MARCH AND APRIL 2010 

COMMISSION ORDERS 

03-05-2010 Highland Mining Company WEV A 2009-688 Pg.251 

04-01-2010 Tannac America, LLC. SE 2010-538-M Pg.254 

04-26-2010 Cedar Creek Coal, LLC. VA 2009-378 Pg.257 

04-26-2010 A.l.M., LLC. WEVA 2009-1892 Pg. 261 

04-26-2010 Craig's Operated Equipment WEST 2009-1273-M Pg. 264 

04-27-2010 Coal Haulers, Inc. WEV A 2009-1673 Pg.268 

04-27-2010 Wendling Quarries, Inc. CENT 2009-743-M Pg. 271 

04-27-2010 White County Coal, LLC. LAKE 2009-588 Pg.274 

04-27-2010 Martin Marietta Materials, fuc. SE 2010-394-M Pg.278 

04-27-2010 The Olen Corporation LAKE 2010-322-M Pg. 281 

04-27-2010 KWV Operations, LLC. WEVA 2009-1038 Pg. 285 

04-27-2010 Newtown Energy, fuc. WEV A 2010-590 Pg.287 

04-27-2010 Glacier Stone Supply, LLC. WEST 2010-630-M Pg.290 

04-27-2010 Barton Mines Company, LLC. YORK2010-159M Pg. 293 

04-27-2010 Table Rock Asphalt Construction, Inc. CENT 2010-444-M Pg.297 

04-27-2010 Dix River Stone KENT 2009-1299-M Pg.300 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-02-2010 Lakeview Rock Products, fuc. WEST 2009-858-M Pg.305 

03-05-2010 RS & W Coal Company, fuc. PENN 2010-259-R Pg. 311 

03-09-2010 Claysville Quarry SE 2009-71-M Pg. 321 

03-10-2010 Sec. Labor o/b/o Kevin Baird v. 

. PCS Phosphate Company, fuc. SE 2010-74-DM Pg. 325 

03-10-2010 Mach Mining, LLC. LAKE 2008-184 Pg.328 

03-23-2010 Amex Construction, fuc. WEST 2009-693-M Pg.347 

03-25-2010 Black Beauty Coal Company LAKE 2009-477 Pg.356 

04-01-2010 Orchard Coal Company, et al. PENN 2010-339-E Pg.371 

04-14-2010 Newmont USA Limited WEST 2007-743-RM Pg.391 

04-21-2010 Reading Anthracite .Company PENN 2007-171 Pg.399 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-10-2010 Abundance Coal, Inc. EAJ 2010-01 Pg. 415 

03-17-2010 Alex Energy, fuc. WEVA2007-742 Pg.419 

04-06-2010 Bill Simola emp. By United Taconite LLC. LAKE 2010-128-M Pg.421 

04-09-2010 Spartan Mining Company WEVA 2007-517-R Pg.425 

04-14-2010 Jim Walter Resources, Inc. SE 2008-124-R Pg.428 

04-15-2010 Orchard Coal Company, et al. PENN 2010-339-E Pg. 431 

i 

MARCH AND APRIL 2010 

Review was granted in the following cases during the months of March and April 2010: 

Mach Mining, LLC. v. Secretary of Labor, MSHA, Docket Nos. LAKE 2010-1-R and LAKE 

2010-2-R. (Judge Miller,. January 28, 2010) 

Oak Grove Resources, LLC. v. Secretary of Labor, MSHA, Docket No. SE 2010-350-R. (Judge 

Zielinski, February 12, 2010) 

Sec. Labor on behalf of Kevin Baird v. PCS Phosphate Company, Docket No. SE 2010-7 4-DM. 

(Judge Bulluck, February 2, 2010) 

No case was filed in which review was denied during the months of March and April 2010: 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAJ'!ETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

V. 

HIGHLAND MINING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

March 5, 2010 

Docket No. WEV A 2009-688 

A.C. No. 46-08693-164121 

Docket No. WEV A 2009-689 

A.C. No. 46-08693-167069 

Docket No. WEV A 2009-1037 

A.C. No. 46-06558-169988 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). During the course of over five months in 2008 and 2009, the 

Commission received from Highland Mining Company ("Highland") motions by counsel to 

reopen four penalty assessments that had each become a final order of the Commission pursuant 

to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1 In Highland Mining Co., 31 FMSHRC 

1313 (Nov. 2009), the Commission unanimously denied the first of the motions with prejudice, 

and a majority denied the remaining three motions without prejudice. That order stated that with 

respect to the three motions denied without prejudice: 

Should Highland renew its reopening requests, it must do so within 

30 days, and fully explain the circumstances in the three failures to 

timely contest the proposed assessments. It must also address what 

it has done to ensure that it does not misplace penalty assessments 

in the future and to ensure that it responds to them in a more timely 

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). 

32 FMSHRC Page 251 
Id. at 1316. 

manner, in order to avoid a repeat of the mistakes it outlined in its 

four motions. 

In a motion filed on February 3, 2010, counsel for Highland informed the Commission 

that he did not receive his service copy of the Commission's decision, and consequently did not 

learn of the decision until nearly two months later. Highland requests "a reasonable extension of 

time to consider and renew its reopening requests" in the three dockets in which the Commission 

indicated that it would entertain renewed requests to reopen. The Secretary of Labor has not filed 

a response to Highland's February 3 motion. 

·Having considered Highland's motion, we grant its request for an extension of time. It 

shall have 20 days from the date of this order in which to file renewed requests to reopen in the 

three dockets. 

ssioner 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 252 
Distribution: 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Max L. Corley, ill, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Deptartment Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 253 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TARMAC AMERICA, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April l, 2010 

Docket No. SE 2010-538-M 

A.C. No. 08-00051-195649 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 10, 2010, the Commission received from Tarmac 

America, LLC {"Tarmac America") a motion by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

On March 18, 2010, the Commission received a motion from Tarmac America's counsel 

stating that the operator has decided to pay the penalty assessment at issue in full and requesting 

that Tarmac America's pending request to reopen the assessment be withdrawn. 

32 FMSHRC Page 254 
Having reviewed Tarmac America's request and its motion to withdraw the request, we 

hereby grant Tarmac America's motion to withdraw its request to reopen. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 255 
Distribution 

William K. Doran, Esq. 

Denise E. Giraudo, Esq. 

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

2400 N Street, N.W., 5th Floor 

Washington, D.C. 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209~2296 

32 FMSHRC Page 256 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CEDAR CREEK COAL, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April26,2010 

Docket No. VA 2009-378 

AC. No. 44-07211-185244 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 30, 2009, the Commission received from Cedar 

Creek Coal, LLC ("Cedar Creek") a letter seeking to reopen a penalty assessment that may have 

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

§ 815(a). 

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

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

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

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

On May 12, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000185244 to Cedar Creek. The record 

indicates that Federal Express was unable to deliver the proposed penalty assessment. Although 

Federal Express indicates that the reason for non-delivery was an incorrect address, the operator 

claims that the assessment was addressed correctly. The Secretary states that she does not 

oppose the reopening of the proposed penalty assessment. She notes that the operator should 

ensure that its address of record is accurate for future penalty assessments. 

32 FMSHRC Page 257 
The record indicates that Cedar Creek never received notification of the proposed penalty 

assessment as required under Commission Procedural Rule 25. 1 Under the circumstances of this 

case, we conclude that Cedar Creek was not notified of the penalty assessment, within the 

meaning of the Commission's Procedural Rules, and the proposed penalty assessment has not 

become a final order of the Commission. We also conclude that Cedar Creek has received a copy 

of the proposed penalty assessment since it is attached to the request to reopen. 

1 Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall 

notify the operator or any other person against whom a penalty is proposed of the violation 

alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days 

to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C .F .R. 

§ 2700.25. 

32 FMSHRC Page 258 
Because the proposed penalty assessment did not become a final order of the 

Commission, we will treat the request to reopen as moot. We hereby remand this matter 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. If the operator has not already done so, it 

should submit the proposed assessment form to MSHA, within 30 days of the date of this order. 

See 29 C.F.R. § 2700.26, 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 259 
Distribution: 

Mr. Danny Justus 

Cedar Creek Coal, LLC 

37 Smith Rd. 

Phelps, KY 41553 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor . 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 260 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) 

V. 

A.I.M., LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 26, 2010 

Docket No. WEVA 2009-1892 

A.C. No. 46-01437-186238 Q180 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 31, 2009, the Commission received from A.l.M., 

LLC ("AIM") a letter seeking to reopen a penalty assessment that had become a final order of the 

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

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 261 
On May 28, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued the proposed assessment at issue. AIM claims that it received the assessment 

but that its clerk, who had serious health problems, failed to inform anyone that the proposed 

assessment had been delivered. The company director asserts that he did not learn of the 

proposed assessment until AIM received a delinquency notice dated August 26, 2009. The 

request to reopen was filed within one week of the receipt of the delinquency notice. 

The Secretary initially opposed the operator's request. On September 29, 2010, AIM 

filed a supplementary letter addressing the Secretary's concerns and more fully explaining the 

reasons for its failure to timely contest the proposed assessment. On October 1, 2010, the 

Secretary withdrew her earlier opposition to the request to reopen. 

·Having reviewed AIM's request 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. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 262 
Distribution: 

Hoya Clemons 

A.I. M.,LLC 

56000 Dilles Bottom, 

Shadyside, OH 43947 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 263 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CRAIG'S OPERATED 

EQUIPMENT 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 26, 2010 

Docket No. WEST 2009-1273-M 

A.C. No. 02-03045-183807 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 20, 2009, the Commission received from Craig's 

Operated Equipment ("Craig's Equipment") a letter seeking to reopen a penalty assessment 

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

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 264 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On April 29, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000183807 to Craig's Equipment for seven 

citations and orders MSHA had issued to the operator on March 17, 2009. MSHA asserts that 

the proposed assessment was delivered by Federal Express on May 5, 2009. On July 21, 2009, 

MSHA sent a delinquency notice to Craig's Equipment. On August 20, 2009, Craig's Equipment 

sent a request to the Commission seeking to dispute the penalties for six of the seven citations 

contained on the proposed assessment at issue. 

The Secretary opposes the request to reopen on the ground that the operator has failed to 

explain or provide any reason as to why it did not contest the proposed assessment within 30 

days after receiving it. 

32 FMSHRC Page 265 
Having reviewed Craig's Equipment's request to reopen and the Secretary's response, we: 

agree with the Secretary that Craig's Equipment has failed to provide an explanation for its 

failure to timely contest the proposed penalty assessment. Craig's Equipment has submitted no 

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

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

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

(July 2008); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008). The words "withou1 

prejudice" mean Craig's Equipment may submit another request to reopen the case so that it can 

contest the citation and penalty assessment. 1 Any amended or renewed request by Craig's 

Equipment to reopen Assessment No. 000183807 must be filed within 30 days of the date of this 

order. Any such request filed after that time will be denied with prejudice. 

Robert F. Cohen, Jr., Commissioner 

1 If Craig's Equipment submits another request to reopen the case, it must establish good 

cause for not contesting the citation and proposed assessment within 30 days from the date it 

received the proposed penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules 

of Civil Procedure, the existence of "good cause" may be shown by a number of different factors 

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

relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the 

adverse party. Craig's Equipment should include a full description of the facts supporting its 

claim of"good cause," including how the mistake or other problem prevented Craig's Equipment 

from responding within the time limits provided in the Mine Act, as part of its request to reopen 

the case. Craig's Equipment should also include copies of all documents supporting its request 

to reopen the case. 

32 FMSHRC Page 266 
Distribution: 

Craig Schitter 

Craig's Operated Equipment 

1603 Western Ave. 

Kingman, AZ 86401 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 267 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

COAL HAULERS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. WEV A 2009-1673 

A.C. No. 46-08684-180113 F354 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 13, 2009, the Commission received from Coal 

Haulers, Inc. ("Coal Haulers") a letter from its president seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 268 
On March 24, 2009, the Department of Labor's Min_e Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000180113 to Coal Haulers. Coal Haulers states 

that on April 10, 2009, it faxed a letter to MSHA requesting a conference and that it also mailed 

the proposed assessment form contesting the penalty and requesting a hearing. However, it 

further states that it received a letter from MSHA dated June 24, 2009, indicating that the penalty 

was delinquent. 

