he had known, he opined 

that it would have no effect on his reasoning regarding the imminence of the situation given the 

many pieces of machinery in the immediate area that were energized and moving. Getter also 

considered that cutting coal creates a source of ignition, as does roof bolting and loading coal 

into the shuttle cars. He reasoned that all these processes generate heat and are ignition sources 

for an explosive mixture of methane. Finally, Getter believed that the 5.6 percent was only the 

beginning, and that the mixture was of a greater concentration closer to top of the roof cavity. 

The explosive mixture of methane was located very near the face, in the area where there were 

many possible sources of ignition which would create an explosion. I find Inspector Getter to be 

convincing, reliable, and objective in his reasoning and more credible than any witness presented 

by the mine operator. I find his conclusions regarding the condition of the section and the 

volatile nature of the methane to be well reasoned and based upon his knowledge of the area and 

the volatile nature of methane at explosive levels. Getter adequately examined the area in order 

to gather sufficient evidence to reach his conclusion and issued the order based upon his good 

faith belief that in the continued course of mining, the methane would be part of an explosion 

that would lead to serious and fatal injuries. I agree with Getter that the seriousness of the 

situation demanded immediate action from the inspector. Hence, I find that the imminent danger 

order was properly issued. 

The mine raises two primary arguments to dispute the issuance of the order. First, it 

argues that there was no imminent danger because there were no ignition sources, and even if 

there were, the methane reached the explosive range only in the highest portion of the cavity, 

i.e., about 11 feet above the floor and beyond the reach of the possible sources of ignitions. 

Second, the mine argues that the order is redundant because the mine would have had to remove 

men and power from the section in order to comply with 30 C.F.R.' 75.323, which requires mine 

operators to de-energize equipment, withdraw workers, and make ventilation changes if methane 

at 1.5 percent is discovered. In raising this argument, JWR relies on Woods= testimony that, 

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given the level of methane, he removed the men from the area because he is required to do so by 

regulation. 

First, although JWR admitted a significant and substantial violation occurred as a result 

of the methane in the cavity, it denies that there was an ignition source nearby and, therefore, it 

argues that there was no Aimminence@ to the danger. While Getter testified that he heard the 

continuous miner operating as he entered the section, the witnesses for the mine testified that 

they had not yet started coal production when Getter arrived, but they were preparing to do so. 

The cavity was located near the No. 2 entry, in a very busy area, with equipment moving 

through, a continuous miner prepared to cut coal, and a roof bolter prepared for operation. There 

were shuttle cars being operated, and a flow of men and machines was moving through the area. 

The mine denies that any of these constitute a possible ignition source, or at a minimum, the 

ignition source would not reach the explosive mixture of methane above the roof line in the 

cavity. 

The mine argues that all equipment was in permissible condition, that the energized 

cables were not in an area near enough to the methane, and it was not likely that an ignition 

would occur. The mine cites Island Creek Coal Co., 15 FMSHRC 339 (1993), for the 

proposition that an ignition source must be present to support an imminent danger order. While, 

the mine does not deny that ignition sources may have been present in the No. 8 section, it is the 

mine=s position that none of those sources would be exposed to the high level of methane in the 

cavity and hence the exposure required by Island Creek is not proven in this case. First, I 

disagree factually that the methane in the cavity is too remote to be exposed to an ignition 

source. The air in the cavity was not being adequately diluted, as is evidenced by the high levels 

of methane that remained. Given the continued course of mining, the methane would have 

migrated to other areas, pushed along by air that was not able to adequately dilute the mixture. 

Although the electrical cables were on the ground, the other equipment, particularly the roof 

bolter, was or would shortly have been, working at the roof level, very near to the elevated 

methane levels. 

The Secretary argues, and I agree, that the Island Creek decision is a narrow one and 

should not be relied upon for the proposition put forth by JWR. The Commission clearly 

explained that the Island Creek decision was limited to the facts of that case as they related to 

methane levels in the gob. In this case, unlike Island Creek, the methane levels were found very 

near the working face, with many machines and miners traveling and working in the area. In 

addition, Getter credibly described the many possible ignition sources he observed and, in his 

experience, those ignition sources, mixed with the high concentration of methane, were a 

formula for an immediate, life-threatening event. 

Next, the mine argues that Getter abused his discretion because the mine was required to 

withdraw from the area once the methane reached 1.5 percent. It is the position of JWR that 

since 30 C.F.R ' 75.323(b)(2) requires the mine to withdraw persons working at the face back to 

the last open crosscut and de-energize equipment if a methane level of 1.5 percent or greater is 

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discovered, there was no need for an imminent danger order. I disagree with the reasoning of the 

mine. 

The Commission and Courts have held that an imminent danger exists when the 

condition or practice observed could reasonably be expected to cause death or serious physical 

harm to a miner if normal mining operations were permitted to proceed in the area before the 

dangerous condition is eliminated. See Rochester & Pittsburgh Coal Company v. MSHA, 11 

FMSHRC 2159, 2163. Courts have interpreted the definition of imminent danger to exclude 

consideration of abatement time. Judges should analyze hazards without assuming that they will 

be automatically abated. Id. The very case upon which the company relies for its explanation of 

107(a) outlines the precautionary principle at work in that section of the Mine Act, holding that 

Athe removal of miners from the perceived imminent danger is the paramount concern.@

Wyoming Fuel Company, 14 FMSHRC 1282, 1292. Hence, even if there is a regulatory standard 

that requires withdrawal from the area, using the tool of an imminent danger order is not an 

abuse of discretion. 

I do not agree that JWR was in the process of removing power or men from the area 

when the verbal order was issued by Getter. However, even if they were in the process of 

abating the violative condition, Inspector Getter was justified in issuing the imminent danger 

order in the interests of protecting them from the danger he observed. First, Getter was not 

aware, and saw no evidence at the time he issued the order, that miners were being voluntarily 

withdrawn from the area. Next, Getter explained that the standard=s requirement to withdraw 

miners is a burden on the mine operator, and not on the inspector. That standard is directed to 

the mine operator, and the role of the inspector is to issue a citation or order if the mine does not 

comply. Here, Getter issued no such citation and, therefore, it cannot be said that duplicative 

citations were issued. The Western Fuels case cited by JWR is instructive in this regard. In that 

case the Commission determined that citations are not duplicative as long as the standards 

involved impose separate and distinct duties on an operator. Western Fuels-Utah, Inc., 19 

FMSHRC 994, 1003-04 (June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 

378 (Mar. 1993); Southern Ohio, 4 FMSHRC at 1462-63; El Paso Rock Quarries, Inc., 3 

FMSHRC 35, 40 (Jan. 1981)). Here, the imminent danger authority granted by the Act, and the 

requirement of the standard to withdraw miners, impose separate duties on the operator and 

MSHA, and not on the operator alone. Thus, the responsibilities are not identical and are 

directed at different entities. 

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Finally, I find that Getter issued the imminent danger order based not only on the level of 

methane, but also the ignition sources and the exposure to miners. He did not, as the mine 

asserts, use a per se rule of 5 percent methane. Consequently, I find no need to address the 

argument that using a per se rule is an abuse of discretion. Also, in reaching my decision 

upholding the imminent danger order, I did not find the history of assessed violations to be 

relevant and did not rely upon that exhibit except to confirm the assertions of JWR that they had 

not received any permissibility violations during an inspection conducted the day prior to this 

one. See Sec=y Ex. 6; (Tr. 18-19). Instead, I credit the testimony of Inspector Getter and rely 

upon his observations at the time, his knowledge of methane and the conditions of the mine, and 

his understanding of the importance of immediately removing men from the area given the 

dangers he observed. For the above stated reasons, I find that the Secretary has demonstrated by 

a preponderance of the evidence that Getter did not abuse his discretion and the imminent danger 

order stands as issued. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Certified Mail, RRR) 

Carla Casas, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 

7T10, Atlanta, Georgia 30303 

John B. Holmes III, Maynard, Cooper & Gale, P.C., 1901 Sixth Ave., North, 2400 Regions 

Harbert Plaza, Birmingham, Alabama 35203 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

December 27, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA),

Petitioner

 : 

: 

Docket No. KENT 2009-1368 

A.C. No. 15-18839-189764

 : 

v. :

 : 

EXCEL MINING, LLC : Van Lear Mine 

Respondent 

DECISION

Appearances: Angele Gregory, Esq., and Alisha Wyatt, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, on behalf of the Petitioner;

 Gary D. McCollum, Esq., Lexington, Kentucky, on behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon a petition for a civil penalty filed by the Secretary of Labor 

(“Secretary”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. §801 et seq., (“Act”) charging Excel Mining, LLC. (“Excel”) with two violations of 

mandatory standards and proposing civil penalties of $49,039.00 for those violations. Since Excel 

admits the violations, the general issue remaining is the appropriate civil penalty to be assessed for 

those violations. Additional specific issues are addressed as noted herein. 

Citation Number 8224945, issued at 12:30 p.m. on May 11, 2009 pursuant to section 

104(d)(1) of the Act, alleges a “significant and substantial” violation of the standard at 30 C.F.R. 

§75.507-1(a) and charges as follows:1 

1 Section 104 (d)(1) 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 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 safety 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 

(continued...) 

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The explosion proof enclosure for the #3 P-40 de-watering pumps located in the 

return air course approximately 60 feet from the VL-2 seals is not being maintained 

in a permissible condition. The following conditions exist. 1. No packing material 

is provided in the stuffing box of the packing gland for the 8/5 awg cable being used 

to supply power of 575 volts to this explosion proof enclosure, allowing the power 

cable to move freely through the packing gland thus exposing the electrical circuits 

in this explosion proof enclosure to the mine atmosphere. 2. A device is not provided 

to secure the packing nut of the stuffing box from loosening. These conditions 

exposes [sic] miners to dangers of burns and /or smoke inhalation from a methane 

explosion. A agent of the operator has been making the weekly examinations of this 

pump installation and this installation has been in service for at least a month. The 

examiners (who are agents of the operator) engaged in aggravated conduct 

constituting more that [sic] ordinary negligence in that the packing glands on the 

explosion proof enclosure were not packed with packing material. This violation is 

an unwarrantable failure to comply with a mandatory standard. This mine has a 

history of methane gas and this pump installation is located approximately 60 feet 

from a sealed area. 

Order Number 8224946, issued at 12:41 p.m. on May 11, 2009 pursuant to section 

104(d)(1) of the Act, also alleges a “significant and substantial” violation of the standard at 30 

C.F.R. §75.507-1(a). The order charges as follows: 

The explosion proof enclosure for the #2 P-70 de-watering pump located in the 

return air course approximately 60 feet from the VL-2 seals is not being maintained 

in a permissible condition. The following conditions exist. 1. No packing material 

is provided in the stuffing boxes of the packing glands for the cables being used to 

supply power of 575 volts to this explosion proof enclosure and the P-70 pump, 

allowing the power cable to move freely through the packing gland thus exposing the 

electrical circuits in this explosion proof enclosure to the mine atmosphere. 2. A 

device is not provided to secure the packing nuts of the stuffing boxes from 

loosening. These conditions exposes [sic] miners to the dangers of burns and/or 

smoke inhalation from a methane explosion. An agent of the operator has been 

making the weekly examination of this pump installation and this installation has 

been in service for at least one month. These conditions exposes [sic] miners to the 

dangers of burns and/or smoke inhalation from a methane explosion. An agent of the 

operator has been making the weekly examination of this pump installation and this 

1

(...continued) 

affected by such violation, except those person 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. 

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 installation has been in service for at least one month. The examiners (who are agents

of the operator) engaged in aggravated conduct constituting more that ordinary

negligence in that the packing glands on the explosion proof enclosure were not 

packed with packing material. This violation is an unwarrantable failure to 

comply with a mandatory standard. This mine has a history of methane gas and 

this pump installation is located approximately 60 feet from a sealed area. 

The cited standard, 30 C.F.R. §75.507-1(a), provides that “[a]ll electric equipment, other than 

power-connection points, used in return air outby the last open crosscut in any coal mine shall be 

permissible except as provided in paragraphs (b) and (c) of this section.” There is no contention that 

paragraphs (b) or (c) are applicable herein. 

As previously noted, Excel admits the violations. It disputes only the “significant and 

substantial” (gravity) and unwarrantable failure (negligence) findings as well as the amount of 

proposed civil penalties. Dale Howell is an electrical inspector for the Department of Labor’s Mine 

Safety and Health Administration (MSHA) and had been working for MSHA since 2007. He had 

previously been a mine inspector for the State of Kentucky and has more than 30 years of coal mine 

industry experience. On May 11, 2009, Inspector Howell conducted an electrical inspection of the 

subject Van Lear Mine. As part of that inspection, he examined two de-watering pumps located near 

the mine’s seals. The pumps were located in a low spot where water gathers. Howell explained that, 

without the pumps to remove built-up water from the area, the water could block the air current in 

the return air course and also impede travel through the area. 

Howell testified that during an earlier visit to the mine that same week he found that the 

pumps had not been working and approximately three feet of water had built up in front of the seals. 

Only two feet of air space remained in the area and Howell explained that he was concerned that the 

ventilation would become blocked by the water. Excel’s Assistant Chief Electrician Jake Bowen told 

Howell that the power had been off and the water had built up. Because of the amount of water in 

the area, Howell was unable to inspect the pumps. He told Bowen that he would return after the 

water was removed. 

A de-watering pump consists of the pump itself, which sits on the mine floor usually in 

water, and a starter box, which is located 20-30 feet away in a dry location, usually suspended from 

the roof. The two are connected by an inner machine cable. Where the cable enters the starter box, 

it is insulated and secured by packing glands, which are filled with fiberglass-type rope. 

Howell testified that when examining a de-watering pump, he checks for permissibility by 

using a feeler gauge and pulling on the cable entering the box to “see if it moves.” If the cable 

moves, that indicates that the cable is not properly packed. According, to Howell, when a stuffing 

box is not properly packed, it is not permissible because, in the event of an explosion, the flames can 

escape the container by traveling past the unsecured cable. 

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When Howell returned to the mine on May 11th to inspect the P-40 and P-70 pumps located 

in front of the Number 8 seal, he found about a foot of water surrounding the area. Howell testified 

that he found that the packing glands were missing from both pump starter boxes and that there was 

a problem with the handle on one of the boxes. According to Howell, when he pulled on the cable 

to the starter box, it moved back and forth, and when he looked into the stuffing box, he did not see 

any stuffing. Howell opined that the cable to one of the boxes had been “whittled down with a knife 

so it would fit into the pump,” and the stuffing boxes did not have proper lead ties to keep the 

packing glands from loosening. 

Inspector Howell found that the condition of the pumps constituted a violation of 30 C.F.R. 

§75.507-1(a). He wrote Citation Number 8224945 based on the condition of the P-40 de-watering 

pump and he wrote Order Number 8224946 based on the condition of the P-70 pump. As previously 

noted these findings are not disputed. 

The Secretary also maintains however that these violations were “significant and 

substantial.” 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: 

In order to establish that a violation of a mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard, (2) a discrete safety hazard - that is, a measure of danger to 

safety - contributed to by the violation, (3) a reasonable likelihood that the hazard 

contributed to will result in injury and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

See also Austin Power Co. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g

9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 

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 (Aug. 1984), and also that the likelihood of injury be 

evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal 

Co., 13 FMSHRC 912, 916-917 (June 1991). 

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In this regard, Howell found that the condition of the pumps was likely to result in “[s]moke 

inhalation, or burns or even crushing injuries, concussion” to miners because of the proximity of the 

pumps to the seals, which in-gas and out-gas methane. According to Howell during periods of low 

barometric pressure, methane is liberated from the seals. Howell, explained that, because the starter

box was not permissible, any spark would not be contained within the box and that it was likely that 

a spark from the box would be ignited by methane released from the nearby seals during a period 

of low pressure. 

In this regard it is undisputed that the Van Lear Mine liberates 295,000 cubic feet of methane 

in a 24-hour period from one split of air. At the time of the citation, the mine was on a 15-day spot 

inspection for methane. Inspector Howell explained that, in addition to the seals, methane can escape 

from cracks in mine strata, particularly in areas where there has been a roof fall and that the mine 

had experienced a roof fall only one break inby the seals. 

Howell credibly concluded that he would expect to see fatal injuries from a resulting 

methane explosion and injuries from burns or smoke inhalation from a mine fire. He further opined 

that 10 people would be affected by a methane explosion, and up to 50 or 60 people would be 

affected in the event of a disruption in the mine’s ventilation system. Howell explained that up to 

60 men travel to the bottom of the mine slope, which is 1500-2000 feet from the seals. 

MSHA ventilation expert and supervisor, Craig Plumley, explained that he is familiar with 

the VL2 seals at Van Lear Mine and noted that behind the VL2 seals, are an initial set of seals. He 

testified however that there is no way to determine the current condition of the initial seals. 

Moreover, it is not disputed that before the installation of the current seals, an explosive mixture of 

methane was detected behind the seals. Mr. Plumley opined that considering the location of the nonpermissible starter box in the return air course in a mine with this history of methane liberation there 

was a concern for an explosive hazard. Plumley further explained that, in addition to the location 

of the pumps in front of the VL2 seals, they were also in an area where four entries were compressed 

into one entry causing the air from five returns from active sections, which are also a source of 

methane, to move past the non-permissible pumps. 

Plumley also confirmed Inspector Howell’s opinion that the build-up of water around the 

pumps would put more pressure on the ventilation system behind the water build-up, which would 

reduce the airflow and allow a build-up of methane in front of the non-permissible starter boxes. In 

summation, Plumley stated as follows: 

In my opinion and my experience through mining history that I’ve been involved 

with, there is a high expectation of an explosive mix being generated outby seals that 

have been in an explosive range in the past and we have record of such that could 

liberate into the active workings over top of a non-permissible pump, two nonpermissible pumps that would create a situation of an explosive atmosphere in 

conjunction with an ignition source. And the hazard, in my view, is the potential that 

this exposed the miners to an explosion throughout the mine that would cause fatal 

injuries.

 (Tr. 98) 

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Considering the credible testimony of these expert witnesses and the reasonable inferences 

therefrom, I conclude that the Secretary has met her burden of proving that the cited violations were 

“significant and substantial” and of high gravity. In reaching these conclusions, I have not 

disregarded Excel’s arguments that, at the time the charging documents were issued, no methane 

was detected and that no deficiency in air volume or velocity was found at the site of the violative 

conditions In addition, I note Excel’s argument that there has been no evidence of explosive 

methane ever found in the subject entry. Excel also notes that its ventilation has always been 

maintained with “a lot of air.” I nevertheless note that continued mining operations must be 

considered in determining whether a violation is “significant and substantial” and I give persuasive 

weight to the existence of serious existing ignition sources in a mine liberating significant amounts 

of methane. 

The Secretary also maintains that the admitted violations were the result the operator’s 

unwarrantable failure and high negligence. Unwarrantable failure is “aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act.” 

Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized 

by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack 

of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 

(Feb. 1991); see also Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 157 (2d Cir. 1999);

Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s 

unwarrantable failure test). 

In this regard, Inspector Howell found that the condition of the pumps resulted from high 

negligence on the part of the operator. After writing the citation, Howell spoke to electrician Jake 

Bowen, who said that he had worked at the mine for one month and, as far as he knew, the pumps 

had not been changed out in that time. The record books also did not indicate that the pumps had 

been changed in the week preceding Howell’s inspection. Howell opined that this condition 

constituted an unwarrantable failure to comply with a mandatory safety standard because of the 

length of time the condition existed and the fact that “if you do an electrical exam, you can’t miss 

these deficiencies.” Howell explained that, as agents of the operator, the examiners should have 

known or did know of the cited conditions. 

In addition to Mine Electrician Bowen’s statement to Inspector Howell that the pumps had 

not been changed out in the month that he had worked at the Van Lear Mine, the mine’s own records 

demonstrate that neither of the pumps was repaired between March 28, 2009 and May 11, 2009. This 

evidence is contrary to Chief Electrician Rick James’ unsupported testimony that the pumps must 

have been changed sometime between the time of the last electrical examination and Howell’s 

inspection. In addition, James acknowledged that “he didn’t know that they [the pumps] had been 

changed or if anybody had changed them.” I find however that the credible evidence supports the 

conclusion that no one had changed out the pumps in the weeks prior to the citation and order. The 

evidence also supports Howell’s conclusion that the examiners were in a position to have seen these 

conditions for at least a month and failed to report those conditions or have taken the pumps out of 

service. 

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The violative conditions were also extensive. Neither pump located near the VL2 seals 

contained packing material. As Inspector Howell described, the citation was not due to an 

insufficient amount of packing material in the stuffing boxes; but rather, the complete absence of 

stuffing material in the boxes. The extent of the condition was obvious because, without any 

stuffing in the box, the cables moved back and forth freely. Inspector Howell credibly opined that 

the non-permissible condition of the pumps was obvious and could not have been overlooked during 

an electrical exam. 

The evidence supports Inspector Howell’s conclusion that the operator had knowledge of the 

violative conditions which, as previously noted, were of high gravity. Here, the operator’s failure 

to correct the conditions is particularly egregious given that one of the starter boxes had a note 

written directly on top of its cover, which contained an expletive and referred to the functionality 

of the starter box. The note indicated that the breaker handle was not working properly and could 

not be reset from outside of the box. This note was sufficient to put the electrical examiner on notice 

that there was a problem with that pump. Moreover, a simple examination of the starter boxes, i.e. 

by pulling on the cable entering the boxes, would have clearly demonstrated to the examiner that 

the boxes contained no stuffing. Either the examiner failed to conduct that simple examination or 

conducted the examination but ignored the results. Either way, the operator is responsible for the 

intentional misconduct or gross negligence of the examiner. Under the circumstances, I find that the 

Secretary has met her burden of proving that the violations herein were the result of Excel’s 

unwarrantable failure and high negligence. 

In reaching these conclusions, I have not disregarded Excel’s claim that the electrical 

examiners were not its agents so that their actions were not imputable to Excel. Clearly however, 

miners conducting permissibility examinations of electrical pumps are agents of the operator. 

Rochester & Pittsburgh Coal Company, 13. FMSHRC 189, 197 (February 1991). I further find that 

I can give but little weight to Mr. James’ hearsay interviews with the examiners and electricians. 

Those miners could have suffered disciplinary action if they had admitted to working on the pumps, 

for failing to have conducted proper examinations or for failing to correct the violative conditions. 

Civil Penalties 

Under Section 110(i) of the Act, the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the operator in 

committing the violation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operator’s ability to continue 

in business. 

The record shows that Excel is a medium to large size operator, has a significant history of 

violations and abated the violative conditions in good faith. There is no evidence that the penalties 

herein would affect the operator’s ability to remain in business. The gravity and negligence criterion 

have previously been discussed. 

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Order 

Citation No. 8224945 and Order No. 8224946 are hereby affirmed and Excel Mining, 

LLC is directed to pay civil penalties of $23,200.00 and $25,800.00 respectively for the 

violations charged therein within 40 days of the date of this decision. 

/s/ Gary Melick

Gary Melick

Administrative Law Judge

(202) 434-9977 

Distribution: 

Angele Gregory, Esq., and Alisha Wyatt, Esq., U.S. Department of Labor, Office of the Solicitor,
 

211 7th Avenue North, Suite 420, Nashville, TN 37219
 

Gary McCollum, Esq., Excel Mining, LLC, 771 Corporate Drive, Suite 500, Lexington,
 

Kentucky 40515
 

/to
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

December 27, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. WEST 2009-244-M 

Petitioner : A.C. No. 04-00196-168887 

: 

v. : 

: 

LEHIGH SOUTHWEST CEMENT, : 

Respondent : Mine: Tehachapi Plant 

DECISION 

Appearances: D. Scott Horn, Conference and Litigation Representative, U.S. Department of 

Labor, Vacaville, California, for Petitioner; 

Brian Bigley, Safety Director, Lehigh Southwest Cement Company, Tehachapi, 

California, for Respondent 

Before: Judge Paez 

This case is before me upon the Petition of the Secretary of Labor for Assessment of 

Civil Penalty pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act”).1 30 U.S.C. § 815 (2008). 