The Secretary does not oppose the operator's request to reopen. She notes that on the 

front of all proposed assessments, it states that an operator who wishes to contest the penalties 

and/or citations listed, should mark the form accordingly and mail it to the MSHA Civil Penalty 

Compliance Office in Arlington, Virginia. She urges the operator to take all steps necessary to 

ensure that future penalty assessments are contested in the required manner. 

Having reviewed Coal Haulers' request to reopen and the Secretary's response, we hereby 

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

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

Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 269 
Distribution: 

Lakewood J. Cox, President 

Coal Haulers, Inc. 

P.O. Box 116 

Falls Mills, VA 24613 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 270 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WENDLING QUARRIES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. CENT 2009-743-M 

AC. No. 13-02062-183095 K038 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 18, 2009, the Commission received from 

Wendling Quarries, Inc. ("Wendling") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 271 
On March 4, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Citation No. 6494021. Wendling filed a notice of contest challenging the 

citation on March 14, 2009 (Docket No. CENT 2009-338-RM). MSHA issued the proposed 

assessment covering that citation on Appl 22, 2009. Wendling claims that, because of its prior 

contest of the underlying citation, it was unaware that it needed to send in the penalty contest and 

it did not forward the proposed penalty assessment to its counsel. It further asserts that its 

accounting office mistakenly paid the penalty because the proposed assessment form included the 

penalty for another citation which had not been contested. Wendling asserts that it discovered 

that the penalty had been paid and not contested when it consulted its counsel about a related 

Mine Act proceeding on August 18, 2009. Counsel submitted the motion to reopen on that same 

day. 

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

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

manner. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 272 
Distribution: 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Jerry Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2znd Floor West 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 273 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WHITE COUNTY COAL, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. LAKE 2009-588 

A.C. No. 11-03058-181275 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 28, 2009, the Commission received from White 

County Coal, LLC ("White County") a motion by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 274 
On April 7, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 00018127 5 to White County, proposing civil 

penalties for several citations. White County maintains that it filled out the proposed assessment 

form indicating that it intended to challenge 14 of the citations and their associated penalties in 

the sum of$39,838, and sent the contest to MSHA's Civil Penalty Compliance Office. White 

County states that it sent its payment in the amount of $8,053 for the remaining citations to 

MSHA's Payment Processing Center in St. Louis, Missouri. The operator further states that on 

approximately July l, 2009, MSHA sent White County a notice stating that it was delinquent in 

paying $39,838 in penalties to MSHA. 

The Secretary does not oppose White County's request to reopen the proposed penalty 

assessment. She notes that a payment dated April 27, 2009, in the amount of$8,053 was timely 

received at MSHA's Payment Processing Center. However, the Secretary states that MSHA has 

no record of receiving the penalty contest form at its Civil Penalty Compliance Office in 

Arlington, Virginia. 

32 FMSHRC Page 275 
Having reviewed White County'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 Seeretary shall file a petition for assessment 

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

Mic 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 276 
Distribution: 

Gary D. McCollum, Esq. 

White County Coal, LLC 

771 Corporate Drive, Suite 1000 

Lexington, KY 40503 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J mnes, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 277 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. SE 2010-394-M 

A.C. No. 09-00075-196270 

MARTIN MARIETTA MATERIALS, INC. 

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

ORDER 

BY THE COMMISSION: 

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

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

Marietta Materials, Inc. ("Martin Marietta") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

On March 12, 2010, the Commission received a motion from Martin Marietta's counsel 

stating that the operator has decided to pay the penalty assessment at issue in full and requesting 

that Martin Marietta's pending request to reopen the assessment be withdrawn. 

32 FMSHRC Page 278 
Having reviewed Martin Marietta's request and its motion to withdraw the request, we 

hereby grant Martin Marietta's motion to withdraw its request to reopen. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 279 
Distribution: 

Karen L. Johnston, 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 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 280 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

THE OLEN CORPORATION 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. LAKE 2010-322-M 

A.C. No. 33-04147-198682 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 11, 2010, the Commission received from the 

Olen Corporation ("Olen") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 281 
The Department of Labor's Mine Safety and Health Administration ("MSHA,,) issued 

Proposed Assessment No. 000198682 to Olen on September 29, 2009, proposing penalties for 

six citations that had been issued to Olen in August 2009, including Citation Nos. 6403708, 

6403709, and 6403712. Olen states that it had requested a conference with the local MSHA 

office regarding Citation Nos. 6403709 and 6403712, and sent the proposed assessment form 

designating the two citations as contested along with payment for other citations to MSHA. Olen 

further states that MSHA' s Civil Penalty Compliance Office does not have a copy of its request, 

and that Olen received a notice from MSHA stating that it was delinquent in paying penalties 

associated with Citations Nos. 6403708 and 6403709. Olen clarifies that it did not want a 

conference on Citation No. 6403708. 

The Secretary of Labor does not oppose reopening but notes that the records ofMSHA's 

Civil Penalty Compliance Office do not indicate that it received a contest of Proposed 

Assessment No. 000198682. 

32 FMSHRC Page 282 
Having reviewed Olen'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 with respect to Citation Nos. 6403709 and 6403712 within 45 days of the 

date of this order.2 See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

1 Despite its outstanding conference request on the citations, Olen was obligated to file a 

formal contest of the associated penalties in the assessment within 30 days of receiving the 

assessment with MSHA's Arlington, Virginia, office and to pay any penalties to MSHA's St. 

Louis, Missouri, office. See 29 C.F.R. § 2700.26. Olen should take appropriate steps to ensure 

that it complies with these requirements in the future. 

2 MSHA should reapply Olen's payment to the penalty associated with Citation No. 

6403708 as appropriate. 

32 FMSHRC Page 283 
Distribution: 

Dave Kolarik 

The Olen Corp. 

4755 S. High Street 

Columbus OH, 43207 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 284 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

KWV OPERATIONS, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. WEVA2009-1038 

A.C. No. 46-08122-170790 

Docket No. WEVA 2009-1039 

A.C. No. 46-08904-170801 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 10, 2009, the Commission received from KWV 

Operations, LLC (''KWV") an amended motion by counsel to reopen two penalty assessments 

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

U.S.C. § 815(a). 

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

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

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

is deemed a fmal 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 becoine final Commission orders under section 105(a). 

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 285 
In its original motions, filed on March 25, 2009, KWV's vice president stated that he 

received the assessments and marked the citations that he intended to contest and then forwarded 

them to KWV's corporate office. KWV asserted that through "inadvertence or mistake" the 

assessments were not timely returned to MSHA. The Secretary did not oppose reopening the 

proposed penalty assessments. The Commission subsequently denied the requests to reopen 

without prejudice because ofKWV's failure to provide a sufficiently detailed explanation for its 

failure to file timely contests. KWV Operations, LLC, 31FMSHRC613, 615 (June 2009). 

The amended request to reopen from KWV includes a more detailed affidavit from the 

vice-president, who explains that he has further investigated the matter with KWV' s corporate 

office, and that the office may have mistakenly sent the notices of contest to the MSHA address 

for penalties payments. He further states that KWV has changed its handling procedures for 

penalty assessments in an attempt to avoid this occurring in the future. 

Having reviewed KWV's amended request and the Secretary's original response, in the 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 286 
Distribution: 

Billy R. Shelton, Esq. 

Jones, Walters, Turner & Shelton PLLC 

151 N. Eagle Creek Drive, Suite 310 

Lexington, KY 40509 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 287 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NEWTOWN ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. WEY A 2010-590 

A.C. No. 46-08759-199280 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 2, 2010, the Commission received from 

Newtown Energy, Inc. (''Newtown") a motion to reopen a penalty assessment that may have 

become a final order of the Commission pursuant to section 1 OS( a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

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

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

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

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

On October 2, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000199280 to Newtown, proposing a penalty for a 

citation that had been previously issued to the operator. According to both Newtown and the 

Secretary, the assessment was addressed to the correct location, but was returned undelivered to 

the Secretary, with no further explanation provided by Federal Express. Newtown states that it 

learned of the assessment when it checked the MSHA web site or around January 20, 2010, and 

that it never received a delinquency notice from MSHA. The Secretary does not oppose 

reopening, but notes that MSHA sent a delinquency notice to the address of record dated 

January 5, 2010. 

32 FMSHRC Page 287 
Having reviewed Newtown's request and the Secretary's response, we conclude that 

Assessment No. 000199280 has not become a final order of the Commission because it was 

never received by Newtown. Accordingly, we deny the request to reopen as moot and remand 

this matter 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. If the operator has not already 

done so, it should submit the proposed assessment form to MSHA within 30 days of the date of 

this order. See 29 C.F.R. § 2700.26. 1 

Micha 

Robert F. Cohen, Jr., Commissioner 

1 It appears that the operator is having difficulty receiving packages and correspondence 

from MSHA. It is incumbent upon the operator to work with MSHA to solve this problem. 

32 FMSHRC Page 288 
Distribution: 

Christopher D. Pence, Esq. 

Allen, 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 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 289 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH · 

ADMINISTRATION (MSHA) 

v. 

GLACIER STONE SUPPLY, LLC 

601 NEW JERSEY AVENUE, NW 

SUllE 9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. WEST 2010-630-M 

A.C. No. 24-02236-205673 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. {2006) {''Mine Act"). On February 1, 2010, the Commission received from Glacier 

Stone Supply, LLC {"Glacier") a request to reopen a penalty assessment that had become a fmal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRGPage 290 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000205673 to Glacier on December 10, 2009, proposing a penalty for 

a citation that had been issued to Glacier on October 21, 2009. Glacier states that it sent its 

notice of contest to the wrong MSHA office and that, while it wishes to pursue its contest, it has 

also paid the penalty. Glacier also requests a conference on the citation. The Secretary does not 

oppose reopening, but urges the operator to make certain in the future that it sends all notices of 

contest to the MSHA office specified on the contest form. 

Having reviewed Glacier'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 

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 291 
Distribution: 

Douglas Walker, Safety Mngr. 

Glacier Stone Supply, LLC 

955 Whitefish Stage Rd. 

Kalispell, MT 59901 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 292 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADM1NISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. YORK 2010-159-M 

A.C. No. 30-02268-196081 

BARTON MINES COMP ANY, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 3, 2010, the Commission received from Barton 

Mines Company, LLC ("Barton") a request to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 293 
Barton states that shortly after receiving eight citations in July 2009 from the Department 

of Labor's Mine Safety and Health Administration ("MSHA''), it sent a letter requesting a 

conference on the citations to the local MSHA office, as it had been instructed at the time it 

received the citations. Barton further explains that later that month, in connection with an 

MSHA inspection of a separate facility, it received different instructions regarding how to 

request a conference on the citations. On September 8, 2009, MSHA issued Proposed 

Assessment No. 000196081 to Barton regarding the original set of eight citations. On 

September 17, 2010, Barton submitted a letter expressly contesting all of the citations and 

penalties to the MSHA district office from which it had requested a conference, with the markedup assessment attached. Barton now acknowledges in its letter to the Commission that it sent the 

assessment form to the wrong address. It also asks that its previous request for a conference be 

reconsidered. 

The Secretary of Labor opposes reopening the assessment on the ground that the operator 

is not requesting reopening, but rather is seeking a conference on the citations, a matter over 

which the Commission does not have jurisdiction. 

32 FMSHRC Page 294 
Having reviewed Barton'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. We note that Barton did send a letter expressly contesting the proposed assessments 

to the local MSHA district office within the 30-day period for contests, and there is no indication 

that Barton has previously sent contests to the wrong address in circumstances such as these.1 

While the Commission cannot grant Barton's request fora conference, it can reopen the 

proceeding so that Barton is not foreclosed from contesting the citations and penalties, as it has 

indicated a number of times that it wished to do. Accordingly, consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

1 We caution Barton that it must send any future notices of contest regarding proposed 

penalties to the address for the Civil Penalty Compliance Office in Arlington, Virginia, specified 

on the proposed assessment form. 

32 FMSHRC Page 295 
Distribution: 

Michelle Scheid,, Safety Mngr. 

Barton Mines Co., LLC, 

13TM Lake Rd., 

North Creek, NY 12853 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

MyraJanies,Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 296 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TABLE ROCK ASPHALT 

CONSTRUCTION, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2010 

Docket No. CENT 2010-444-M 

A.C. No. 23-01892-196053 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 3, 2010, the Commission received from Table 

Rock Asphalt Construction, Inc. ("Table Rock") a request to reopen a penalty assessment that 

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

U.S.C. § 8l5(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 297 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On September 8, 2009, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000196053 to Table Rock,, 

proposing penalties for four citations that had been issued to the operator in July 2009. 

According to its request, Table Rock received the assessment, its representative marked the form 

to indicate that it-was contesting all the proposed penalties, and it mailed the notice of contest 

within the required 30 days. 

The Secretary states that MSHA has no record of receiving the notice of contest and that 

she does not oppose reopening. 

Having reviewed Table Rock's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 298 
Distribution: 

Joe Compton 

Table Rock Asphalt Construction, Inc. 

310 N. Commercial 

Branson, MO 65615 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 95.00 

Washington, D.C. 20001-2021 

32 FMSHRC Page 299 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

DIX RIVER STONE 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April27,2010 

Docket No. KENT 2009-1299-M 

A.C. No. 15-18389-132599 

Docket No. KENT 2009-1300-M 

A.C. No. 15-18389-166970 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Dix River Stone 

("DRS") a letter from its president that we construe as a request to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

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

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

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

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

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

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

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

consolidate docket numbers KENT 2009-1299-M and KENT 2009-1300-M, both captioned Dix 

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

32 FMSHRC Page 300 
29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by 

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

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

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

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

In his letter to the Commission, DRS' s president states that DRS learned by phone from 

"an attorney" that it was overdue on paying three citations issued by the Department of Labor's 

Mine Safety and Health Administration ("MSHA") in 2007 and 2008, and "[ u ]pon reviewing .our 

files, we found that we had resubmitted these citations as contested, yet received no response." 

DRS included with its request marked pages from two assessments that indicated that the 

penalties in connection with four citations were to be contested. 

The Secretary of Labor opposes DRS's request to reopen the two assessments. The record 

shows that the operator submitted the same statement to MSHA regarding having "resubmitted" 

the citations, and MSHA responded that it had no record of having ever received contests of the 

proposed penalties. 

A. Assessment No. 000132599 

The Secretary further states that because this assessment became a final Commission order 

on January 3, 2008, DRS 's submission of a request to reopen approximately 18 months later 

should be denied. Under Rule 60(b ), any motion for relief must be made within a reasonable 

time, and in the case of mistake, inadvertence, or excusable neglect, not more than one year after 

the order was entered. Fed. R. Civ. P. 60(b ). Because DRS' s request to reopen was filed over a 

year after the proposed assessment became a final order, its request as to this assessment is 

untimely. JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). Accordingly, DRS's 

request to reopen is denied as to this assessment. 

B. Assessment No. 000166970 

The Secretary offers evidence that this assessment was received by DRS and opposes 

reopening it on the ground that the operator offers no explanation for why it failed to contest the 

assessment in a timely manner. The Secretary also notes that the request to reopen was not filed 

until five months had passed after MSHA sent DRS a delinquency notice regarding the 

assessment, and may have been prompted by efforts by the U.S. Treasury Department to collect 

the outstanding penalties. 

Having reviewed DRS's request and the Secretary's response, we conclude that DRS has 

not provided a sufficiently detailed explanation for its failure to timely contest the proposed 

penalty assessments. The statements in DRS' request do not provide the Commission with an 

adequate basis to justify reopening. Accordingly, we deny the request for relief as to this 

32 FMSHRC Page 301 
assessment without prejudice.2 See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 

2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

2 The words ''without prejudice" mean that DRS may submit another request to reopen 

this assessment so that it can contest specific citations and penalty assessments. If DRS submits 

another request to reopen, it must establish good cause for not contesting the citations and 

proposed assessments within 30 days from the date it received the proposed penalty assessment 

from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of"good 

cause" may be shown by a number of different factors including mistake, inadvertence, surprise, 

or excusable fault on the part of the party seeking relief, or the discovery of new evidence, or 

fraud, misrepresentation, or other misconduct by the adverse party. DRS should include a full 

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

problem prevented !)RS from responding within the time limits provided in the Mine Act, as part 

of its request to reopen. DRS should also submit copies of supporting documents with its request 

to reopen. 

fu any such request DRS must also address why it did not file its request to reopen until 

months after the MSHA notice should have alerted it to its delinquency. fu the context of penalty 

assessments, in considering whether an operator has unreasonably delayed in filing a motion to 

reopen, we find relevant the amount of time that has passed between an operator's receipt of a 

delinquency notice or other notification from MSHA and the operator's filing of its motion to 

reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009). Since the time DRS 

filed its request, the Commission has held that any request to reopen filed more than 30 days after 

the receipt of such a notice is grounds for denial of that request. Highland Mining Co., 31 

FMSHRC 1313, 1316-17 (Nov. 2009). 

32 FMSHRC Page 302 
Any amended or renewed request by DRS to reopen Assessment No. 000166970 must be 

filed within 3 0 days of the date of this order. Any such request filed after that time will be deniec 

with prejudice. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 303 
Distribution: 

Tommy Owens, President 

Dix River Stone 

376 Somerset Street 

Stanford, KY 40484 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 304 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

LAKEVIEW ROCK PRODUCTS, INC., 

Respondent 

March 2, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-858-M 

A.C. No. 42-01975-143531 

Lakeview Rock Products 

DECISION 

Appearances: Hillary A. Smith, Conference & Litigation Representative, 

U.S. Department of Labor, MSHA, Denver, Colorado, 

for the Petitioner; 

Kevin R. Watkins, Esq., Lakeview Rock Products, Inc., 

North Salt Lake, Utah, for the Respondent. 

Before: Judge Feldman 

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty 

filed pursuant to section l lO{a) of the Federal Mine Safety and Health Act of 1977, as amended 

("Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor (''the Secretary") against the 

respondent, Lakeview Rock Products, Inc., ("Lakeview"). This matter was heard on 

November 17, 2009, in Salt Lake City, Utah. The parties' post-hearing briefs are of record. 

The Secretary seeks to impose a total civil penalty of$1,602.00 for two alleged 

violations of mandatory safety standards governing surface metal and nonmetal mines. 

Specifically, the Secretary proposes a civil penalty of$1,412.00 for Citation No. 6318475 that 

cites an alleged significant and substantial (S&S) violation1 of30 C.F.R. § 56.3131. This safety 

1 Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed 

to by the violation will result in an accident causing serious injury. Cement Division, National 

Gypsum, 3 FMSHRC 822, 825 (April 1981 ). 

32 FMSHRC Page 305 
standard requires mine operators to keep the area near the perimeter of the pit or quarry highwall 

free of conditions that create a fall-of-material hazard to persons working or traveling below.2 

The Secretary also sought to assess a civil penalty of$190.00 for Citation No. 6318476 that 

alleges a non-S&S violation of 30 C.F .R. § 56.6132(b) that requires nonmetal magazines to be 

grounded. At the trial, the parties agreed that Lakeview will pay a reduced civil penalty of 

$100.00 in satisfaction of Citation No. 6318476. (Tr. 123). Thus, the only remaining unresolved 

issue is the fact of occurrence of the alleged highwall violation in Citation No. 6318475. 

I. Findings of Fact 

Lakeview owns and operates a surface gravel pit located in North Salt Lake, Utah. 

The highwall at this surface mine is not vertical. Rather, the natural rock formation is 

recessed and slopes away from the point where the base of the highwall meets the quarry floor. 

(Gov. Ex. 1, pps. 2-4). The gravel material is loosened from the highwall by an explosive blast. 

The loosened material is pushed by a dozer from an upper bench to a feed deck below where a 

loader operator picks up the material at the pit floor and transports it directly to one of several 

screens and four stationary crushers. (Gov. Ex 1, p. 1). Alternatively, the extracted gravel 

material is loaded at the bottom of the feed deck by the loader operator and dumped into haul 

trucks for transport to the crushers. In either case, the route traveled by the loader to and from 

the feeder deck to the crushers or trucks is in a general direction that is away from the base of the 

highwall. Specifically, the distance between the loader and the base of the highwall during the 

course of travel by the loader to and from the crusher and trucks is at least 80 feet as depicted in 

the photographic evidence. (Gov. Ex. 1, pps. 2, 3; Tr. 110-112,119). At the crushers the material 

is crushed, sized and stockpiled for sale and use in construction projects. 

Mine Safety and Health Administration (MSHA) Inspector Curtis Pittman inspected the 

Lakeview Quarry on February 11, 2008. Pittman was accompanied by Greg Fowers, Lak:eview's 

plant manager. _Pittman initially observed the general condition of the roadways and highwall. 

Pittman observed the feed deck where a loader operator was removing material that had been 

extracted and pushed down by a dozer from the bench above. During his testimony, Pittman 

expressed concern that the angle of repose can be disturbed if the loader operator gets ahead of 

the dozer by removing unconsolidated material from the pit of the quarry floor in instances when 

the dozer has not pushed additional material from the bench above for several days. However, 

Pittman conceded that, at the time of his inspection, the loose unconsolidated material at the 

feeder deck was resting at an angle of repose and did not create a hazard to the loader operator. 

(Tr. 31, 49-52). 

2 Citation No. 6318475 initially cited a violation of the mandatory standard in 30 C.F.R. 

§ 56.3130. The Secretary's motion to amend the citation to reflect the cited standard as 

30 C.F.R. § 56.3131 was granted on the record. (Tr. 8-12). The' provisions of section 56.3131 

are repeated verbatim in Citation No. 6318475 thus negating any claim by Lakeview that it has 

been surprised or otherwise prejudiced by the Secretary's amendment. 

32 FMSHRC Page 306 
Rather, Pittman was concerned about "some very large rocks precariously perched kind of 

up on the side of the hill there, and the loader tracks, and where the loader was at, caused me to 

be concerned that he was close to that area." {Tr. 31-32). The very large rocks observed by 

Pittman were located on a ledge to the right of the feeder deck area. The ledge where these rocks 

were located was recessed back approximately 100 feet from the base of the unconsolidated 

dolomite stockpile and the pit floor. {Tr. 115). The subject rocks that concerned Pittman were 

recessed on the highwall :ln an area where large rock boulders were located at the base of the 

highwall. (Gov. Ex 1, p. 3). Pittman opined that these large boulders situated at the base of the 

highwall had fallen from the rock formation. {Tr. 90-91 ). Lakeview contends that they were 

intentionally placed there for safety to prevent the loader from traveling near the highwall. 

In any event, these boulders served as a barrier that prevents the loader from traveling in close 

proximity to the base of the highwall. 

Scott Glen Hughes, Vice-President of Lakeview Rock Products, testified that the subject 

large recessed rocks that concerned Pittman were placed on the ledge over five years ago as a 

protective berm for the dozer operating on the upper bench. Although Pittman testified that 

the rocks were in a "precarious" location, Hughes credibly testified that the rocks were located 

approximately 30 feet from the edge of the bench or ledge. {Tr. 107; see Gov. Ex. 1, 

pps. 2, 3). Hughes was familiar with the location of the rocks because of their placement as 

a berm, and because he was responsible for removing the rocks to abate the subject citation. 

The discrepancy between Pittman's "precarious" characterization, and Hughes' testimony that 

the rocks were 30 feet from the highwall edge, can be attributable to Pittman's poor vantage 

point on the pit floor. {Tr. 108). In this regard, Pittman was observing rocks located on a 

highwall that was approximately 100 feet high, at a location that was recessed approximately 

100 feet from the base of the highwall. In addition, Hughes testified that the rocks were 

stationary and unlikely to move because they required a 150,000 pound D-11 dozer with 

1,000,000 pounds of drawbar force to push them off the highwall. (Tr. 109-10). 

As a result of his observations, Pittman issued Citation No. 63184 7 5. The second 

paragraph of the citation contains verbatim the entire provisions of section 56.3131. 

The citation states: 

The loader operators on the feed deck of the upper pit are exposed to loose 

unconsolidated rocks (some as large as 5 ft. in diameter) from the highwall above. 