I. Statement of the Case 

Respondent Lehigh Southwest Cement (“Lehigh”) contests the sole citation at issue in 

this case, Citation No. 6440444, for which the Secretary seeks a civil penalty of $12,248, for 

failure to provide certain training under 30 C.F.R. § 46.5(a). The Secretary filed her Petition for 

Assessment of Civil Penalty on March 13, 2009, and this case was assigned to me on January 4, 

2010. On July 30, 2010, Lehigh filed a Request for Hearing and Prehearing Statement pursuant 

to my Prehearing Order. I held a conference call with the parties on September 29, 2010, to set 

this case for trial and issued a Notice of Hearing on October 25, 2010. The hearing in this matter 

took place on November 22, 2010, in Woodland Hills, California, where I admitted the parties’ 

documentary evidence, as well as the testimony of MSHA Inspector David Reynolds and Lehigh 

1

 References to Exhibit A of the Secretary’s Petition for Assessment of Civil Penalty, 

Lehigh’s exhibits, and the Secretary’s exhibits are abbreviated as “Sec’y Ex. A,” “Ex. D-#,” and 

“Ex. P-#,” respectively. References to Lehigh’s Written Closing Arguments, the Petitioner’s 

Post-Hearing Brief, and Lehigh’s Post Closing Response are abbreviated as “Resp’t Br.,” “Sec’y 

Br.,” and “Resp’t Resp.,” respectively. 

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Safety Manager Brian Bigley. Lehigh filed its post-hearing brief on December 1, 2010. The 

Secretary filed her brief on March 8, 2011, pursuant to my Order granting the Secretary’s request 

for a longer briefing schedule. Lehigh filed its response on March 30, 2011. 

II. Stipulations 

The parties agree to the following facts: 

a. The Administrative Law Judge and Federal Mine Safety and Health 

Review Commission have jurisdiction over this proceeding. 

b. Tehachapi Plant is a mine and is subject to the Federal Mine Safety and 

Health Act of 1977. 

c. At all times relevant to these proceedings, Lehigh Southwest Cement 

Company operated the Tehachapi Plant. 

d. David Reynolds was acting in his official capacity as an authorized 

representative of the Secretary of Labor when he issued citation number 

6440444 and that said citation was served upon the [R]espondent. 

e. The violation was promptly abated. 

f. Payment of the proposed penalty will not affect the Respondent’s ability 

to continue in business. 

g. The Respondent’s mine size and the employment hours documented in 

Exhibit A of the Petition for Assessment[] are correct. 

h. The Respondent’s history of violations as documented in Exhibit A of the 

Petition for Assessment is correct. 

(Sec’y Prehr’g Report 1–2. See Resp’t Prehr’g Report 1–2 (restating stipulated facts).) 

III. Issues 

The Secretary argues that Lehigh violated 30 C.F.R. § 46.5(a) by failing to ensure that 

the construction workers rebuilding its mine’s fuel station were provided new miner training. 

(Sec’y Br. 3–4.) The Secretary further contends that Lehigh’s alleged violation was significant 

and substantial (“S&S”),2

 as the improperly trained miners were exposed to significant mine 

2

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

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

(continued...) 

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hazards. (Id. at 9–10.) The Secretary asserts that Lehigh’s negligence was high because its 

safety manager knew the safety regulations yet allowed the contract construction workers to 

work at the mine without proper training. (Id. at 10–11.) 

Lehigh asserts that no violation occurred because these workers were not “miners,” thus 

not requiring new miner training. (Resp’t Br. 1–6; Resp’t Resp. 1–8.) Alternatively, Lehigh 

contends that the Secretary may not designate this alleged violation as S&S because it is not a 

mandatory safety standard. (Resp’t Br. 6–7; Resp’t Resp. 8.) Even if the S&S designation is 

applicable, Lehigh urges that the facts do not support that determination or the Secretary’s 

contention of high negligence. (Resp’t Br. 6–7; Resp’t Resp. 8–9.) 

Accordingly, the issues before me are as follows: (1) Whether the Secretary has 

established a violation of 30 C.F.R. § 46.5(a) by proving the workers constructing the new 

fueling station at Lehigh’s mine were “miners” under 30 C.F.R. § 46.2(g), thus requiring new 

miner training; (2) whether the record supports the gravity of the alleged violation; (3) whether 

the alleged violation was S&S; (4) whether the record supports Lehigh’s negligence with respect 

to the alleged violation; and (5) whether the proposed penalty is appropriate under section 110(i) 

of the Mine Act. 

For the reasons that follow, Citation No. 6440444 is affirmed. 

IV. Background and Findings of Fact 

A. Tehachapi Plant Mine Operation 

Lehigh operates the Tehachapi Plant in Kern, California, which produces Portland 

cement. (Tr. 13:13–15; Sec’y Ex. A.) The mine runs twenty-four hours a day with most workers 

there between 7 a.m. and 3:30 p.m. (Tr. 79:7–18.) In 2008, Lehigh contracted with Valued 

Engineering to develop a new fuel station for its mine. (Tr. 24:5–6, 53:8–16.) The project 

involved the installation of aboveground fuel tanks to hold the gasoline and diesel used by the 

mine’s vehicles, as well as the removal of the station’s old underground fuel tanks. (Tr. 

51:12–19, 53:4–16.) Although Valued Engineering was responsible for the entire project, it 

subcontracted with several other companies to carry out the project’s different phases. (Tr. 

53:17–54:17.) Bagley Enterprises performed much of the project’s “backhoe work,” such as 

placing the concrete pads for the new fuel tanks and digging up the old tanks. (Id.) Valued 

Engineering used other specialty companies to complete the remaining portions of the project, 

such as installing new electrical fixtures. (Id.) 

The fuel station remained open throughout the duration of the construction project. (Tr. 

77:17–22.) Lehigh used the underground fuel tanks until the new aboveground ones were ready. 

(Id.) To minimize any disruption to the project, Lehigh required its vehicles to refuel after-hours 

(...continued)
 

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

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between 6 p.m. and 6 a.m. to avoid being at the fuel station while the construction workers were 

there. (Tr. 51:20–53:3, 79:19–21.) Additionally, Lehigh kept a fully loaded fuel truck away 

from the fuel station for emergencies. (Tr. 52:21–22.) 

The fuel station is located on an access road adjacent to the main mine road and entrance 

gate, which lie just north of the station. (Tr. 42:14–17, 83:15–22; Ex. D-1.) The mine employee 

parking lot is directly to the east of the fueling station and is separated from the station by a 

chain-link fence. (Tr. 48:21–49:6; Ex. D-1.) A large warehouse, known as the “Seymour 

Building,” lies further south along the fuel station access road, adjacent to the southwest corner 

of the fueling station. (Tr. 42:14–20, 48:2–3; Ex. D-1.) The Seymour Building houses the 

mine’s mobile-mechanic shop at its east end, which is the side closest to the fueling station. (Tr. 

48:11–17.) The Seymour Building also contains welding operations, administrative offices, 

break rooms, bathrooms for the millwrights, and a parts disbursal area. (Id.) Additionally, 

Lehigh uses an area adjacent to the northeast corner of the Seymour Building to power-wash its 

vehicles. (Tr. 42:6–7, 69:11–18; Exs. D-1, D-10.) An asphalt road encircles the Seymour 

Building and provides an additional connection to the main mine road at the northwest corner of 

the building. (Ex. D-1.) 

B. MSHA’s Inspection 

Over a two-week period in August 2008, MSHA Inspector David Reynolds conducted a 

regular inspection of the Tehachapi Plant. (Tr. 14:13–22.) During that time, Reynolds observed 

approximately six workers performing various construction tasks at the fuel station construction 

site. (Tr. 13:20–24.) On the day Reynolds issued his citation, the workers were pouring 

concrete. (Tr. 13:20–24, 34:23–35:2.) Reynolds did not observe any experienced miners in the 

area and inspected Valued Engineering’s training records. (Tr. 14:3–5.) Through this 

inspection, as well as by speaking with Valued Engineering’s supervisor, Reynolds discovered 

that the workers at the site had received only site-specific training in July 2008. (Tr. 14:3–9, 

15:7–14.) Valued Engineering’s supervisor further advised that they had been at the project site 

for approximately three months. (Tr. 37:13–17.) Inspector Reynolds also spoke with Lehigh 

Safety Manager Brian Bigley. Bigley advised that he had provided site-specific training to the 

workers but that he had determined that comprehensive training was unnecessary. (Tr. 

15:15–20, 21:19–22:4.) At the hearing, Bigley confirmed that he provided everyone who 

worked at the site with site-specific training when they came to start work on the project (Tr. 

56:5–9) but not comprehensive training because he did believe that the workers met the 

regulatory definition of a “miner” (Tr. 58:6–60:21). 

Based on his determination that the workers at the fuel station had not received adequate 

training, Inspector Reynolds issued a withdrawal order under section 104(g)(1) of the Mine Act 

requiring the workers to leave the job site. (Ex. P-1.) Additionally, Reynolds issued the citation 

at issue in this matter, No. 6440444, charging a violation of 30 C.F.R. § 46.5(a) for failing to 

provide comprehensive new miner training to the workers. (Tr. 16:16–17:9.) 

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The citation narrative states the following: 

The Company was aware that the contractor, Valued Engineering, did not have 

their Part 46 training as required, and allowed them to work at the mine site. The 

Company gave the contractor site specific hazard training, when they started work 

in July, 2008. This condition creates a hazard to the contractor, and to others. 

(Ex. P-1.) 

Based on the workers’ close proximity to large mobile equipment in use at the mine site, 

particularly at the nearby Seymour Building’s mobile equipment shop, Reynolds determined 

that the alleged violation created a reasonably likely risk of fatal injury to one miner. (Tr. 

17:12–20:18.) Reynolds determined that such equipment could fatally crush an improperly 

trained miner. (Tr. 19:14–17.) In addition to hazards associated with the mobile equipment in 

use at the mine, Inspector Reynolds also asserted that the construction workers were exposed to 

electrical hazards through their work at the fuel station project. (Tr. 38:18–21.) Noting that this 

alleged violation involved the reasonable likelihood of fatal injury, Reynolds charged it as S&S. 

(Tr. 20:2–8.) 

V. Principles of Law 

A. Regulatory Interpretation 

The Commission has prescribed the following guidance for interpreting the Secretary’s 

regulations: 

Where the language of a regulatory provision is clear, the terms of that provision 

must be enforced as they are written unless the regulator clearly intended the 

words to have a different meaning or unless a meaning would lead to absurd 

results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Utah 

Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). If, however, a 

standard is ambiguous, courts have deferred to the Secretary’s reasonable 

interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 

F.3d 457, 463 (D.C. Cir. 1990); accord Sec’y of Labor v. Western Fuels-Utah, 

Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation of its own 

regulation is of ‘controlling wight unless it is plainly erroneous or inconsistent 

with the regulation.’”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 

410, 414 (1945)). The Secretary’s interpretation of her regulations is reasonable 

where it is “logically consistent with the language of the regulation[s] and . . . 

serves a permissible regulatory function.” General Elec. Co. v. EPA, 53 F.3d 

1324, 1327 (D.C. Cir. 1995) (citations omitted). 

Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002). 

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The statutory provision underlying the regulation, as well as any related statements 

accompanying the regulation’s publication in the Federal Register, may illuminate the 

regulation’s meaning. Lodestar Energy, 24 FMSHRC at 693. An individual provision of the 

Secretary’s regulations should comport with the other sections of the regulations so as “to 

effectuate the Mine Act’s goal of promoting the safety and health of miners.” Consolidation 

Coal Co., 14 FMSHRC 956, 969 (June 1992) (citing Emery Mining, 744 F.2d at 1414). 