In places where persons work or travel in performing their assigned tasks, 

loose or unconsolidated material shall be sloped to the angle of repose or stripped 

back for at least 10 feet from the top of the pit or quarry wall. Other conditions at 

or near the perimeter of the pit or quarry wall which create a fall-of-material 

hazard to persons shall be corrected. 

(Gov. Ex. 2, p. 1). 

32 FMSHRC Page 307 
The alleged violation was designated as significant and substantial based on Pittman's 

belief that the recessed rocks would fall down, either on or in very close proximity to the 

loader. (Tr. 53). Pittman conceded that the loader could not be directly exposed at the toe of the 

highwall in the event the subject recessed rocks fell because of the barrier created by the boulders 

that were located at the highwall base. Moreover, Pittman admitted that it was unlikely that the 

subject very heavy rocks could defy gravity and pose a hazard to the loader operator situated in 

the operator's compartment approximately 10 feet above the ground in a loader traveling at least 

80 feet from the base of the highwall. (Tr. 65). Undeterred, Pittman concluded that it was 

possible that the loader operator could be exposed to falling rock as far as 80 feet from 

the base of the highwall, where the loader tracks are depicted in Gov. Ex. l, p. 2, 

because "rocks can bounce." (Tr. 63- 64). 

II. Further Findings and Conclusions 

Section 56.3131, the subject mandatory standard, concerns two separate and discrete 

hazards. The first hazard, not relevant here, is caused by loose unconsolidated material. 

When loose or unconsolidated material is located near the perimeter of a vertical highwall, 

section 56.3131 requires that such material must be stripped back a distance of at least ten feet 

from the edge of the quarry highwall. When the loose unconsolidated material is in a stockpile, 

such as the loading deck in this case, section 56.3131 requires that such stockpiles must be 

trimmed or sloped back to maintain the angle of repose. Although Inspector Pittman was 

concerned that blasted material can be removed from the bottom of the stockpile before 

additional material is pushed by the dozer onto the stockpile from the bench above, 

thus disturbing the angle of repose, Pittman conceded that the angle of repose was maintained at 

the time of his inspection. Thus, the Secretary does not contend that the loose unconsolidated 

blasted material posed a hazard to the loader operator, or otherwise violated the provisions in 

section 56.3131. 

The second hazard in section 56.3131, that is in contention in this matter, is a generic 

fall-of-material hazard. Specifically, section 56.3131 requires the removal of"[o]ther conditions 

[not associated with unconsolidated materials in stockpiles] at or near the perimeter of the pit 

or quarrywa/l which create a fall-of-material hazard to persons .... " (Emphasis added). 

This potential hazard consists 9f two elements. The first element is whether the subject rocks or 

other materials pose a fall-of-material hazard. In other words, the issue is whether the subject 

material is essentially stable, or, in danger of falling. It is significant that the cited rocks are 

recessed rather than situated at the perimeter of the highwall. The second element concerns 

whether there is a risk that persons will be exposed to the falling material because there is a 

reasonable possibility that the material will fall where persons work or travel. 

32 FMSHRC Page 308 
As a threshold matter, it is worth noting that the circumstances in this case do not present 

a typical risk of exposure to quarry personnel who are working on the pit floor below loose rock 

or unconsolidated material located at the edge of a vertical highwall. Rather, the instant case 

concerns boulders, as large as five feet or more in diameter, that are on a bench that is set back 

approximately 100 feet from the toe of the highwall. Hughes, Lakeview's Vice-President, 

credibly testified that these boulders were placed on the bench approximately five years ago as a 

protective berm for the dozer operator. These recessed boulders are located in an area where 

large boulders are stacked at the base of the highwall as a barrier to prevent persons from 

working or traveling in the area directly adjacent to the highwall. In fact, Pittman believed 

construction of a barrier, that would achieve the same purpose as the existing boulders located 

at the base of the highwall, was an acceptable alternative method of achieving abatement 

if Lakeview elected not to remove the subject boulders from the bench. (Tr. 45-47). 

The uncontradicted evidence reflects that, during the route taken by the loader to off-load the 

blasted material, the loader maintains a distance of at least 80 feet from the highwall base. 

The Secretary bears the burden of proving by the preponderance of the evidence, 

that the conditions cited support the fact of a violation of the mandatory safety standard in issue. 

The Commission has noted that the preponderance of the evidence standard requires the 

trier of fact believe that "the existence of a fact is more probable than its nonexistence." 

RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). 

To satisfy her burden of demonstrating that the subject rocks pose "a fall-of-material 

hazard to persons," the Secretary argues" ... that if several ton[s] of rock fell and landed in the 

wrong place ... we could have tragic consequences, serious injury and potentially death." 

(Sec'y Br. at p. 2). Indeed. However, the Secretary's "anything can happen theory" falls far 

short of satisfying her burden of proof by a preponderance of the evidence. Rather, the evidence 

reflects that these very large rocks were essentially stationary and extremely unlikely to move. 

In this regard, they had remained in place for several years and they could only be moved by a 

very large D-11 dozer. 

Assuming, for the sake of argument, that the subject rocks did roll from their recessed 

location to the edge of the highwall, the Secretary's speculation that they could hit the ground 

and bounce for a distance of more .than 80 feet, or, be propelled from the edge of the highwall, 

and strike the side or top of the loader operator's compartment is unavailing because it is contrary 

to the law of gravity. Rather these rocks would fall at the base of the highwall on the boulders 

that currently serve as a barrier preventing the loader from operating in proximity to the toe of the 

highwall. 

Thus, in the final analysis, the Secretary has failed to demonstrate by a preponderance of 

the evidence that the cited rocks "create a fall-of-material hazard to persons" as contemplated by 

section 56.3131. Accordingly, Citation No. 6318475 shall be vacated. 

32 FMSHRC Page 309 
ORDER 

In view of the above, IT IS ORDERED that Citation No. 6318475 IS VACATED. 

IT IS FURTHER ORDERED, consistent with the parties' settlement terms, that 

Lakeview Rock Products, Inc., SHALL PAY, within 45 days of the date of this Decision, 

a civil penalty of$100.00 in satisfaction of Citation No. 6318476. 

IT IS FURTHER ORDERED that, upon timely payment of the $100.00 civil penalty, 

this proceeding docketed as WEST 2008-858-M IS DISMISSED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Hillary A. Smith, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, P.O. Box 25367, Denver, CO 80225 

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 

Kevin R Watkins, Esq., Lakeview Rock Products, Inc., 900 North Redwood Rd., 

North Salt Lake, UT 84054-0700 

/rps 

32 FMSHRC Page 310 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001 

March 5, 2010 

RS & W COAL COMP ANY, INC., 

Contestant 

CONTEST PROCEEDINGS 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. PENN 2010-259-R 

Citation No. 7000438; 01/19/2010 

Docket No. PENN 2010-260-R 

Order No. 7000439; 01/19/2010 

Mine ID 36-01818 

RS & WDrift 

DECISION 

Appearances: John Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, on behalf of the Secretary of Labor; 

Randy Rothermel Sr., President, RS&W Coal Company, Inc., 

Klingerstown, Pennsylvania, pro se, on behalf of the Contestant. 

Before: Judge Paez 

These cases are before me on a request for expedited hearing by RS& W Coal Company, 

Inc. ("RS&W"), to contest Citation No. 7000438 and Withdrawal Order No. 7000439, both 

issued on January 19, 2010, pursuant to sections 104(a) and 104(b), respectively, of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").1 The general issues 

before me are whether RS&W violated 30 C.F.R. § 75.370(a)(l) for operating a mine without an 

approved ventilation plan, as alleged by the Secretary; and whether the Secretary properly issued 

a withdrawal order under section 104(b) of the Act for RS&W's alleged failure to abate the 

citation. 

A hearing was held on February 18, 2010 in Harrisburg, Pennsylvania, pursuant to section 

105 of the Act, 30 U.S.C. § 815. At the hearing, the parties stipulated that RS&W is subject to 

the jurisdiction of the Act, the RS& W Drift mine is owned and operated by RS& W, and the 

Commission judge has jurisdiction pursuant to section 105 of the Act, and further stipulated to 

the authenticity of their exhibits but not to the relevance or truth of the matters asserted therein. 

1 By order dated February 2, 2010, I granted the request for an expedited hearing under 

Commission Rule 52, 29 C.F.R. § 2700.52, and a hearing was set for February 10, 2010 in 

Pottsville, PA. Due to two unprecedented snowstorms that closed federal government offices in 

Washington, D.C., from February 5 through February 12, the hearing was postponed. 

32 FMSHRC Page 311 
(Joint Ex. 1.) At the conclusion of the hearing, the parties were permitted to submit written 

closing arguments and additional documentation. 2 

For the reasons stated below, Citation No. 7000438 is affirmed, except that the operator's 

negligence is reduced to "low", and Withdrawal Order No. 7000439 is accordingly affirmed. 

Findinis of Fact 

RS& W operates the RS& W Drift anthracite mine located near Klingerstown, 

Pennsylvania. The mine is not mechanized. {Tr. 21-22.) The operator engages in conventional 

mining where coal is loaded by hand and gravity loaded, and explosives are used to blast the rock 

to reach the coal. (Tr. 142, 170.) 

Citation No. 7000438 alleges a violation of30 C.F.R. § 75.370{a)(l), which requires that 

operators develop and follow a ventilation plan approved by the MSHA district manager, which 

consists of a written document and a mine map. (Ex. G-11.) RS& W's written plan generally 

remains the same, but an accompanying map - reflecting changes in the working areas and mined 

out areas - is resubmitted every year on the plan anniversary date, which for RS& W happens to 

be in November, and the map becomes part of the ventilation plan if approved by the district 

manager. (Exs. G-4, G-5, C-1; Tr. 24-25.) 

Citation No. 7000438, issued on January 19, 2010 by Gregory Mehalchick, an authorized 

representative of the Secretary {Tr. 18), alleges a non-"significant and substantial" violation of 

the standard at 30 C.F.R. § 75.370(a){l), and charges as follows: 

The operator is working without a ventilation plan approved by the district 

manager. The ventilation plan shall consist of two parts, one part being the 

ventilation map with information prescribed in Sec. 75.372. The operator 

submitted a mine ventilation map to the District Office on November 16, 2009. 

Upon review by the district, deficiencies were found on the map and the map was 

returned to the operator with a letter of non-approval, listing the deficiencies that 

had to be corrected. The operator, Randy Rothermel, met with this inspector in 

the District's Pottsville_ Field Office on December 29, 2009 to address all 

deficiencies. During this meeting, the operator insisted that a permanent 

ventilation control, that being an evaluation point (EP), was going to be removed 

from the map and that one deficiency, that being the airflow direction in an area of 

the mine, was not going to be added to the map. The operator was informed at 

2 After the hearing, RS& W submitted a copy of a letter dated December 17, 2009, from 

Randy Rothermel, President, RS& W Coal Co., Inc., to MSHA District Manager John A. Kuzar 

requesting a meeting on the ventilation map, which is hereby marked as Exhibit C-3. Counsel 

for the Secretary commented on this submission by letter dated March 3, 2010, noting that 

MSHA checked its files and could not locate that document. Exhibit C-3, as well as Exhibits Cl and C-2 which were marked but not admitted at the hearing, are hereby received into evidence. 

32 FMSHRC Page 312 
this meeting that the mine ventilation map would not be approved by the district if 

these two edits were made. However, the operator removed the EP and did not 

add the airflow directions. The operator was called twice since this December 

meeting, January 4, 2010 and January 6, 2010 and was left messages regarding the 

necessity to meet again and resolve the two items. A return call was not received. 

(Ex. G-11.) Mehalchick determined the operator's negligence to be high. Section 75.370(a)(l) 

provides in relevant part: 

The operator shall develop and follow a ventilation plan approved by the district 

manager. The plan shall be designed to control methane and respirable dust and 

shall be suitable to the conditions and mining system at the mine. The ventilation 

plan shall consist of two parts, the plan content as prescribed in§ 75.371 and the 

ventilation map with information as prescribed in§ 75.372. Only that portion of 

the map which contains information required under§ 75.371 will be subject to 

approval by the district manager. 

30 C.F.R. § 75.370{a)(l). 

The parties agree, and the evidence introduced at hearing establishes, that the May 13, 

2009 prior-approved ventilation map - which is part of the overall ventilation plan in conjunction 

with the written plan (Ex. G-5) - contained an evaluation point ("EP") near the Skidmore section 

of the mine ("Skidmore EP"), as well as directional arrows indicating airflow in an inby direction 

along the Skidmore section. (Ex. C-1.) As part of the process, RS& W submitted its ventilation 

map for annual review on November 11, 2009, which was received by MSHA on November 16, 

2009. (Exs. G-3, G-4.) This submission included the Skidmore EP but did not include arrows 

indicating airflow along the Skidmore section. (Ex. G-4.) MSHA issued a deficiency letter on 

December 9, 2<109, which included, among other things, approval of the Skidmore EP and 

MSHA's request to agd directional airflow arrows on the mine map along the Skidmore section. 

(Ex. G-6.) Randy Rothermel Sr. testified that he wrote to MSHA District Manager John Kuzar 

on December 17, 2009 requesting a meeting on the ventilation plan. {Tr. 181; Ex. C-3.) Randy 

Rothermel Sr. and MSHA District Mining Engineer Greg Mehalchick, who was Acting 

Supervisory Specialist at that time, met at the MSHA Pottsville field office on December 29, 

2009 to resolve the outstanding issues on the proposed ventilation map. {Tr. 15-16, 33.) 

At the December 29, 2009 meeting, Rothermel Sr. deleted the Skidmore EP from the map 

and would not add the airflow directional arrows along the Skidmore section of the mine, which 

had been identified as a deficiency. (Exs. G-6, G-8.) During the meeting, Mehalchick told 

Rothermel Sr. that the ventilation plan would in all probability not be approved by the district 

manager with those two items missing, thus compelling Mehalchick to return over these same 

issues. (Tr. 85-86, 222-23.) Thereafter, in early January, Mehalchick left a voice mail message 

for Rothermel Sr. informing him that the ventilation plan would not be approved without those 

two changes. {Tr. 86.) Rothermel Sr. called back Mehalchick the next day and left a message 

asking to have a meeting with the district manager. (Tr. 86-87, 194-96.) Mehalchick testified at 

32 FMSHRC Page 313 
the hearing that he returned that call, though he could not state when, and left another voice mail 

message indicating that Rothermel Sr. would have to arrange a meeting in the MSHA Wilk:esBarre district office ifhe wanted to meet about resolving the ventilation plan. (Tr. 87.) The 

parties exchanged no further communications until January 19, 2010. 

On January 19, 2010, Mehalchick went to the RS&W Drift mine specifically to determine 

if the ventilation plan was in compliance. He met with Foreman Steve Rothermel to notify him 

that the two missing items - the Skidmore EP and the directional airflow arrows along the 

Skidmore section - on the ventilation map were grounds for a citation. Steve Rothermel 

contacted Randy Rothermel Sr. who told Mehalchick by telephone that RS& W would not add 

those two items to the ventilation map, even when warned the mine would be subject to a section 

104(b) withdrawal order. Mehalchick then issued Citation No. 7000438 and Withdrawal Order 

No. 7000439. 

General Leeal Principles - Standard of Review 

The law applicable to plan disputes was recently explained by the Commission in 

Twentymile Coal Company, where the Commission stated as follows: 

One of the cornerstone principles with regard to plan formulation under 

the Mine Act is that MSHA and the affected operator must negotiate in good faith 

for a reasonable period concerning a disputed plan provision. Carbon County 

Coal Co., 7 FMSHRC 1367, 1371(Sept.1985). The Commission has noted, 

"Two key elements of good faith consultation are giving notice of a party's 

position and adequate discussion of disputed provisions." C. W. Mining Co., 18 

FMSHRC 1740, 1747 (Oct. 1996) .... 

While the contents of a plan are based on consultations between the 

Secretary ~d the operators, the Commission has recognized that "the Secretary is 

[not] in the same position as a private party conducting arm's length negotiations 

in a free market." Id. at 1746. As one court has noted, ''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). Ultimately, the plan approval process involves an element of judgment on 

the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692(May1996) 

("Peabody If'). "[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." 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 

32 FMSHRC Page 314 
throughout the process was reasonable). Emerald Coal [Res., LP], 29 FMSHRC 

[956,] 965 [(Dec. 2007)]. 

Twentymile Coal Company, 30 FMSHRC 736, 747-48 (Aug. 2008). The standard involves a 

review of the record to determine whether the Secretary properly exercised her discretion and 

judgment in the plan approval process. In the event a plan provision is challenged by an 

operator, the Commission has held that the Secretary carries the burden of proving the disputed 

provision is "suitable" to the particuiar mine in question. Peabody II, 18 FMSHRC at 690 

(applying the ordinary meaning of the word "suitable"). 

Further Factual Fin dines and Conclusions of Law 

This case involves the removal of the very same evaluation point for the Skidmore area of 

the mine that RS& W itself included in its November 11, 2009 ventilation map and had submitted 

to MSHA for approval. However, over a month later at the December 29, 2009 meeting between 

Randy Rothermel Sr. and Mehalchick, RS&W proposed eliminating this EP for the Skidmore 

area of the mine, an area that had been worked out and which was some 2400 feet from the 

current working face. (Ex. G-4; Tr. 56, 78, 145.) In addition, RS&W would not indicate with 

arrows the airflow direction on the Skidmore section of the map. These two issues are what led 

to the dispute over approval of the ventilation plan resulting in MSHA's issuance of the citation 

and withdrawal order. 

1. Good Faith Negotiations 

Denying an operator's proposed ventilation plan must be done in writing from the district 

manager with an opportunity for the operator to discuss the denial, as noted in 30 C.F.R 

75.370(c).3 Technically, MSHA did provide the written denial of the operator's November 11 

submission in its December 9, 2009 letter, along with an opportunity to discuss those deficiencies 

on December 29, 2009. I do not find RS&W's suggested change to eliminate the Skidmore EP 

or its continued refusal to place airflow arrows bad faith negotiating. The testimony by RS& W's 

witnesses provided a rationale for the positions the operator took on these two issues, and 

testimony from Rothermel Sr. and Mehalchick himself indicates that Rothermel Sr. did 

communicate his rationale to Mehalchick at that time. (Tr. 38-39, 50, 183-85, 190, 193.) 

3 Section 75.370(c) provides as follows: 

( c )(1) The district manager will notify the operator in writing of the approval or 

denial of approval of a proposed ventilation plan or proposed revision. A copy of 

this notification will be sent to the representative of miners by the district 

manager. 

(2) If the district manager denies approval of a proposed plan or revision, the 

deficiencies of the plan or revision shall be specified in writing and the operator 

will be provided an opportunity to discuss the deficiencies with the district 

manager. 

32 FMSHRC Page 315 
Nevertheless, Mehalchick informed Rothermel Sr. at the December 29 meeting of the 

unlikelihood that this change would be accepted, as the December 9 deficiency letter had 

required the Skidmore EP to be in the plan and stated the plan would not be approved with the 

absence of the airflow arrows. {Tr. 85-86.) At this point, disapproval by the MSHA district 

manager ofRS&W's ventilation plan was inevitable, and for all intents and purposes the parties 

were at an impasse. I find that both sides had given notice of their positions and had adequate 

negotiations. Thus, I conclude that the parties had met their duty to negotiate in good faith and 

had done so over a reasonable period of time. 

2. Arbitrary and Capricious Analysis 

Absent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the 

inclusion of specific provisions as a condition for approval of RS& W's ventilation plan. Thus, 

the Secretary must establish a rational basis for her inclusion of the Skidmore EP and the airflow 

directional arrows along the Skidmore section. 

RS&W's Arguments 

At the hearing, RS& W gave several reasons for wanting to remove the Skidmore EP, 

including the difficulty of traversing that area, especially walking hazards for an examiner going 

to the Skidmore EP. These walking hazards involved various pitted areas some six inches wide 

and deep in the mine floor created when RS& W tore out the rail lines that existed on the way to 

the Skidmore EP. {Tr. 146.) RS&W had begun tearing up the rail lines for reuse in other parts. 

of the mine after May 2009, or approximately six months before the hearing. {Tr. 146, 215-16.) 

The removal of the rails from the area of the Skidmore EP could cause some tripping hazards. 

Testimony from Foreman Steve Rothermel, the miner who actually conducted the weekly 

examinations of the Skidmore EP, indicated it was not a regularly maintained part of the mine 

and that the· "conditions aren't nice to travel back there," though he never stated he was unable to 

conduct the Skidmore EP examinations due to these conditions. {Tr. 146.) Indeed, RS& W still 

continued to conduct the weekly examinations of the Skidmore EP, a requirement under the old 

ventilation plan, up until the time the mine became subject to a withdrawal order on January 19, 

2010. {Tr. 197-199.) 

Rothermel Sr. also testified at the hearing that he understood if he put arrows on the map 

indicating the airflow for a particular part of the mine, then RS&W would be required to have an 

examiner walk that whole area of the mine to check the airflow. If that were true, the weekly 

examiner would need to walk down the length of the Skidmore section, which both Mehalchick 

and Rothermel Sr. agree is towards a worked out and hazardous area of the mine. {Tr. 112,179.) 

RS& W also presented testimony from Rothermel Sr. that as long as air was flowing and 

ventilating the Skidmore section, it was immaterial which direction the air flowed. (Tr. 210-14.) 

I find these last two arguments disingenuous given the testimony of the MSHA witnesses. 

Mehalchick, who was Acting Specialist Supervisor at the time and is the District Mining 

Engineer tasked with reviewing ventilation plans for the district manager, stated there is no 

requirement that placing airflow arrows on the ventilation map requires RS&W to have an 

32 FMSHRC Page 316 
examiner walk the area to inspect it. Moreover, Mehalchick and MSHA Supervisor Specialist 

Thomas Garcia both testified that having air flowing constantly and in one direction through 

various sections of the mine is the proper way to ventilate the mine and prevent the build up of 

gases and dust. (Tr. 38-39, 45-48, 55-56, 62-63, 233-35.) They unequivocally stated that 

vacillating airflow is to be avoided. I credit their testimony over that of Randy Rothermel Sr. on 

these points. 

Analysis of Secretary's Evidence 

The Secretary has established through the testimony of Mehalchick and Garcia, that 

weekly monitoring at the Skidmore EP for sustained and non-variable airflow to the Skidmore 

section of the mine is needed to ensure proper ventilation to prevent the build up of methane, 

dust, and low oxygen levels. Steve Rothermel, who conducts the examination of the Skidmore 

EP, and Rothermel Sr. admitted in testimony that the airflow in the Skidmore section of the mine 

varied and that, depending on barometric conditions and outside temperatures, the directional 

flow of air could fluctuate in that part of the mine. (Tr. 157-60, 186-89.) Rothermel Sr. 

indicated that as long as air was flowing in that part of the mine - regardless of direction - there 

was no hazard to the working sections, which were some 2400 feet outby the Skidmore EP. 

Nevertheless, this ignores that inby areas adjacent to and east of the Skidmore section, some 

several hundred feet east of the Skidmore EP, had collapsed after being worked out and were 

sealed because they were difficult to reach, not maintained, and dangerous. (Tr. 111-12, 163-64, 

183-84, 233.) Nothing indicates that over time similar problems could not occur in the Skidmore 

section, which had been worked out and was not an active area of the mine (Tr. 179), making it 

imperative that proper airflow be monitored at the Skidmore EP. 

Moreover, Mehalchick testified that this mine does not use push ventilation, which entails 

placing a large blower fan at the entrance to the mine that pushes air into the mine. Rather, an 

exhaust fan sucks air out of the mine and it is that sucking function that creates a vacuum pulling 

air from other parts of the mine, like the mine entrance, to ventilate the various worked out 

portions as well as the active workings of the mine. 

Witnesses for both MSHA and RS& W observed breaches that ran from the mine ceiling 

up to the surface in areas extending several hundred feet to the east and west of the exhaust fan. 