B. Significant and Substantial 

An S&S violation is one “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 

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

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

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove the four elements of the Mathies test: 

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted). See also Buck Creek Coal, 

Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies 

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

of Mathies criteria). An evaluation of the reasonable likelihood of injury should be made 

assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

VI. Further Findings of Fact, Analysis, and Conclusions of Law 

A. Fact of Violation 

1. Regulatory Analysis 

Here, the Secretary alleges that Lehigh failed to provide new miner training to the fuel 

station workers in accordance with the following regulatory provision: 

Except as provided in paragraphs (f) and (g) of this section, you must provide 

each new miner with no less than 24 hours of training as prescribed by paragraphs 

(b), (c), and (d). Miners who have not yet received the full 24 hours of new miner 

training must work where an experienced miner can observe that the new miner is 

performing his or her work in a safe and healthful manner.

 30 C.F.R. § 46.5(a) (emphasis added). 

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A new miner is “a person who is beginning employment as a miner with a productionoperator or independent contractor and 

determination of a violation in this case hinges on whether the workers were miners. 

training. 

workers referenced by the citation were experienced miners, thereby not requiring new miner 

(emphasis added). 

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who is not an experienced miner.” 30 C.F.R. § 46.2(i) 

For the purposes of this case, Lehigh does not assert that the construction 

Rather, Lehigh asserts that the workers were not “miners” at all. Accordingly, the 

A miner is: 

(1)(i) Any person, including any operator or supervisor, who works at a mine and 

who is engaged in mining operations. This definition includes independent 

contractors and employees of independent contractors who are engaged in mining 

operations; and 

(ii) Any construction worker who is exposed to hazards of mining operations. 

(2) The definition of “miner” does not include scientific workers; delivery 

workers; customers (including commercial over-the-road truck drivers); vendors; 

or visitors. This definition also does not include maintenance or service workers 

who do not work at a mine site for frequent or extended periods. 

30 C.F.R. § 46.2(g) (emphasis added). 

A person’s status as a miner turns on whether he or she is engaged in, or exposed to the 

hazards of, “mining operations.” For the purposes of the Secretary’s training regulations, mining 

operations involve “mine development, drilling, blasting, extraction, milling, crushing, 

screening, or sizing of minerals at a mine; maintenance and repair of mining equipment; and 

associated haulage of materials within the mine from these activities.” 30 C.F.R. § 46.2(h). 

Here, the evidence establishes that the workers cited by Reynolds were involved in 

building the Tehachapi Plant’s new fuel station, making them “construction workers” under any 

definition of the term.3

 The question, then, is whether they were “exposed to hazards of mining 

operations.” The word “exposed” is ambiguous, as it raises questions about the degree and 

duration of contact with mining operation hazards necessary to fall under the ambit of the 

regulatory provision. 

The Secretary defines which construction workers may be considered “miners” as 

follows: 

3

 As the fuel station workers fall under the category of “construction workers,” I need not 

consider Lehigh’s objections to classifying the workers as independent contractors and 

employees of independent contractors who are engaged in mining operations under 30 C.F.R. 

§ 46.2(g)(1)(i). (Resp’t Br. 2; Resp’t Resp. 3–4.) 

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[C]onstruction workers, because of the nature of their work, are not typically 

engaged in mining operations . . . . However, construction workers who are at an 

active mine site will be exposed to significant hazards of mining. Construction 

workers are also typically at the mine site for extended periods because of the 

nature of their work, unlike many other employees of independent contractors. 

For these reasons, the final rule now provides that construction workers who are 

exposed to hazards of mining operations are considered “miners” under the final 

rule. This means that construction workers who work in an active mine site are 

considered “miners” and must receive comprehensive training (i.e., new miner 

training or newly hired experienced miner training, as appropriate). 

Construction workers who are not “miners” must receive site-specific hazard 

awareness training under § 46.11(b). 

Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, 

Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines, 64 Fed. Reg. 

53,080, 53,095 (Sept. 30, 1999) (emphasis added). 

Thus, according to the Secretary, any construction worker who works at an active mine 

site is a “miner.” Construction workers at an inactive mine site may not necessarily be classified 

as “miners.” As noted by the Secretary, this definition reflects the fact that construction workers 

typically work at a mine site for an extended period of time and are typically exposed to hazards 

of mining. Indeed, construction workers at an active mine site work in the general environment 

as workers engaged in mining operations and thus are exposed to the same set of hazards. The 

Secretary’s regulation ensures that all of these workers receive the same comprehensive safety 

training, effectuating the Mine Act’s purpose of protecting miners. Importantly, the Secretary’s 

interpretation also unambiguously notifies mine operators of their obligations toward training 

construction workers. I conclude that the Secretary’s interpretation of the scope of her 

regulation is reasonable. 

2. Application of Regulation to Facts 

The evidence demonstrates that Lehigh allowed its contractor’s workers to be at the fuel 

station without having received comprehensive miner training. Inspector Reynolds discovered 

that Lehigh provided only site-specific training in July 2008, and Lehigh Safety Director Bigley 

confirmed that he provided only site-specific training to the workers upon commencement of the 

project prior to Reynolds’s inspection. Additionally, the regulation does permit miners who 

have not completed their new miner training to work where an experienced miner can observe 

the new miner performing work in a safe and healthful manner. 30 C.F.R. § 46.5(a). Here, 

however, Inspector Reynolds presented uncontroverted testimony that no experienced miner was 

present while the workers were at the mine site. 

Most importantly, the Tehachapi Plant is an active mine operation that runs twenty-four 

hours per day, thus requiring these construction workers to have new miner training. The 

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evidence bears out the conclusion that the workers at the fuel station project were exposed to the 

hazards of mining operations. Several types of vehicles specific to Lehigh’s operation operated 

at Tehachapi Plant in the vicinity of the fuel station project. Lehigh used a small dual-axle water 

truck, as well as an eighty-five-ton haulage truck that had been converted into a water truck. (Tr. 

18:5–9.) The mine used eighty-five-ton trucks for haulage, too, as well as bulldozers, loaders, 

street sweepers, and service trucks. (Tr. 18:10–19:4.) Not only was the construction site located 

at the mine’s only fuel station, it also was near the Seymour Building’s mobile-mechanic shop 

and power-washer area, two other major destinations for these vehicles. (Tr. 17:23–18:2, 

42:5–7.) Indeed, at the time of the alleged violation, Reynolds observed a water truck, loader, 

and street sweeper on the road heading to, and around by, the maintenance shop in the same 

vicinity of the fuel station project. (Tr. 25:20–26:3.) These vehicles traveled near the 

construction site in connection with the haulage and maintenance of mine equipment, two 

examples of the types of activities qualifying as “mining operations” under 30 C.F.R. § 46.2(h).4 

Inspector Reynolds accurately characterized these hazards as mining hazards. (Tr. 43:11–13.) 

In addition to hazards posed by mine vehicles, the kiln and tower, associated with the 

Tehachapi Plant’s concrete processing activities, were located west-southwest from the fuel 

station off of the main mine road. (Tr. 56:22–24, 57:12–25, 71:10–22; Exs. D-1, D-6.) Lehigh 

Safety Director Bigley acknowledged that these areas could be hazardous and covered them in 

Lehigh’s site-specific training regimen. (Tr. 56:10–24.) Although these buildings were located 

farther from the mine site than the Seymour Building and Lehigh instructed the fuel station 

workers not to go there, they were still not physically closed off to the workers. (Tr. 

56:22–57:3.) Indeed, Bigley acknowledged that at the plant it is “easy . . . to find yourself in a 

spot you may not be familiar with.” (Tr. 57:2–3.) 

Nevertheless, Lehigh contends that the workers at the fuel station project were not 

exposed to the hazards of its mining operation. (Resp’t Br. 5–6; Resp’t Resp. 6–7.) In addition 

to presenting uncontroverted testimony that it had directed its vehicles not to travel by the fuel 

station during daytime hours while the construction workers were at the site, Lehigh presented 

evidence that it had erected a temporary seven-foot fence around three sides of the fuel station. 

(Tr. 48:21–49:4.) The fence separating the employee parking lot from the fuel station bound the 

eastern side of the fuel station site. (Tr. 49:5–6.) Another side of the fence ran on the south side 

of the site from the employee parking lot to across the access road. (Tr. 49:7–9.) The third side 

of the fence ran across the north side of the fuel station to prevent vehicles on the main road from 

entering the site. (Tr. 49:20–23.) The western side of the fuel station was not fenced, and it 

opened up to a large flat area through which the workers could access the Seymour Building, the 

main mine road, as well as the rest of the Tehachapi Plant. (Tr. 72:16–18; Ex. D-1.) 

4

 In addition to vehicles traveling around the Seymour Building, loaders traveling 

between the mine’s limestone dome, which contains material used in cement-making, and the 

maintenance shop could travel by the fuel station. (Tr. 41:6–8, 42:18–43:1, 61:14–25.) Lehigh, 

however, had directed traffic away from the access road on the east side of the limestone to 

prevent vehicles from traveling past the fuel station on the main mine road. (Tr. 61:14–25.) 

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Additionally, Lehigh told the workers not to go outside of the work site. (Tr. 56:24–25.) 

Lehigh provided portable outdoor toilets and sun canopies at the site to encourage workers not to 

go into the Seymour Building. (Tr. 49:13–16.) At the hearing, Lehigh Safety Manager Bigley 

suggested that the workers could go to their cars for breaks. (Tr. 50:20–21.) According to 

Lehigh, these measures isolated the fuel station workers from the mine hazards present at the 

Tehachapi Plant. (Resp’t Br. 5–6; Resp’t Resp. 6–7.) 

Nonetheless, the fence was easily penetrable. The workers had a key to the fence to 

allow their work vehicles into the site. (Tr. 49:24–50:1.) Indeed, Inspector Reynolds observed 

that the workers had their own vehicles, as well as their own cement trucks, in the area. (Tr. 

44:21–45:2.) Moreover, workers could easily walk through the grassy area next to the open side 

of the work site and access the rest of the mine. (Ex. D-1.) The fence’s permeability most likely 

underlies Inspector Reynolds’s lack of recollection of any other fence besides the mine’s main 

gate and the fence at the employee parking lot (Tr. 82:21–83:22), not a lack of credibility as 

Lehigh contends (Resp’t Resp. 7). Finally, the fuel station’s construction took place during the 

summer months at a mine sited in a barren, southern California desert. (Exs. D-1–D-14.) I do 

not find that Lehigh’s provision of portable toilets and sun canopies, as well as its reliance on the 

workers’ ability to access their personal vehicles, sufficient to give the workers no “reason 

whatsoever” to access the Seymour Building’s break areas for shade, cool water, or first aid. 

(Tr. 50:19–20.) The application of a safety standard involving a miner’s behavior should 

account for the “vagaries of human conduct” and “ordinary human carelessness.” Thompson 

Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In light of these considerations, I 

conclude that the workers at the fuel station were exposed to mine hazards at the Tehachapi 

Plant. See Oil-Dri Prod. Co., 32 FMSHRC 1761, 1771–75 (Nov. 2010) (ALJ) (concluding that 

construction workers installing siding on building at mine site were exposed to mine hazards of 

mine operations and required 30 C.F.R. part 46 (“part 46”) new miner training). 

Notwithstanding these considerations, Lehigh asserts that the Secretary has not met her 

burden of proof in demonstrating a violation in this case. (Resp’t Br. 5–6; Resp’t Resp. 6.) 

Specifically, Lehigh points to Safety Director Bigley’s testimony that work at the fuel station 

was performed by many different groups of workers who were present at the site only a few days 

at a time. (Tr. 59:3–5; Resp’t Br. 5–6; Resp’t Resp. 6.) According to Bigley, the workers 

present when Inspector Reynolds issued the citation were scheduled to be at the work site for 

three days. (Tr. 55:3–7.) Furthermore, Inspector Reynolds could not determine whether the 

workers he observed during his two-week inspection were the same ones he saw when he 

inspected the fuel station. (Tr. 27:6–21.) Lehigh concludes that the workers were not exposed to 

mine hazards or present at the mine site long enough for them to be miners under the regulations. 

(Resp’t Br. 5–6; Resp’t Resp. 6.) 