(Gov't Ex. 8; Tr. 116-19.) These breaches indicate that some of the air exiting through the 

exhaust fan could be pulled down from the surface through these breaches and then back up and 

out through the exhaust fan, thereby short-circuiting the mine's ventilation. Crediting Rothermel 

Sr.' s testimony and Mehalchick' s rebuttal testimony that these breaches did not extend down as 

far as the length of the Skidmore section, it is clear that the breaches reduce the vacuum that 

would otherwise be created ifthere were no such breaches. (Tr. 116-19.) It stands to reason that, 

with the potential for inaccurate readings due to breaches, removal of the Skidmore EP reduces 

the ability of the operator to determine the amount and direction of airflow along the length of 

the Skidmore section. 

32 FMSHRC Page 317 
Consequently, I find that the Secretary has established that placement of the Skidmore EP 

and the directional arrows on the mine map were suitable for the conditions at this mine. Having 

determined the suitability of these provisions, I must determine whether the Secretary acted in a 

manner that was arbitrary or capricious or whether she abused her discretion in requiring these 

items for approval of the ventilation plan. Based on my review of the record, I conclude the 

Secretary did not. Therefore, Citation No. 7000438 for a violation of30 C.F.R. § 75.370(a)(l) is 

sustained. 

3. Negligence 

It is undisputed that at the time Citation No. 7000438 was issued, RS& W did not have an 

approved ventilation plan, as the EP and airflow direction for the Skidmore section were not 

placed on the mine map, which is part of the ventilation plan. Consequently, the operator was 

technically in violation of the regulatory provision. An examination of the circumstances 

surrounding the period of time leading up to the issuance of the citation, however, leads me to 

conclude there is no basis for the Secretary's allegation that RS& W's violation was highly 

negligent. The communication, or lack thereof, between RS& W and MSHA personnel, coupled 

with the fact that no direct communication took place between the parties as to the next steps in 

resolving the two remaining issues on the mine map until Mehalchick appeared at the mine, may 

not technically be bad faith negotiation, but it begins to approach a line that governmental 

agencies such as MSHA should not cross. 

While the parties were technically at an impasse at the conclusion of the December 29 

meeting, MSHA left the door open for the possibility of further negotiation. Yet MSHA believed 

it sufficient to simply leave a voice-mail message reconfirming the plan's denial. 

Argu,ably, Randy Rothermel Sr. 's change to the ventilation map on December 29 without 

a corresponding written rationale for the change created a problem. However, MSHA 

compounded that-problem by not issuing a reply in writing. RS&W then responded in kind by 

leaving a message asking to meet with the district manager. The testimony from Mehalchick is 

unclear as to when he left a message for Rothermel Sr. to come to the Wilkes-Barre MSHA 

office if he wanted another meeting on the ventilation plan. Nevertheless, the lack of a paper 

trail before the inspector visited the mine on January 19 and issued the citation and withdrawal 

order is troublesome. Moreover, it appears to be a departure from nine years of past practice. 

This, coupled with the fact that under the old plan (still in effect at the time the withdrawal order 

was issued) the Skidmore EP airflow measurements were still being taken throughout the plan 

approval process, indicates that RS&W's negligence was "low" given the overall context of the 

negotiations. Indeed, the Commission decisions that explain the process by which MSHA and 

operators negotiate invariably find that both parties had sufficient time to explain their positions 

and consider the alternatives. RS& W was given an opportunity to explain its position, which it 

did on December 29, 2009. Although RS& W was told its position would likely be rejected, the 

operator was still under the impression that MSHA might reconsider after another meeting -

right up until the time Mehalchick was at the mine and provided the operator 15 minutes during a 

telephone conversation to consider whether to capitulate to MSHA's demands. 

32 FMSHRC Page 318 
While it is clear that Rothermel Sr. chose not to acquiesce to Mehachick' s request to 

place the EP and directional airflow arrows on the ventilation map on January 19, 2010, the 

designation of the violation as involving "high" negligence is not supported by the evidence of 

record. In the Secretary's closing brief, she states that "Mehalchick testified that RS& W's 

negligence was high because Mr. Rothermel was aware that MSHA had not approved the 

ventilation map but continued to operate." (Sec'y Post-hearing Br. at 4.) That statement is also 

true as of December 29, 2009, but both Rothermel Sr. and Mehalchick testified that at their 

meeting on that date, the two remaining provisions in the plan, removal of the Skidmore EP and 

the directional arrows, were going to be reconsidered by MSHA. (Tr. 131, 194.) 

Much like the fact that the operator cannot prove MSHA received Rothermel Sr. 's 

December 17, 2009 letter requesting a meeting with the district manager, the Secretary is 

likewise at a loss to prove Rothermel Sr. received Mehalchick's voice message that Rothermel 

Sr. could meet about the ventilation plan at the Wilkes-Barre office. Based on my evaluation of 

the demeanor of the witnesses, I believe each side genuinely could not understand the other 

side's reaction- Rothermel Sr. could not understand why he was being cited when he had an 

outstanding request to meet with the district manager, and Mehalchick was equally perplexed as 

to why the operator would be recalcitrant to place two simple marks on the ventilation plan mine 

map that, if not done, would shut down his mine operation. This does not amount to bad faith as 

the Commission has defined that term. What occurred, instead, was a miscommunication. This 

miscommunication could have been avoided had both sides stated their positions in writing, as 

Rothermel Sr. 's unrebutted testimony revealed to be the practice between the two sides for the 

past nine years - or at least spoke to one another directly. Accordingly, I find that the operator's 

negligence should be reduced to "low". This is especially true considering airflow measurements 

at the Skidmore EP were being taken up until the issuance of the withdrawal order. 

4. Withdrawal Order 

Withdrawal Order No. 7000439 was issued under section 104(b) of the Act4 because 

Citation No. 7000438 had not been abated within the time frame provided. Based on the 

testimony of Mehalchick and Randy Rothermel Sr. regarding their telephone conversation on 

4 Section 104(b) of the Act states: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further extended, he shall 

determine the extent of the area affected by the violation and shall promptly issue 

an order requiring the operator of such mine or his agent to immediately cause all 

persons, except those persons referred to in subsection (c), to be withdrawn from, 

and to be prohibited from entering, such area until an authorized representative of 

the Secretary determines that such violation has been abated. 

32 FMSHRC Page 319 
January 19, 2010, it is clear the operator did not intend to abate Citation No. 7000438 at the time 

of its issuance, and thus extending the abatement period further would have been fruitless. I 

conclude the two requirements for issuance of the withdrawal order were met, and Order No. 

7000439 is hereby affirmed. 

ORDER 

In view of the above, IT IS ORDERED that RS&W Coal Company's contests are 

DISMISSED; section 104(a) Citation No. 7000438 is MODIFIED, by reducing the level of 

negligence from "high" to "low," and is AFFIRMED as modified; and section 104(b) Order No. 

7000439isAFFIRMED. 

UlLG~ 

Administrative 

Alan G. Paez 

Law Judge 

~ 

Distribution: 

Randy Rothermel, President, R S & W Coal Company, Inc., 207 Creek Road, K.lingerstown, PA 

17941 

John Strawn,, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 

630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

/lp 

32 FMSHRC Page 320 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

March 9, 2010 

CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 2008-71-M 

A.C. No. 40-03269-127960 

v. 

CLAYSVILLE QUARRY, . Claysville Quarry 

Respondent 

Before: Judge Feldman 

DECISION ON CIVIL PENALTY 

AND 

ORDER TO PAY 

The Claysville Quarry (Claysville) is a dimensional stone quarry, owned and operated by 

Dennis Roy Hinch. At the facility stone is extracted and stacked on pallets for customer delivery. 

The blasting is performed by Hinch. Hinch employs four employees who operate the mine 

equipment used during the extraction process. Francisco Morales Stone Stackers, a contractor, 

provides the services to load the extracted dimensional stone onto pallets. 

I. Background 

Section 104(g) of the Mine Safety and Health Act of 1977, as amended, ("the Act"), 

30 U.S.C. § 814(g), authorizes an inspector to immediately withdraw individuals working 

at a mine who have not received the requisite new miner training. On August 21, 2007, 

Inspector Russell E. Ware issued 104(g)(l) Order No. 6123908, the sole subject of this 

proceeding, for an alleged violation of the mandatory safety standard in 30 C.F.R. § 46.8(a)(l) 

that specifies the requirements for new miner training. The 104(g) order was issued after Ware 

observed nine contract employees stacking stone on pallets. These contract employees had not 

received new miner training. 

32 FMSHRC Page 321 
Inspector Ware designated the violation as significant and substantial (S&S). 

Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed to by the 

violation will result in an accident causing serious injury. Cement Division, National Gypsum, 

3 FMSHRC 822, 825 (April 1981). The violation was attributable to a high degree of 

negligence. However, although Hinch was aware of the training requirements for new miners, 

the 104(g) order does not allege that Hinch knew he was responsible for training contract 

employees. Moreover, although these laborers are ''miners" as defined by section 3(g) of the Act 

by virtue of their work at a mine, they are not operating mine equipment or otherwise exposed to 

hazards normally associated with the extraction process. 30 U.S.C, § 803(g). Significantly, 

the Secretary does not allege that the violation is attributable to a reckless or conscious disregard 

evidencing an unwarrantable failure. Consequently, the failure to provide new miner training 

evidences, at most, a moderate degree of negligence. The Secretary proposes a penalty of 

$3,224.00 for 104(g)(l) Order No. 6123908. 

II. Settlement Conferences 

In an attempt to encourage settlement a telephone conference was conducted with the 

parties on January 20, 2010. During the conference call Hinch stipulated that the necessary 

training was not provided to the nine contract employees. Hinch also stated that he did not 

dispute that the violation was significant and substantial. Consequently, with the exception 

of the appropriate civil penalty to be assessed, there are no remaining unresolved issues of 

material fact. Given the Commission's unprecedented caseload, in an effort to encourage 

settlement, I explained to the Secretary's counsel that the appropriate civil penalty is a de novo 

determination that.is not affected by the Secretary's civil penalty formula in 30 C.F.R. Part 100. 

I noted that I failed to see any aggravating circumstances that would warrant the $3,224.00 

proposed civil penalty. On the contrary, I noted that the small size of the operator, the lack of 

any significant history of previous violations, and Claysville's rapid compliance with the training 

requirements after service of the 104(g) order were mitigating factors. In addition, I explained 

that the failure to provide new miner training to nine contract employees was one oversight that 

did not justify multiplying the gravity ninefold. 

In view of the above, I urged the parties to settle this matter for a reduced civil penalty 

of$240.00. During the January 20, 2010, telephone conference, Hinch agreed to pay $240.00 

in settlement of the subject 104.(g) order. In a subsequent telephone conference with the parties, 

on January 27, 2010, the Secretary's counsel, after conferring with Mine Safety and Health 

Administration officials, rejected the $240.00 civil penalty that I had suggested. Consequently, 

over the objection of the Secretary's counsel, I advised the parties that I was canceling the 

previously scheduled hearing as there are no unresolved material facts that warrant litigation. 

On January 29, 2010, I issued an Order canceling the hearing and ordering the Secretary 

to address the statutory penalty criteria to the facts of this case. The Secretary responded on 

February 19, 2010. The Secretary's response did not identify any aggravating circumstances, and 

her response did not refute the above mentioned mitigating circumstances. 

32 FMSHRC Page 322 
III. Statutory and Case Law Framework 

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 11 O(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). 

In keeping with this statutory require~ent, 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 pmposes of the Act. Id. At 294, 

Canera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that 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). 

ORDER 

As discussed above, there are no remaining unresolved material questions of fact. 

Applying the section 11 O(i) statutory criteria, the small size of the operator, rapid efforts at good 

faith abatement, lack of a significant history of previous violations, a reduction in gravity because 

32 FMSHRC Page 323 
the failure to train nine individuals is attributable to one oversight, and a reduction in negligence 

from high to moderate, warrant a significant reduction in the $3,224.00 civil penalty proposed by 

the Secretary. Rather, consistent with the statutory penalty criteria, a civil penalty of $240.00 

shall be imposed for the subjection 104(g)(l) order. I note, parenthetically, that imposition 

of a $240.00 penalty is commensurate with the total $281.00 civil penalty proposed by the 

Secretary in a similar case for two separate violations of the new miner and hazard training 

provisions in Part 46 of the Secretary's regulations also committed by a small mine operator. 