In spite of Lehigh’s suggestions to the contrary, the regulatory language does not require 

construction workers to be present at an active mine site for a minimum number of days to be 

adequately exposed to mine hazards and considered “miners.” The Secretary has plainly stated 

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that construction workers at an active work site are considered “miners,” and they require new 

miner training. See discussion supra Part VI.A.1. 

Moreover, Bigley’s own testimony undermines the credibility of his assertion that these 

workers were present at the site for only a few days at a time. Bigley trained the fuel station 

workers in July 2008, several weeks before the citation’s issuance in August. Different 

subcontractors undoubtedly carried out various aspects of the project, but the bulk of the work at 

the site, and that observed by Reynolds when he issued the citation in this case, was the backhoe 

work of removing the old fuel tanks and installing the new ones. Valued Engineering used one 

subcontractor for this work—Bagley Enterprises. To abate the violation, Bigley worked with 

Valued Engineering and Bagley Enterprises to develop a new miner training program. (Tr. 

55:21–56:4.) 

In a similar effort to confuse the issue, Lehigh asserts that “the concept of ‘frequent or 

extended periods’ of work” supports its proposition that the fuel site workers were not miners.5 

(Resp’t Br. 3–4; Resp’t Resp. 4.) Here, Lehigh relies on the regulatory provision exempting 

certain categories of workers as miners: “The definition of ‘miner’ does not include scientific 

workers; delivery workers; customers (including commercial over-the-road truck drivers); 

vendors; or visitors. This definition also does not include maintenance or service workers who 

do not work at a mine site for frequent or extended periods.” 30 C.F.R. § 46.2(g)(2) (emphasis 

added). Lehigh also points to the regulatory provision listing the categories of workers who 

require site-specific training: 

You must provide site-specific hazard awareness training, as appropriate, 

to any person who is not a miner as defined by § 46.2 of this part but is present at 

a mine site; including: 

(1) Office or staff personnel; 

(2) Scientific workers; 

(3) Delivery workers; 

(4) Customers, including commercial over-the-road truck drivers; 

5

 Lehigh’s reference to circuit court precedent in support of a “nature of the work” test 

for miner status is unavailing. (Resp’t Br. 4; Resp’t Resp. 5.) The Fourth Circuit’s decision in 

Old Dominion Power Co. v. Donovan and the Seventh Circuit’s decision in Northern Illinois 

Steel Supply Co. v. Secretary of Labor dealt with whether a particular company was subject to 

the Mine Act’s jurisdiction, not whether a worker was a “miner.” Old Dominion, 772 F.2d 92, 

93 (4th Cir. 1985); Northern Illinois Steel, 294 F.3d 844, 849 (7th Cir. 2002). National 

Industrial Sand Ass’n v. Marshall concerned a challenge to the promulgation of the Secretary’s 

training regulations at 30 C.F.R. part 48, not the part 46 regulations at issue in this case. 601 

F.2d 689, 694 n.2 (3d Cir. 1979). Moreover, the section of National Industrial Sand cited by 

Lehigh deals with the definition of an “operator.” Id. at 701. Indeed, in National Industrial 

Sand, the court concluded that the Secretary’s part 48 definition of a “miner” was valid. Id. at 

707. The correct guidance for the definition of a miner in this case is the regulatory language 

and related cases, not precedent concerning separate issues. 

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(5) Construction workers or employees of independent contractors who 

are not miners under § 46.2 of this part; 

(6) Maintenance or service workers who do not work at the mine for 

frequent or extended periods; and 

(7) Vendors or visitors. 

30 C.F.R. § 46.11(b) (emphasis added). 

A plain reading of these sections demonstrates that Lehigh’s arguments are meritless. 

Here, the phrase “frequent or extended periods” is used to distinguish which maintenance or 

service workers must receive comprehensive training or site-specific training; thus, maintenance 

or service workers who work at a mine for frequent or extended periods of time must receive 

comprehensive training. 30 C.F.R. §§ 46.2(g), 46.2(i), 46.5(a), 46.11(b). The phrase “frequent 

or extended period” does not appear by any other classification of worker under the Secretary’s 

training regulations. Although a construction worker must be exposed to hazards of mine 

operations to be a “miner,” the lodestar of this analysis is whether the worker is at an active mine 

site, not whether he or she is at the mine for “frequent or extended periods.” 

The Secretary’s interpretation serves the purposes of the Mine Act. By the nature of their 

position at a mine, construction workers typically work for longer periods of time and are 

exposed to a greater variety of mine hazards, as opposed to maintenance or service workers, such 

as delivery people or truck repairmen, whose contact with the mine is inherently transient and 

serves much narrower purposes. As illustrated in this case, although some of the workers may 

have been at the mine for only a few days at a time as Lehigh contends, a fatal mine accident 

involving a partially-trained miner engaged in construction can occur at a moment’s notice. 

Based on the foregoing, I determine that the fuel station construction workers were 

“miners.”6

 Because these workers did not receive new miner training, were not “experienced 

miners,” and were not working in view of an experienced miner, I conclude that Lehigh violated 

30 C.F.R. § 46.5(a). 

6

 I reach this conclusion notwithstanding Lehigh’s position that the doctrine of unclean 

hands prevents classification of these workers as miners. According to Lehigh, because the 

Secretary does not classify her inspectors as miners, it follows that she is in violation of her own 

interpretation of the regulations may not prevail in this case. (Resp’t Resp. 3.) As a general 

matter, the doctrine of unclean hands is used to defend against a request for equitable relief, i.e., 

an injunction, “when the plaintiff’s improper conduct is directed at the defendant and relates to 

the subject matter of the action.” 11A Charles Alan Wright et al., Federal Practice and 

Procedure § 2946 (2d ed. 2011). As this case concerns neither a request for equitable relief nor 

the application of the Secretary’s training regulations to her inspectors, Lehigh’s contentions are 

meritless. 

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B. Gravity and S&S 

1. Gravity 

The Secretary asserts that Lehigh’s violation created the reasonably likely risk of fatal 

injuries and charged it as S&S. In support of her argument, the Secretary relies on the fuel 

station workers’ proximity to the heavy mobile equipment in use at the Tehachapi Plant. (Sec’y 

Br. 9–10.) According to the Secretary, an untrained miner could experience a fatal crushing 

injury caused by one of these vehicles, a concern underscored by the recent death of a miner who 

was hit by a truck at the Tehachapi Plant. (Id. at 10.) In addition to these hazards, further 

evidence included the possibility of electrical hazards at the fuel station, as well as hazards posed 

by the Tehachapi Plant’s kiln and tower. 

The purpose of comprehensive miner training is to educate miners about the panoply of 

risks posed by working at a mine site, including mobile equipment hazards. See 30 C.F.R. 

§ 46.5(b) (setting forth the requirements of new miner training). A partially-trained miner could 

easily find himself or herself in a dangerous situation involving a mine vehicle and suffer fatal 

injuries. Indeed, the Mine Act requires that if an inspector discovers a miner who has not 

received the safety training directed by the Act, the inspector must issue an order “declaring such 

miner to be a hazard to himself and to others, and requiring that such miner be immediately 

withdrawn from the mine . . . until such miner has received the training required by . . . [the] 

Act.” 30 U.S.C. 814(g)(1). 

At the hearing, Lehigh Safety Manager Bigley acknowledged that the Tehachapi Plant 

had various, significant hazards and conveyed that information to the fuel station workers during 

their site-specific training: 

We talk about the kiln and how hazardous that is and special procedures for 

entering the kiln and tower area. Although these guys were banned from all those 

areas, we still talked about them so they get a sense of . . . the uniqueness of a 

cement plant and how easy it is to find yourself in a spot you may not be familiar 

with . . . . [W]e had kind of impressed on them “Don’t go anywhere else because 

it’s a big cement plant, and things could happen. So stay here in your area and 

don’t wander off.” 

(Tr. 56:22–57:11.) 

Besides this information, Bigley’s training covered first aid procedures, evacuation plans, 

and reporting emergencies and hazards (Tr. 56:10–20, 76:9–22.) At the same time, Bigley 

revealed that a substantial basis underlying his conclusion not to offer new miner training to the 

workers stemmed from his assumption that they had related experience in construction, exposing 

them to large vehicles, as well as a provision in Lehigh’s contract with Valued Engineering 

stating that the workers had all required training. (Tr. 59:21–60:11, 78:6–14.) Altogether, 

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Bigley’s testimony reveals that Lehigh provided a superficial introduction to the Tehachapi 

Plant’s hazards, at best. 

As I concluded above, the fuel station workers were exposed to the Tehachapi Plant’s 

mine hazards, particularly mobile equipment moving about the mine site. The fuel station 

workers were located adjacent to the Seymour Building, closest to the side where Lehigh 

repaired and power-washed its mobile equipment. Although this equipment may not have driven 

through the fuel station while the workers were there, it certainly operated proximate to the fuel 

station, as evidenced by Inspector Reynolds’s observations of such vehicles during his 

inspection. Moreover, the Secretary presented uncontested evidence that a person recently died 

after being struck by a truck at the Tehachapi Plant, underscoring the real possibility of a severe 

accident. (Tr. 19:22–20:1.) The Mine Act presumes that an improperly trained miner is a hazard 

to himself and others, and these workers required new miner training to educate them about 

avoiding the risks at the plant.7

 Lehigh’s efforts to “kind of impress on” these workers about the 

dangers at the plant were inadequate, and assuming continued mining operations, I conclude that 

Lehigh’s violation was associated with a reasonably likely risk of fatal injuries to one miner. 

2. S&S 

As for whether this violation was S&S, Lehigh disputes the Secretary’s legal authority to 

cite any violation of 30 C.F.R. § 46.5(a) as S&S based on the Administrative Law Judge’s 

decision in Carmeuse Lime and Stone, Inc., 29 FMSHRC 815 (Sept. 2007) (ALJ). (Resp’t Br. 

6–7; Resp’t Resp. 8–9.) In Carmeuse Lime and Stone, the Administrative Law Judge determined 

that a training violation of a regulation under 30 C.F.R. part 48 could not be S&S because it was 

not a mandatory training standard, thus failing the first element of Mathies. 29 FMSHRC at 

820–21. 

The Mine Act “does not authorize [the Secretary] to designate as ‘significant and 

substantial’ a violation of a regulation . . . that is not a mandatory health or safety standard.” 

Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). To be a mandatory 

health or safety standard, it must be issued pursuant to section 101 of the Mine Act, which sets 

forth the procedures for promulgating mandatory health and safety standards. Id. at 43 n.2 

(citing 30 U.S.C. § 811). Here, the part 46 training regulations were indeed issued under section 

7

 Contrary to Lehigh’s assertions otherwise, its violation of 30 C.F.R. § 46.5(a) stems 

from the failure to provide proper training and the attendant risks to the partially trained workers, 

not from “a lack of paperwork.” (Resp’t Br. 7; Resp’t Resp. 8.) Additionally, Lehigh’s 

contention that Inspector Reynolds erred by forbidding the workers to work at the Tehachapi 

Plant until they received new miner training, rather than forbidding them from working at any 

mine until they were trained, is a non sequitur. (Resp’t Resp. 9.) The Mine Act gave Inspector 

Reynolds the authority only to send the workers away from where he discovered the violation, 

the Tehachapi Plant. Finally, as stated supra note 7, Lehigh’s reliance on the doctrine of unclean 

hands in support of reducing this violation’s gravity and negligence is irrelevant to this 

proceeding. (Id.) 

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101 of the Mine Act. Training and Retraining of Miners Engaged in Shell Dredging or 

Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface 

Limestone Mines, 64 Fed. Reg. at 53,130. Therefore, the part 46 training regulations are 

mandatory safety standards. I conclude that the Secretary is correct in her assertions that this 

violation may be designated as S&S. (Sec’y Br. 4–9.) 

Applying the four elements of the Mathies test for S&S, I conclude that the Secretary has 

established the first element by demonstrating the violation of a mandatory safety standard. 

Lehigh’s failure to provide new miner training created the hazard of a partially-trained miner, 

who, as recognized by the Mine Act and shown by the facts of this case, is a danger to himself 

and others, thus establishing the second element of Mathies. Finally, the violation created the 

reasonably likely risk of fatal injury, satisfying the final two elements of Mathies. Accordingly, 

I conclude that this violation was S&S. 

C. Negligence 

The Secretary argues that because Lehigh Safety Director Bigley had a background in 

mine safety and training and because he knew that the workers at the fuel station did not have 

new miner training, Lehigh’s negligence was “high.” (Sec’y Br. 10–11.) As stated above, 

Bigley admitted that he did not provide new miner training to the workers at the fuel station site. 

As for Bigley’s qualifications, the following exchange took place concerning Bigley’s familiarity 

with the Secretary’s safety training regulations: 

Q. And your experience with the Part 46 training, and providing training, and 

things of that nature, could you describe that in general terms, please[?] 

A. Apparently, I was doing Part 46 training before there was a Part 46. Back 

in [sic] early ‘90s, I obtained a part 48 training card for surface mines. 

And even when I wasn’t in the mining industry, I still occasionally 

worked as a freelance contractor teaching occasional mine safety classes in either 

the Midwest or in Arizona for folks who were going to be going on mine 

properties who needed a refresher or additional training. 

Q. Suffice it to say, you feel very comfortable in the requirements of Part 46; 

would that be true? 

A. I believe so, yes. 

(Tr. 46:25–47:14 (emphasis added).) Additionally, Bigley authored Lehigh’s post-trial brief and 

response, which are replete with legal citations purporting to support Lehigh’s position on the 

Secretary’s training regulations. Based on the record before me, I conclude that Lehigh’s 

negligence should be measured against the standard of care of a safety expert specializing in the 

Secretary’s training regulations. 

Here, Lehigh provided site-specific training to the construction workers, which covers 

many of the same subjects, albeit in less detail, as new miner training. Compare 30 C.F.R. 

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§ 46.5(b) (setting forth requirements of new miner training) with § 46.11(d) (setting forth 

requirements of site-specific training). Lehigh also took some measures to reduce, though not 

eliminate, the workers’ exposure to mine hazards. Nevertheless, as noted above, the Secretary 

clearly stated her position concerning a construction worker’s status as a miner when he or she is 

present at an active mine site, such as a Lehigh’s. A safety expert specializing in the Secretary’s 

training regulations, particularly one familiar with legal authorities such as the Federal Register, 

would have been familiar with the Secretary’s position on a construction worker’s status as a 

miner and complied accordingly. Therefore, I affirm the Secretary’s determination that Lehigh 

engaged in high negligence in committing this violation. 

D. Civil Penalty 

Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six 

criteria in assessing a civil penalty: the operator’s history of previous violations, the 

appropriateness of the penalty relative to the size of the operator’s business, the operator’s 

negligence, the penalty’s effect on the operator’s ability to continue in business, the violation’s 

gravity, and the demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of a violation. 30 U.S.C. § 820(i). 

The parties stipulated that Lehigh promptly abated its violation, and the evidence shows 

that Lehigh’s demonstrated good faith in attempting to achieve rapid compliance after receiving 

the Secretary’s citation. Additionally, the parties stipulated that the proposed penalty assessment 

of $12,248 would not affect Lehigh’s ability to remain in business. They have also stipulated 

that Lehigh’s history of violations, as shown in Exhibit A, is correct. Exhibit A, however, 

reveals only the number of history points associated with this violation. I note the Secretary did 

not provide the Assessed Violation History Report detailing the specific violations underlying 

the effect of Lehigh’s history of violations on her proposed penalty assessment under 30 C.F.R. 

part 100. Nevertheless, based on the parties’ stipulation, Lehigh’s history of violations is 

reflected in my penalty determination. Finally, I have determined that Lehigh engaged in high 

negligence in committing an S&S violation that created the reasonably likely risk of fatal injury 

to one miner. Based on all of these considerations, I conclude that the Secretary’s proposed 

penalty of $12,248 is appropriate. 

VII. Order 

In light of the foregoing, Citation No. 6440444 is hereby AFFIRMED. Lehigh is 

ORDERED to pay a civil penalty of $12,248 within 40 days of this decision. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

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Distribution: 

Brian Bigley, Safety Director, Lehigh Southwest Cement Company, 13573 Tehachapi
 

Boulevard, Tehachapi, CA 93561
 

D. Scott Horn, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
 

2060 Peabody Road, Suite 610, Vacaville, CA 95687
 

/jts 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

December 30, 2011

 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), :

 Petitioner : Docket No. KENT 2009-444

 : A.C. No. 15-18911-170135-01 

v. :

 : Docket No. KENT 2009-445

 : A.C. No. 15-18911-170135-02

 CAM MINING, LLC : 

Respondent : 

: 

Docket No. KENT 2009-446

A.C. No. 15-18911-170135-03 

DECISION ON REMAND 

Background 

These cases are before me under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq., (2006) (“the Act”). On September 21, 2011, the undersigned judge issued a summary 

decision based upon facts presented by the Respondent and undisputed by the Secretary of Labor 

(“Secretary”) finding that the Secretary had shown no factually supported reason (adequate cause) as 

to why her petitions for assessment of civil penalties were not timely filed and dismissing the petitions. 

As stated in that decision, CAM Mining, LLC (“CAM”) had filed, on August 26, 2011, a motion for 

summary decision based on the Secretary’s failure to establish adequate cause for her late filing of the 

petitions at issue. It was also noted therein that the Secretary had not responded to the motion and that 

the Respondent’s proffered statement of facts was therefore accepted as undisputed1

. Applying 

Commission Rule 67(b) and constrained by Commission precedent and by the undisputed facts 

presented, the motion was granted. One of the effects of the summary decision however was to 

modify a prior order of another judge in the case which had been issued on the now undisputed 

misrepresentation of facts set forth in an affidavit submitted by the Secretary’s representative. 

1 In an unrelated telephone conversation several weeks after the motion for 

summary decision was filed, counsel for the Secretary inquired as to when this judge would be 

ruling on that motion. The undersigned responded that he had been waiting for a response from 

the Secretary. Having thereby been given additional notice of the need to respond, the Secretary, 

inexplicably, still failed to respond or otherwise correct her misrepresentation and the summary 

decision was thereupon issued. The Secretary now alleges that the undersigned abused his 

discretion in issuing that decision. It is noted that the Secretary’s underlying position has been 

that she does not need to demonstrate “adequate cause” (See Secretary’s Motion For Leave to 

File Out of Time p.3). 

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In her petition for review before the Commission, the Secretary did not challenge the summary 

decision on its merits and acknowledges that a prior determination in these cases by another judge 

would not in any event be subject to the “law of the case” doctrine or otherwise be binding on this 

judge. Furthermore she does not claim that the summary decision herein, which was based on 

undisputed facts, was lacking in substantial evidence. Indeed, the Secretary has never alleged that 

the facts as presented by CAM are in dispute and there is no record evidence that her failure to file 

a timely petition was in fact due to the claimed “delivery error” which was the sole reason the 

Secretary advanced as “adequate cause.” 

Remand 

The summary decision in these cases (based on undisputed facts) was vacated and remanded 

on the grounds that it was “essential” for the Commission to know why an earlier order by another 

judge in the case (issued on a misrepresentation of facts in an affidavit submitted by the Secretary) 

was not followed.2 Under long-standing and well-established precedent, this Commission has 

required the Secretary to demonstrate adequate cause for delays in filing penalty petitions. See Salt 

Lake County Road Department 3 FMSHRC 1714, 1716 (July 1981)3. In these cases, the Secretary 

has not only failed to sustain her burden of demonstrating adequate cause for her delay but 

misrepresented material facts in an affidavit under oath before that prior judge in her apparent 

attempt to claim that her delay was caused by a “delivery error.” 

In issuing his previous order, the judge indicated that the affidavit submitted by the Secretary 

alleged a “delivery error” as her “adequate cause” for late filing. However, since that affidavit has 

now been shown to have been based on a misrepresentation of facts and that the delay was not in 

fact based on the claimed “delivery error,” that order could not be permitted to stand without 

remediation4. The judge also noted in his order that “given the unprecedented number of penalty 

petitions pending before the Secretary, strict adherence to the 45 day time line [for filing penalty 

petitions] is unrealistic.” It is noted however that the Secretary never claimed that her delay was due 

to any number of pending penalty petitions. 

Accordingly, since the Secretary submitted to the prior judge an affidavit misrepresenting 

that the reason for her delay was because of a “delivery error” and failed to provide any other 

grounds for her delay, she had failed before that prior judge to sustain her burden of proving 

“adequate cause” for her delay in filing the penalty petitions herein. 

2 On November 11, 2011 the Secretary filed a brief in which she argued that the 

decision on remand should address issues beyond the scope of the Commission’s remand order. 

Since those issues are, indeed, beyond the scope of that remand, they are not addressed herein. 

3 It is noted however that the Commission has recently requested briefing in several 

cases on the question of whether the Salt Lake precedent should be reconsidered. 

4 There is no evidence that the misrepresentation was intentionally false but at the 

same time no effort has been made to correct the misrepresentation. 

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Since the prior judge’s order allowing late filing could have been premised only on the sole 

reason provided by the Secretary for “adequate cause” and that reason has been shown by 

undisputed evidence to have been misrepresented, that prior order could not be permitted to stand 

without remediation. 

/s/ Gary Melick

Gary Melick

Administrative Law Judge

(202) 434-9977 

Distribution: 

Lora J. Manson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, 

Suite 420, Nashville, TN 37219 

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box 273, 

Charleston, WV 25321 

/to 

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ADMINISTRATIVE LAW JUDGE ORDERS
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

December 12, 2011 

: CIVIL PENALTY PROCEEDINGS

:

: Docket No. WEST 2009-0208 

: A.C. No. 42-02074-168807-01 

: 

: Docket No. WEST 2009-0209 

: A.C. No. 42-02074-168807-02 

: 

: Docket No. WEST 2009-0210 

: A.C. No. 42-02074-168807-03 

: 

: Docket No. WEST 2009-0342 

: A.C. No. 42-02074-171897-01 

: 

: Docket No. WEST 2009-0591 

: A.C. No. 42-02074-177140 

: 

: Docket No. WEST 2009-0916 

: A.C. No. 42-02074-185463 

: 

HIDDEN SPLENDOR RESOURCES, INC., : Docket No. WEST 2009-1072 

Respondent : A.C. No. 42-02074-188416-02 

: 

: Docket No. WEST 2009-1162 

: A.C. No. 42-02074-191367 

: 

: Docket No. WEST 2009-1451 

: A.C. No. 42-02074-197393 

:

 : Horizon Mine 

ORDER DENYING RESPONDENT’S MOTION TO
 

REOPEN THE RECORD
 

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 Hidden Splendor Resources, Inc. (“Hidden Splendor”) pursuant to sections 105 and 110 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). 

At a hearing held March 22-25, 2011, the parties presented testimony and exhibits on 11 orders 

of withdrawal issued under section 104(d)(2) of the Mine Act and 12 citations issued under 

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section 104(a). Post-hearing briefs were filed on June 2, 2011. Because of the large number of 

cases pending before me, I have not yet issued a decision on the merits in these cases. 

On December 2, 2011, counsel for Hidden Splendor filed an informal motion to reopen 

these proceedings to present financial information that it considers to be relevant to the “effect 

on the ability to continue in business” criterion set forth in section 110(i) of the Mine Act. 30 

U.S.C. § 820(i). The Secretary opposed the motion. 

The parties presented their arguments on this issue during a conference call held on 

December 9, 2011. Counsel for Hidden Splendor argues that her motion to reopen should be 

granted based on the three factors set forth in the Commission’s decision in Kerr-McGee Coal 

Corp. 15 FMSHRC 352, 357 (March 1993) (citing 6A Moore’s Federal Practice ¶ 59.04[13] (2d 

ed. 1992)). In that decision, the Commission held that in determining whether to grant a motion 

to reopen, “it is appropriate to consider the time when the motion was made, the character of the 

additional evidence, and the effect of granting the motion.” Id. 