·30 C.F.R. Part 46. See SCP Investments, LLC., 32 FMSHRC 119, 129 (Jan. 2010) (ALJ). 

Accordingly, IT IS ORDERED that the Claysville Quarry pay a civil penalty of $240.00 

within 30 days of the date of this order in satisfaction of 104(g)(l) Order No. 6123908. 

Payment should be sent to: Mine Safety and Health Administration, U.S. Department of Labor, 

Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. The payment should reference 

Docket No. SE 2008-71-M and A.C. No. 40-03269-127960. Upon receipt of timely payment, 

IT IS ORDERED that the captioned civil penalty case IS DISMISSED. 

Distribution: (Regular & Certified Mail) 

Brian C. Winfrey, Esq., Office of the Solicitor, 618 Church Street, Suite 230, 

Nashville, T,N 37219 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, Arlington, VA 22209 

Dennis Roy Hinch, Owner, Claysville Quarry, 3458 Old Highway 70, 

Crossville, 1N 38572 

/rps 

32 FMSHRC Page 324 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-99 /FAX: 202-434-9949 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), on 

behalf of KEVIN BAIRD, 

Complainant 

V. 

PCS PHOSPHATE COMP ANY, INC., 

Respondent 

March 10, 2010 

TEMPORARY RElNSTATEMENT 

PROCEEDING 

Docket No. SE 2010-74-DM 

SE-MD-09-08 

DISCRIMINATION PROCEEDING 

Docket No. SE 2010-304-DM 

SE-MD-09-08 

Mine ID 31-00212 

Mine: Lee Creek 

DISSOLUTION OF ORDER OF TEMPORARY ECONOMIC 

REINSTATEMENT AND DISMISSAL OF PROCEEDINGS 

Before: Judge Bulluck 

These matters are before me upon an Application for Temporary Reinstatement and a 

Complaint of Discrimination filed by the Secretary of Labor ("the Secretary") on behalf of Kevin 

Baird ("Baird") against PCS Phosphate Company, fuc. ("PCS"), pursuant to section 105(c) of the 

Federal Mine Satety and Health Act of 1977, 30 U.S.C. § 815(c). 

On October 14, 2009, the Secretary filed an Application for Temporary Reinstatement for 

an order requiring PCS to temporarily reinstate Kevin Baird to his former position or similar 

position at the same rate of pay as. prior to his alleged termination. On December 18, 2009, an 

Order Granting Temporary Reinstatement of Baird to his former position of shift foreman, or to a 

similar position at the Lee Creek Mine, retroactive to November 16, 2009, was issued. 

Thereafter, on January, 11, 2010, the parties filed a Joint Motion to Amend the Order Granting 

Temporary Reinstatement, seeking temporary economic reinstatement of Baird. I granted the 

joint motion in an Amended Order on February 2, 2010. 

On February 4, 2010, the Secretary filed a Notice of Withdrawal of her Discrimination 

Complaint filed on behalf of Baird, and requested that Baird's economic reinstatement remain in 

effect until the Commission's entry of a final order on the merits of Baird's potential action 

under section 105( c )(3) of the Act. The Secretary essentially asserts that the Act provides for 

temporary reinstatement under sections 105(c)2 and 105(c)(3), notwithstanding a determination 

32 FMSHRC Page 325 
by the Secretary, under section 105( c )(2), that no discrimination has occurred. As support for her 

position, the Secretary notes that, currently, there is no Commission precedent on this issue. 

Specifically, in Peter Phillips v. A&S Construction Co., 31FMSHRC975 (Sept. 2009), the 

Commission split evenly on the question, which allowed ALJ David Barbour's dissolution of a 

temporary reinstatement, in the absence of a 105(c)(2) complaint, to stand. 1 This issue, again, is 

currently before the Commission. See Mark Gray v. North Fork Coal Corp., 31 FMSHRC 1167 

(Sept. 2009) (ALJ). 

In response to the Secretary's withdrawal of the Baird Complaint, PCS filed a Motion to 

Dissolve Order of Economic Reinstatement on February 12, 2010, arguing that dissolution of a 

temporary reinstatement is required when the Secretary determines that no discrimination has 

occurred and consequently withdraws her section 105(c)(2) complaint. PCS asserts that this 

conclusion is consistent with the plain language of section 105(c). Additionally, in its March 5, 

2010, reply to the Secretary's opposition to dissolution, PCS argues that a miner's private action 

under section 105(c)(3) is an additional remedy, rather than a continuation of the Secretary's 

section 105( c )(2) complaint under which temporary reinstatement is afforded. 

Section 105( c )(2) provides, in pertinent part: 

If the Secretary finds that such complaint was not frivolously brought, the 

Commission, on an expedited basis upon application of the Secretary, 

shall order the immediate reinstatement of the miner pending final order 

on the complaint (emphasis added). 

30 U.S.C. § 815(c)(2). 

Section 105(c)(3) provides, in pertinent part: 

If the Secretary, upon investigation determines that the provisions of this 

subsection have not been violated, the complainant shall have the right, within 30 

days notice of the Secretary's determination, to file an action in his own behalf 

before the Commission, charging discrimination or interference .... 

30 U.S.C. § 815(c)(3). 

Although the Commission in Phillips, 31 FMSHRC 975, was unable to reach a majority 

decision, I find the reasoning of Commissioners Young and Duffy persuasive. The statutory 

language of sections 105(c)(2) and 105(c)(3) directly speaks to the issue before me. Section 

105(c)(2) explicitly provides for temporary reinstatement under the Secretary's involvement in 

investigating and filing a complaint with the Commission, whereas language to that effect is 

notably absent from section 105(c)(3). 

1 See Peter Phillips v. A&S Construction Co., 30 FMSHRC 1119 (Nov. 2008) (ALJ). 

32 FMSHRC Page 326 
The legislative history further demonstrates Congressional intent to restrict temporary 

reinstatement to the Secretary's responsibilities under the anti-discrimination provision of the 

Act. Under section 105( c )(2), only the Secretary is charged with conducting the initial 

investigation into the miner's claims, and is required to complete her investigation within a 

limited time. Congress sought to balance the miner's likely economic hardship against the 

operator's interest in controlling its workforce. Phillips, 31 FMSHRC at 984-85; Peter Phillips 

v. A&S Construction Co., 30 FMSHRC 1119 (Nov. 2008} (ALJ}.2 Consequently, it implemented 

the remedy of temporary reinstatement, which would protect the miner until completion of the 

Secretary's investigation, and would only temporarily burden the operator. Phillips, 31 

FMSHRC at 985-86. Therefore, based on the Secretary's determination that section 105(c)(l) 

has not been violated, I conclude that temporary reinstatement shall terminate as of the date of 

her determination. 

WHEREFORE, the Amended Order Granting Temporary Economic Reinstatement is 

hereby DISSOLVED, effective February 4, 2010, and these proceedings are DISMISSED. 

Distribution: 

(}~Aidl ... ~fl.~ ~RBulluck Administrative Law Judge 

Carla M. Casas, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street SW, 

Room 7Tl 0, Atlanta, GA 30303 

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N Street NW, 

5t1t Floor, Washington, DC 20037 

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705 

Kevin Baird, 16008 US Highway 246 East, Pinetown, NC 27865 

/sdb 

2 See S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 1330-31. 

32 FMSHRC Page 327 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

March 10, 2010 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

MACH MINING, LLC., 

Respondent 

Docket No. LAKE 2008-184 

A.C. No. 11-03141-137716 

Mach# 1 Mine 

DECISION 

Appearances: Travis W. Gosselin, Esq., U.S. Department of Labor, Chicago, Illinois, 

on behalf of the Petitioner 

David J. Hardy, Esq., Charleston, West Virginia, on behalf of the Respondent 

Before: Judge Barbour 

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor 

on behalf of her Mine Safety and Health Administration (''MSHA") against Mach Mining 

Company ("Mach") pursuant to section 105(d) (30 U.S.C. § 815(d)) of the Federal Mine Safety 

and Health Act of 1977 (the "Act"). 30 U.S.C. § 801, et seq. The Secretary alleges that, in two 

instances, Mach violated mandatory safety standards for the surface areas of underground coal 

mines at its No. 1- Mine, an underground bituminous coal mine located in Williamson County, 

Illinois. The Secretary also charges that the violations were due to Mach's "high negligence." 

The Secretary seeks to assess Mach $550 for each alleged violation. Mach denies that it violated 

the standards or, if it did, that the violations were due to high negligence. The matter was heard 

in Carbondale, Illinois. 

STIPULATIONS 

At the commencement of the hearing the parties stipulated as follows: 

1. Mach is an "operator" as defined in Section 3( d) of the Act. 

2. The operations of Mach at its No. 1 Mine are subject to the 

Act. 

32 FMSHRC Page 328 
3. [The] proceeding is subject to the Federal Mine Safety and 

Health Review Commission (the "Commission") and its 

designated administrative law judge. 

4. [The inspector who issued the citations in which the 

violations are alleged] was acting in his official capacity as 

an authorized representative of the Secretary when the 

citations wereissued. 

5. A true copy of each of the citations ... was served on 

Mach as required by the Act. 

6. The total proposed penalty for the citations at issue will 

not affect Mach's ability to continue in business. 

7. The citations contain in Exhibit A attached to the petition 

are authentic copies of the citations at issue in this 

proceeding. 

8. The Rl 7 assessed violation history report is an authentic 

copy and may be admitted as a business record of 

MSHA. 

9. On September 7, 2007, Mach ... installed and was 

operating an energized 480-volt non[-]pennissible pump 

in the No. 1 south shaft at the ... bleeder shaft construction 

site. 

See Tr. 10-12; See also Jnt. Exh. 1 

THE PARTIES' CONTENTIONS 

Prior to the testimony, counsels explained their positions. Counsel for the Secretary 

stated he would show that the company pumped water from a shaft at the mine using a nonpermissible 480 volt submersible pump and that the pump was located below the collar of the 

shaft.1 Because section 77.1914(a) requires all electrical equipment used below the collar of a 

shaft during excavation to be permissible, the Secretary maintained the company violated the 

standard as charged. Counsel stated the critical question is whether "excavation" was underway 

when the shaft was dewatered. He maintained that within the context of the standard, 

"excavation" means the entire process of bringing the shaft to the point where it can serve its 

1

The pumping process is referred to as "de-watering" the shaft. 

32 FMSHRC Page 329 
purpose of ventilating the bleeder entries of the mine's underground workings. Dewatering the 

shaft is a necessary part of this process and, therefore, should be regarded as "excavation." 

Counsel also stated that he expected the testimony to show that on September 7, 2007, the 

company did not have a plan approved by MSHA to de-water the shaft. He maintained that, in 

·addition to violating section 77.1914(a), Mach violated section 77.1900(a), which requires each 

operator of a coal mine to prepare and submit for the MSHA district manager's approval a plan 

providing for the safety of its workmen in each shaft that is constructed. Tr. 19-21. 

Counsel for Mach countered that on September 7, 2007, excavation had been completed 

on the shaft. The shaft was sunk by Mach's contractor, North American Drillers (''North 

American"), and North American had moved all of its equipment to the site where it would sink 

another shaft.2 Counsel admitted the pump was in fact non-permissible, but because the work of 

excavating the shaft was finished, electrical equipment used below the shaft's collar was not 

required to be permissible. 

Counsel also maintained that Mach did not need a plan approved by MSHA in order to 

dewater the shaft. An approved plan that permitted dewatering was already in place on 

September 7. Once Mach decided that it would dewater the shaft, Mach's personnel used a 

pump that had been used iri. 2005 to dewater another shaft. The pump was non-permissible and 

MSHA had not objected when it was used in 2005. On September 7, 2007, MSHA surprised 

Mach by taking the position that the dewatering method had to be approved in another plan. Tr. 

22. Counsel further stated that in the event MSHA was right and it needed an approved plan, the 

requirement was met by a provision in North American's MSHA-approved plan that stated either 

employees of Mach's contractor or employees of Mach could dewater the shaft. Tr. 23. 