Hidden Splendor states that, in a recent filing with the Securities and Exchange 

Commission (“SEC”), it was revealed that its financial position has deteriorated since the date of 

the hearing. It wishes to file this SEC report with this court for me to consider when addressing 

the effect on the ability to continue in business criterion. It contends that the motion was timely 

made, after the hearing but before the issuance of the decision. It also argues that the character 

of the additional evidence is strictly of a financial nature. This evidence will not address any of 

the substantive issues presented at the hearing but will only concern the appropriateness of any 

civil penalties assessed by this court. Hidden Splendor relies, in part, on the Commission’s 

decision in Georges Colliers, Inc., 23 FMSHRC 822 (Aug. 2001). In that decision, the 

Commission held that a Commission judge abused his discretion when he declined to consider 

evidence of the mine operator’s financial condition. The Commission held that a judge must 

consider all of the penalty criteria set forth in section 110(i) of the Mine Act. Finally, Hidden 

Splendor argues that the effect of granting its request to reopen will not adversely affect the 

disposition of this proceeding or the safety of miners working at the Horizon Mine. All of the 

citations and orders were timely abated by Hidden Splendor. It recognizes that granting the 

motion could possibly delay the issuance of the decision on the merits. 

The Secretary opposes the motion. She notes that the hearing was held nine months ago, 

briefs have been filed, and the citations and orders were issued in 2008. These cases were 

included in the backlog project and are to be decided as quickly as possible. Granting the motion 

would significantly delay this proceeding because counsel for the Secretary would need to 

engage a financial analyst within the Department of Labor to evaluate the financial information 

provided and then that analysis would need to be reviewed by counsel to determine its relevance 

on the ability to continue in business criterion. The Secretary also points to the fact that the 

parties entered into a stipulation at the hearing on the effect on the ability to continue in business 

criterion. Hidden Splendor stipulated as follows: “If paid in equal monthly installments over 12 

months, the proposed penalties would not affect Hidden Splendor’s ability to continue in 

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business.” (Stip. ¶ 7). In response, Hidden Splendor argued that its financial condition has 

changed since March 2011. 

For the reasons set forth below, Hidden Splendor’s motion to reopen the record is denied. 

Hidden Splendor is a fully-owned subsidiary of America West Resources, Inc. That company is 

headquartered in Salt Lake City, Utah, and it is publicly traded on the NASDAQ exchange as 

AWSR. It is the nature of the mineral extraction industry that profits earned or losses incurred 

by coal mining companies are often very volatile. A coal mining company can earn record 

profits one quarter and report a large loss in another quarter. Publicly traded companies are 

required to file quarterly reports with the SEC on Form 10-Q. This form and other related forms 

report financial results for the previous quarter and the year to date. Even if this form or another 

SEC form shows a net loss for the quarter or for the year, that fact does not establish that the 

penalties in these cases would affect Hidden Splendor’s ability to continue in business. 

Financial statements showing a net loss are not generally sufficient to establish that civil 

penalties assessed by the Commission will adversely affect an operator’s ability to continue in 

business.1 See generally Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 (April 1994). It is 

entirely possible that the financial condition of America West Resources will improve in 2012. 

Thus, I find that the character of the proposed evidence would not advance the disposition of 

these cases. 

I also find that the motion to reopen was not timely filed and granting the motion would 

adversely affect the timely resolution of these cases. The motion was filed well after the close of 

the record. Considering the time required for the Secretary to analyze the financial report that 

Hidden Splendor seeks to submit and the time it will take this court to review the report and the 

Secretary’s response, reopening the record could delay the issuance of the decision. It should be 

noted that all of the other civil penalty criteria in section 110(i) are applied by Commission 

judges looking at facts as they existed at the time the citations were issued. Under Hidden 

Splendor’s logic, an operator would be able to reopen the record to provide more up-to-date 

information on its financial condition as the case works its way through litigation. Hidden 

Splendor already stipulated that the penalties proposed by the Secretary would not affect its 

ability to continue in business if it can pay the penalties over a 12-month period. It did not seek 

to introduce any information regarding its finances at the time of the hearing. The Secretary’s 

total proposed penalty in these cases was $455,902. The parties agreed to settle many citations 

and orders prior to the hearing for a total penalty of $82,644. I ordered that these penalties be 

paid pursuant to orders granting partial settlement. The Secretary’s total proposed penalty for 

the 23 citations and orders adjudicated at the hearing is $245,265.2 

1

 A net loss recorded by a small, closely-held company or family-owned business may be 

sufficient under this criterion. America West Resources does not fit into either category. 

2

 These figures may not be exact. The Secretary also vacated one of the citations and 

one of the orders at the hearing and the parties agreed to settle an additional citation. The 

(continued...) 

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The Commission has held that a judge must make findings of fact on each of the statutory 

criteria to provide the operator with the required notice as to the basis of the penalty assessed and 

to provide the Commission and the courts with the necessary foundation on which to review 

whether the penalties assessed by the judge were appropriate. Kerr-McGee at 825, quoting 

Sellersburg Stone Co., 5 FMSHRC 287, 292-93 (March 1983), aff’d 736 F. 2d 1147 (7th Cir. 

1984). At the hearing, Hidden Splendor agreed that the Secretary’s proposed penalty would not 

affect its ability to continue in business. Nothing in the record or in the statements of counsel for 

Hidden Splendor when discussing its motion to reopen suggest that the payment of this penalty 

or a similar penalty over a 12-month period would seriously risk putting Hidden Splendor or 

America West Resources out of business. Reopening the record in these cases for the purpose of 

putting into the record a report filed with the SEC by America West Resources or other financial 

information would not advance my consideration of the statutory civil penalty criteria in section 

110(i) of the Mine Act. 

For the reasons set forth above, Hidden Splendor’s motion to reopen the record in these 

cases is DENIED. 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Alicia A. W. Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800 , Denver, CO 80202 

Willa Perlmutter, Esq., Crowell & Moring, 1001 Pennsylvania Ave., NW Washington, DC 

20004-2595 

RWM 

2

(...continued)
 

penalties for those three items are not included in this total.
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

December 20, 2011 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
 

MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. WEVA 2011-862 

Petitioner A.C. No. 46-08646-241826-01 

v. 

ROCK N ROLL COAL COMPANY, Mine: Mine No. 3
 

INC.,

 Respondent
 

ORDER REJECTING SETTLEMENT MOTION 

Before: Judge McCarthy 

This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The parties have 

settled the matter and the Secretary has filed a motion pursuant to Commission Rule 31, 29 

C.F.R. § 2700.31, seeking approval of the proposed settlement. The Solicitor has requested that 

Citation No. 8093045 be modified to change the classification of the citation from a 104(d)(1) 

citation to a 104(a) citation and to reduce the level of negligence from “high” to “moderate.” 

The modifications are accompanied with a reduction in the penalty from $13,609.00 to 

$3,690.00. 

The motion submitted by the Solicitor, however, fails to predicate the modifications upon 

any factual support. Commission Rule 31(b)(1), 29 C.F.R. § 2700.31(b)(1), mandates that for 

each violation, the “motion to approve a penalty settlement” must include “facts in support of the 

penalty agreed to by the parties.” The Commission has long held that “settlements are 

committed to the ‘sound discretion’ of the Commission and its judges” and that judges are not 

“bound to endorse all proposed settlements.” See, e.g., Madison Branch Management, 17 

FMSHRC 859, 864 (June 1995) (quoting Knox County Stone Co., 3 FMSHRC 2478, 2480 

(November 1981)). In the exercise of such discretion, judges must be provided with enough 

facts to make a reasonably informed decision. 

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In this case, the Settlement Motion fails to provide the required information, inasmuch as 

no facts have been provided in support of the proposed penalty reduction agreed to by the 

parties. Therefore, the Motion is REJECTED. The Secretary may submit an Amended Motion 

containing the required information within fifteen days of receipt of this order for my 

consideration. Otherwise, this case will be set for hearing pursuant to Commission Rule 51, 29 

C.F.R. § 2700.51. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

James F. Bowman, Rock N Roll Coal Company, Inc., P.O. Box 99, Midway, WV 25878 

/tjr 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

December 22, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. CENT 2011-1193 

Petitioner : A.C. No. 34-02105-262625 

: 

v. : 

: 

SPIRO MINING, LLC, : 

Respondent : Mine: Calder Mine 

ORDER DENYING RESPONDENT’S MOTIONS TO DISMISS 

This case is before me upon the Petition for the Assessment of Civil Penalty (“Petition”) 

filed by the Secretary of Labor on October 20, 2011, pursuant to section 105 of the Federal Mine 

Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815. The Secretary issued to 

Respondent Spiro Mining, LLC (“Spiro”), a citation under section 104(a) of the Mine Act, 

alleging a violation of section 103(a) of the Mine Act at Spiro’s Calder Mine. Spiro filed both 

its Alternative Answer to Secretary of Labor’s Petition (Opposing the Assessment of Civil 

Penalty) and its Motions to Dismiss Action for Failure to State a Claim and for Lack of MSHA 

Jurisdiction (“Mot. to Dismiss”) on November 17, 2011. The Secretary filed her Response to 

Respondent’s Motions to Dismiss on November 21, 2011. Thereafter, Spiro filed a Reply to 

Secretary’s Dismissal Motions Response on November 28, 2011. 

In its two-page initial motion and its equally terse reply, Spiro cites to no case law but 

relies solely on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to argue, 

respectively, that the Secretary lacks subject matter jurisdiction and that she has failed to state a 

claim upon which relief may be granted. No affidavits or other evidence were submitted in 

support of Spiro’s contentions. In response, the Secretary cites to Commission case law arguing 

she has jurisdiction in this case and points to Exhibit A attached to her Petition as proof she has 

set forth a claim. 

As a threshold matter, the applicability of the Federal Rules of Civil Procedure to 

Commission cases is addressed in Commission Procedural Rule 1(b), which states as follows: 

“On any procedural question not regulated by the Act, these [Commission] Procedural Rules, or 

the Administrative Procedure Act . . . , the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure and the Federal Rules of Appellate 

Procedure.” 29 C.F.R. § 2700.1(b). The Commission’s Procedural Rules do not provide a 

procedure analogous to Rule 12, Fed. R. Civ. P. 12; nevertheless, a case before a Commission 

Judge certainly may be dismissed if the Secretary fails to establish a violation of the Mine Act as 

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a matter of law. See 29 C.F.R. § 2700.67 (setting forth rules for summary decision by a 

Commission Judge). I address each of Spiro’s arguments below. 

Fed. R. Civ. P. 12(b)(1) – Lack of Subject Matter Jurisdiction 

Spiro argues that the Secretary lacks subject matter jurisdiction over Spiro’s operation at 

the Calder Mine because the mine’s “initial ‘operations’ had not ever yet ‘produced products’ or 

‘affected MSHA/interstate commerce.’” (Mot. to Dismiss 1.) The Mine Act provides that 

“[e]ach coal or other mine, the products of which enter commerce, or the operations or products 

of which affect commerce, and each operator of such mine, and every miner in such mine shall 

be subject to the provisions of this chapter.” 30 U.S.C. § 803. In order for the Secretary to 

establish jurisdiction under the Mine Act, she must prove that a company is an “operator” of a 

“coal or other mine.” 30 U.S.C. § 802(d), (h)(1). 

Section 3 of the Mine Act defines “coal or other mine” as: 

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to be used in, or resulting from, 

the work of extracting such minerals from their natural deposits in nonliquid 

form, . . . or used in, or to be used in, the milling of such minerals, or the work of 

preparing coal or other minerals, and includes custom coal preparation facilities. 

30 U.S.C. § 802(h)(1). 

The Commission and reviewing courts have consistently interpreted the Mine Act’s 

jurisdiction in light of its legislative history, which exhorts “that what is considered to be a mine 

and to be regulated under the Act be given the broadest possible interpretation, and it is the 

intent of this [Senate] Committee that doubts be resolved in favor of inclusion of a facility within 

the coverage of the Act.” S. Rep. No. 95-181, at 12 (1977). See, e.g., Donovan v. Carolina 

Stalite Co., 734 F.2d 1547, 1554 (D.C. Cir. 1984) (citing this same legislative history in support 

of Mine Act’s broad jurisdiction); Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 797 (4th 

Cir. 1981) (same); Calmat Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005) (same). 

In Cyprus Industrial Minerals Co. v. Federal Mine Safety and Health Review 

Commission, the Ninth Circuit considered the operator’s argument that its “site was not a mine 

because the work underway consisted of driving exploratory drifts in search of a commercially 

exploitable deposit of talc rather than in the extraction of minerals.” 664 F.2d 1116, 1117 (9th 

Cir. 1981). The court noted the Mine Act’s expansive jurisdictional language and rejected the 

operator’s argument, reasoning that the “activity at [the site] could hardly be described as 

anything but mining.” Id. at 1119. 

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Similarly, Spiro argues that its preliminary operations at the Calder Mine do not fall 

under the ambit of the Mine Act. In the face of long-standing legal precedent that would support 

the Secretary’s jurisdiction in this case, Spiro offers no factual allegations or legal authorities in 

support of its arguments. Accordingly, I reject Spiro’s arguments as being without merit. 

Fed. R. Civ. P. 12(b)(6) – Failure to State a Claim 

Alternatively, Spiro argues this case should be dismissed because the Secretary failed to 

state a claim upon which relief can be granted. (Reply to Sec’y Resp. to Resp’t Mot. to Dismiss 

2.) Spiro avers that Exhibit A of the Petition “only sets forth a citation or order that is at issue in 

this litigation, and not a claim.” (Id.) The Advisory Committee Notes to the Federal Rules of 

Civil Procedure state with regard to Rule 12(b)(6) that such a motion may be treated as a motion 

for summary judgment and disposed of as such. Fed. R. Civ. P. 12 (Advisory Committee Notes, 

1946 Amendment, Note to Subdivision (b)). I thus decide Spiro’s Rule 12(b)(6) motion in view 

of Commission Procedural Rule 67, 29 C.F.R. § 2700.67, on motions for summary decision. 

Here, the Secretary alleges a violation of section 103(a) of the Mine Act, which directs 

the Secretary to inspect the Nation’s mines and confers her the right of entry to any mine subject 

to the Act’s jurisdiction. 30 U.S.C. § 813(a). It is well-settled that “the Secretary . . . may issue 

citations for interference with the conduct of an inspection. MSHA’s inspection manual directs 

that in the event an inspector is threatened, harassed, or refused entry into a mine, he should 

immediately issue a citation alleging a violation of Section 103(a).” Timothy M. Biddle, 1 Coal 

Law and Regulation § 8.04 (1989). Here, the Secretary’s citation narrative states verbatim: 

While I was issuing a citation to the Contractor for working men in the face of an 

order, Jon Marusich, drove up in his pickup and bumped me in the hip with his 

left front headlight. This was witnessed by two Spiro Mining, LLC employees. 

Also another MSHA Inspector witnessed this act. This incident happened at the 

north end of the mining area on the north side of the sediment pond. 

(Petition, Ex. A.) 

MSHA’s Program Policy Manual clearly outlines the seriousness of interfering with an 

MSHA inspector. Although no criminal violation is before me, section I.103-1 of MSHA’s 

manual, titled “Assaulting, Intimidating or Impeding Inspectors,” notes in relevant part, the 

potential criminal penalties for interfering with an MSHA inspector: 

Section 111 of Title 18 of the United States Code makes it a federal crime to 

forcibly assault, resist, oppose, impede, intimidate or interfere with any person 

designated in Section 1114 of Title 18 while such person is engaged in, or on 

account of, the performance of his/her official duties. It is a crime to assault, 

intimidate or impede MSHA employees who are assigned to perform 

investigative, inspection, or law enforcement functions. Thus, any person who 

assaults, intimidates or impedes an MSHA inspector, while the inspector is 

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engaged in, or on account of, the performance of his/her official duties, is subject 

to investigation and arrest by the FBI, prosecution by the U.S. Attorney in the 

federal courts, and to a fine and/or imprisonment. 

I MSHA, U.S. Dep’t of Labor, Program Policy Manual, Section 103-1 (Feb. 2003), at 6. 

Indeed, both the Commission and its Judges have recognized that the Secretary’s right of entry 

includes the right to be free from mine operator interference that would frustrate her legitimate 

objectives. Calvin Black Enters., 7 FMSHRC 1151 (August 1985) (finding management’s 

requirement of mine owner’s written permission for inspectors to enter mine site violated 

§ 103(a) by effectively preventing inspectors access to mine); United States Steel Corp., 

6 FMSHRC 1423 (June 1984) (affirming citation for violation of § 103(a) when operator refused 

to provide transportation to inspector which effectively prevented him from inspecting accident 

scene); Knock’s Building Supplies, 20 FMSHRC 535, 548-49 (May 1998) (ALJ) (upholding 

violation of section 103(a) after threatening an inspector with a shotgun). 

Based on the current record before me, I determine that the Secretary has alleged 

interference with her duty to inspect the Nation’s mines, which, if proven, would constitute a 

violation of section 103(a) of the Mine Act. Spiro does not contradict the allegations stated in 

the citation, nor does Spiro cite to any case law to support a contention that it is entitled to 

summary decision as a matter of law. Indeed, Spiro offers nothing but the bald allegation that 

the Secretary has failed to state a claim. As the Secretary has indeed stated an alleged violation 

of the Mine Act, I reject Spiro’s argument to the contrary as being without merit.1 

1

 In her response to Spiro’s motion, the Secretary notes that Spiro filed similar motions in 

three dockets before Judge Andrews, which were denied on July 29, 2011. Judge Andrews 

subsequently denied Spiro’s Motion for Certification of 7/29/2011 Interlocutory Ruling on 

August 18, 2011. Following these orders, the Commission denied Spiro’s Petition for 

Interlocutory Review on October 12, 2011, as well as Spiro’s Petition for Reconsideration on 

November 8, 2011. By signing a document filed with the Commission Spiro’s counsel certifies: 

[t]hat he has read the document; that to the best of his knowledge, information, 

and belief formed after reasonable inquiry it is well grounded in fact and is 

warranted by existing law or a good faith argument for extension, modification, or 

reversal of existing law; and that it is not interposed for any improper purpose, 

such as to harass or to cause unnecessary delay or needless increase in the cost of 

litigation. 

29 C.F.R. § 2700.6(b). The Commission’s Rules provide for disciplinary proceedings for any 

failure to comply with its rules. Id. § 2700.80(b). 

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Based on the forgoing, Spiro’s Motions to Dismiss for lack of subject matter jurisdiction 

under Rule 12(b)(1) and for failure to state a claim upon which relief can be granted under Rule 

12(b)(6) are hereby DENIED. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Matthew P. Sallusti, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin 

Street, Suite 501, Dallas, TX 75202 

Tony Joe “T.J.” Huffman, Esq., T.J. Huffman, Attorney at Law, P.O. Box 453, Spiro, OK 74959 

/jts 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

December 29, 2011 

PATTISON SAND COMPANY, LLC, : CONTEST PROCEEDING

 Contestant :

 : Docket No. CENT 2012-65-RM

 : Citation No. 8660155; 10/20/2011 

v. :

 : 

SECRETARY OF LABOR, : Mine ID: 13-02297

 MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), : Pattison Sand Company Mine

 Respondent : 

ORDER DENYING CONTESTANT’S MOTION TO DISMISS 

AND MOTION FOR SUMMARY DECISION 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., (“the Act”). Pattison Sand Company, LLC (“Pattison”) is contesting Citation No. 8660155 

issued by an inspector for the Department of Labor’s Mine Safety and Health Administration 

(MSHA) for a violation of the standard at 30 C.F.R. § 57.3200. That standard provides as follows: 

Ground conditions that create a hazard to persons shall be taken down or supported 

before other work or travel is permitted in the affected area. Until corrective work 

is completed, the area shall be posted with a warning against entry and, when left 

unattended, a barrier shall be installed to impede unauthorized entry. 

The citation was issued on October 20, 2011 and the case was thereafter scheduled for 

expedited hearings to commence on November 8, 2011. The citation was terminated however on 

October 25, 2011 after the alleged violative conditions were abated. Since expedited hearings were 

no longer necessary, the hearings were cancelled. 

Contestant thereafter filed the motion to dismiss and motion for summary decision now 

before me. Under Commission Rule 67(b) “[a] motion for summary decision shall be granted only 

if the entire record including the pleadings, depositions, answers to interrogatories, admissions and 

affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the moving 

party is entitled to summary decision as a matter of law.” 

In connection with its motion for summary decision Contestant set forth the following 

alleged undisputed facts: 

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1. On October 20, 2011, Inspector Anthony D. Runyon, a designated representative of 

MSHA, issued the Citation to Pattison Sand for an alleged violation at the Pattison Sand Company 

Mine. Exhibit A (omitted). 

2. The Citation was issued under Section 104(a) of the Mine Act. It alleges moderate 

negligence, an S&S violation of 30 C.F.R. § 57.3200, a reasonable likelihood of injury or illness, 

and a reasonable expectation of lost of workdays or restricted duty. Id 

3. The Citation alleges: 

Ground conditions that create a hazard to miner were not taken down or 

supported before work and travel active was allowed to presume between isle 

4AI and 4AF. Multiple cracks and loose material is visible in this area. The 

south side of 4AF shows visible signs of separation and loose material. The 

crack then travels from 4AF to 4AG north side showing in some area 

approximately 4 inch deep cracks into the back continuing on to south side 

of 4AG to a brow where multiple cracks exist ranging from 4 to 12 inch into 

the back and approximately 6 inch wide, the crack continues to the south side 

of 4AH with a single crack to north side of 3AI where multiple crack exit 

from the single crack to the south side of 3AI. The total length of the crack 

is approximately 242 feet long. 

Spalling or commonly known as pinch out as also occurred on the north half 

of pillar 4AI where the rib and back meet for approximately 25 feet. The 

pinch out measured approximately 6 feet down from the back and 3 feet into 

the pillar giving it a V shape at the top of the pillar. 

This area was mechanical scale 7 days ago and has been hand scaled since 

then giving an impression that not only scaling will be enough to control this 

material from cracking an falling. 

A daily inspection from a high lift has not been conducted as required by 

ground control plan. 

This mine has strong history of back and rib falls causing injuries to miners. 

Id 

4. The Citation set the termination due date as October 28, 2011. Id 

5. In reference to the termination due date, Inspector Runyon wrote the following on 

the Citation: 

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The termination due date has been extended to allow the Mine Operator time to correct the 

cited condition on the basis that only miners correcting the condition are allowed in the cited 

area. 

6. Inspector Runyon modified the Citation on October 20, 2011 correcting 

typographical errors and deleting entirely the allegations in the second and third paragraphs of the 

Citation narrative. Id. 

7. Inspector Runyon terminated the Citation on October 20, 2011. Id 

While these facts (except for the date the citation was terminated) indeed appear to be 

undisputed, Contestant, in its arguments, then intermingles other alleged material facts which are 

clearly in dispute, including its assertion that the subject citation was actually a withdrawal order 

closing down the entire mine. The Secretary has submitted an affidavit and documentation to dispute 

the latter allegations. Underlying both motions is Contestant’s argument that the provisions of the 

citation limiting access to the cited hazardous area to “only miners correcting the condition” closed 

the entire mine and, as such, is not permitted under section 104(a) of the Act. 

Since both motions are premised on the same disputed factual allegations both motions must 

be denied and the disputed issues reserved for full evidentiary hearings. 

Order 

Contestant’s motion to dismiss and motion for summary decision are denied. 

/s/ Gary Melick 

Gary Melick 

Administrative Law Judge 

202-434-9977 

Distribution: (Certified Mail) 

Jamison P. Milford, Esq., Office of the Regional Solicitor, U.S. Department of Labor, Two 

Pershing Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108 

David Farber, Esq., Henry Chajet, Esq., and Brian Hendrix, Esq., Patton Boggs, LLP, 2550 M. 

Street, NW, Washington, DC 20037 

/to 

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