THE TESTIMONY 

Dean Cripps is an electrical engineer who also works for MSHA as a coal mine electrical 

inspector. His duties include conducting electrical inspections of shaft construction sites. Tr. 26. 

Prior to September 7, 2007, Cripps inspected Mach's No. 1 Mine several times. Tr. 28-29. On 

September 7, Cripps was assigned to go again to the mine. He was instructed that this time his 

inspection should include the south shaft area.3 

Cripps drove to the mine, parked, and walked to the mine office. At the office, Cripps 

informed mine management that he would be inspecting the south shaft site. Tr. 32. Cripps 

2

The two shafts were approximately 150 feet apart. Tr. 76. 

3

The south shaft is a bleeder shaft, an air shaft that, according to Cripps, is "drilled down into 

the works of the mine usually at the back of a long wall panel." Tr. 33. A bleeder shaft assists in 

ventilating the long wall and the long wall gob. Id.; see also Tr. 40. 

32 FMSHRC Page 330 
proceeded to the area, which was approximately five and one-half miles from the mine portal. 

Id., Tr. 75. 

At the site, Cripps met Mike Jackson, a shift foreman and job supervisor for North 

American. North American had finished drilling the south shaft to its final depth [

4

]and was in 

the process of drilling another shaft, the north bleeder shaft (the north shaft). The north shaft was 

located about 550 feet to 600 feet from the south shaft. Tr. 33. North American's drilling 

equipment had been removed from the south shaft. The shaft had been collared and a steel grate 

had been installed over its mouth. Tr. 73. The south shaft was full of water. Tr. 39. Before the 

shaft could serve its purpose of ventilating underground parts of the mine, it had to be de-watered 

and lined. 5 After the shaft was de-watered and lined, Mach intended to connect the shaft to the 

active underground workings.6 Tr. 39-40; 40-41. 

Jackson told Cripps that the water from the south shaft would be pumped to and into the 

north shaft, because the water in the north shaft was "too heavy." Tr. 42. Cripps asked Jackson 

what he meant, and Jackson explained the "blind drilling" process to Cripps. The process was 

used by North American to drill both the south and north shafts. Under the process, as drilling 

advanced, water was allowed to fill the shaft. 

Cripps described the process: 

[T]hey excavate the topsoil ... down to the bedrock. 

And then they form up and pour a concrete collar at 

4

Cripps understood that the south shaft had been drilled through the seam of coal that Mach 

was actively miJ#ng and that it continued downward for approximately 100 more feet into another 

coal seam then being mined. The shaft "bottomed" in the second seam. Tr. 34. 

5

Mach typically contracted out such work, and in this instance, Heartland Pump 

("Heartland") was hired to install de"."watering pumps at the south shaft and Cowin Co. ("Cowin") 

was hired to line the shaft. 

6Cripps stated: 

Once the shaft had been lined and driven to its depth 

... the mine operator would take ... equipment ... 

normally used underground ... to excavate coal from 

the coal seam .... They would take their continuous 

miners and remove the coal ... to the point [where] 

... they intersect with the shaft ... and ... connect 

the ... coal seam with the shaft. 

Tr. 40-41. 

32 FMSHRC Page 331 
the surface . . . . And then they line the top .. . 

25 feet of the shaft with steel. So you'd have .. . 

approximately, a 25-foot hole there, 14 feet in 

diameter. . . . They then set up a drilling rig. First 

they drill a small pilot hole ... and they set their big 

drill rig up on the hole and they proceed to drill a 

hole[,] down into the (e]arth. As they're drilling 

the hole[,] the hole is filled with water the whole 

time and the water is used to mix with the drill 

cuttings ... so ... [the cuttings] can be pumped 

out of the hole as the hole [is] extended down 

to the [ e ]arth. 

Tr. 35.7 

Cripps understood that water in the north shaft contained so many drill filings and other 

drilling residue, it was too "heavy" to be pumped to the surface and sent to the pit where it was 

ultimately deposited. To make the water/filings mixture "pumpable," the mixture had to be 

diluted with water from the south shaft. Id. This process was underway and a non-permissible 

pump was used in the south shaft to take the water from the south shaft to the north shaft.8 Tr. 

42, 74. The pump in the south shaft was fully submerged in water when it was operated. r. 74. 

At the time ofCripps's inspection, only Jackson and Heartland's employees were present 

at the south shaft site. Tr. 75. They told Cripps the non-permissible pump had been installed in 

the south shaft for "a couple of weeks" Tr. 63. In addition, Heartland's employees told Cripps 

that, at Mach's request, they were preparing to install a second pump in the south shaft. Tr. 38, 

52, 75. Th~ second pump also would be non-permissible. Id., Tr. 41. Cripps described the nonpermissible pumps as cylindrical, and approximately six to eight inches in diameter and eight feet 

7

Pete Hendrick, Mach's mine superintendent, also described the process. He stated: 

Tr. 99. 

Blind drilling is a ... relatively new technique 

.... A ... large bit is placed on the surface, a pilot 

hole is drilled and you .... drill it out. You float 

the cuttings out with heavy water and air. 

8

Because drilling had been completed in the south shaft and most of the solids had been 

removed, the water in the south shaft contained very few filings and/or other drilling residue. Most 

of the residue that remained had settled to the bottom of the shaft. Tr. 123-124. The water in the 

south shaft was described by Hendrick as "crystal clear." Tr. 123. 

32 FMSHRC Page 332 
in length. Their motors were located at the bottom of the cylinders. The pumps' "intakes" were 

below the motors. Water and any residue in the water was taken into the pumps through the 

intakes and forced to the surface. The pumps were operational only when they were submerged. 

Tr. 37-38. 

Cripps testified that mandatory safety standard section 77.1914(a) requires "any electrical 

equipment used below the collar of the shaft or slope during excavation [to] be permissible." Tr. 

37. fu his opinion, Mach violated the standard because a non-permissible electric pump had been 

installed and used below the collar of the south shaft and a second such pump was being 

installed. Tr. 37. Cripps believed that Mach was highly negligent in allowing the use of a nonpermissible pump. Cripps explained that his supervisor, Ron Stahlhut, told him that he, Stahlhut, 

had spoken with a Cowin official or officials and explained that Cowin's shaft-sinking plan had 

to include "how they were going to dewater [the] shaft using permissible pumps before [the] plan 

would be approved." Tr. 44. Although Stahlhut did not tell Cripps he had spoken with any of 

Mach's officials about having to use permissible pumps before a plan would be approved, Cripps 

believed that at least some of Mach's employees knew about Stalhut's conversation with 

Cowin's employees. Tr. 47. fu Cripps's view, Hendrick was involved in everything at the mine, 

including all of the plans submitted by Mach's contractors for MSHA's approval. Although 

Cripps had no first-hand knowledge as to any of Hendrick's conversations, he speculated that 

Hendrick knew that failing to provide for permissible pumps would prevent MSHA from 

approving a shaft-sinking plan for the mine. Tr. 85. Therefore, Mach officials ''took it upon 

[themselves]" to proceed without an approved plan. Tr. 48. They "contact[ed] Heartland .•. to 

install the non-permissible pumps in the shaft and [to] pump the water." Id. Cripps stated, "I 

made an assumption that Mr. Hendrick was aware of what MSHA had informed Cowin." Tr. 85. 

Therefore, in Cripps's opinion, use of the non-permissible pump was the result of Mach's "high 

negligence." Id. 

With regard_to the hazard posed by using a non-permissible pump, Cripps explained that 

because the shaft was being sunk through a coal seam, methane could be liberated and could 

accumulate above the water level in the shaft. Tr. 45. If the water seeped out of the shaft and the 

water level dropped below the level of the pump - something that could happen if there was a 

crack in the shaft's walls or in a coal seam the shaft penetrated -when the pump was turned on, 

"you would have a non[-]permissible electric motor that would no longer be covered by water 

and [there] could possibly be an explosive atmosphere of methane." Tr. 46. fu other words, 

"[U]se of a non-permissible pump ... in an atmosphere that contains methane could cause a 

methane ... [ignition] or explosion." Tr. 45. The resultant heat would "at least"cause bums to 

miners. Id. 

fu addition to violating section 77.1914(a), Cripps believed Mach violated section 

77.1900(a). He based his belief on the fact that water was being pumped from the shaft with a 

non-permissible pump and a shaft-sinking plan had not been approved by MSHA allowing this 

kind of work. Tr. 50. Cripps acknowledged that nowhere in the standard is it specifically stated 

that the plan must include a provision requiring the use of permissible pumps. He also agreed 

32 FMSHRC Page 333 
that in March 2004, MSHA issued a compliance guide to operators and other interested parties 

regarding the information that the agency required in a plan submitted for approval (Tr. 79; Resp. 

Exh. 1) and that the guide did not state that the method of dewatering the shaft had to be 

included. Tr. 78. In fact, the guide did not mention dewatering at all. Tr. 80. However, Cripps 

pointed out that in setting forth what must be included in a plan, section 77.1900(a)(3) requires 

"[a] description of the construction work and methods ... used in the construction of the slope or 

shaft," and he stated he viewed dewatering the shaft as "construction work." Tr. 92. 

The only approved plan in existence on September 7, 2007, was North American's, 

which, according to Cripps, did not allow water to be pumped from the shaft. Tr 51. 54; Gov't 

Exh. 4. Although Provision 3-DV of the North American plan stated, ''The finished shaft will be 

left full of water to be removed at a later date by either the lining contractor or mine personnel," 

the plan did not state how the water would be removed.9 Tr. 76-77. Tr. 54, 76; Gov't Exh. 4. 

Cripps identified an approved plan that Cowin had submitted for a shaft that was sunk 

earlier during the initial construction of the mine. Tr. 58-59; Gov't Exh. 6. According to Cripps, 

this plan approved the use of two types of pumps for de-wateriing the shaft- a submersible 

permissible pump and a surface, non-permissible pump. 10 Tr. 60-61. In a cover letter to Cowin 

approving the plan, the district manager stated, "You are reminded that all electrical equipment 

used below the collar of the shaft must be permissible. See § 77 .1914 for a reference." Gov't 

Exh. 6 at 1; Tr. 62. Cripps noted that although the letter was addressed to a vice president of 

Cowin, a copy was sent to Hendrick. Tr. 62-63. 

Cripps believed that Mach was highly negligent in failing to have an approved plan. He 

explained that in making the finding, he relied on, "Basically, the same facts that I used in the 

determination of negligence on the previous citation." Tr. 64. 

According to Cripps, the hazard presented by working without an approved plan was that 

non-permissible equipment would be used below the shaft's collar, which in tum created the 

possibility of a methane ignition that would cause those working at or near the head of the shaft 

to suffer serious burn injuries. Tr. 64-65. However, Cripps agreed that such an accident was 

unlikely to occur (Tr. 88) and that he had no knowledge of a methane ignition ever occurring 

when a submerged, non-permissible pump was used to dewater a shaft. Tr. 89. 

9

1n fact, either shortly before or shortly after the inspection, Cowin submitted a plan to the 

MSHA district manager, but the plan, which was dated September 4, 2007, was not received in the 

MSHA district office until September 27. Tr. 56; Gov't Exh. 5. The only reference to dewatering 

the south shaft in the plan was on page 4, where it described the shaft as having been blind drilled 

and dewatered. Tr. 57; Gov't Exh. 5 at 4. In Cripps's view, the Cowin plan assumed the work of 

dewatering and lining the shaft had been completed. 

10Cripps stated the surface pump was not required to be permissible because "[t]he electric 

components of ... [the] pump [were] on the surface ... not below the collar of the shaft." Tr. 61. 

32 FMSHRC Page 334 
Peter Hendrick testified for Mach. He holds a B.S. in mining engineering and has 

extensive practical experience in underground coal mining, including the excavations of shafts. 

Tr. 95-97. He has been involved in the development of approximately 20 shafts, going back to 

1992 when he worked for a company other than Mach. Tr. 100. 

Hendrick explained that the first shaft drilled in connection with the mine was a return 

shaft and that Mach's contractor, North American, submitted a plan to MSHA for developing the 

shaft. Tr. 100. The plan involved the blind drilling method. The plan was approved by MSHA's 

district manager. TR. 100-101; Resp. Exh. 2. Hendrick testified that under North American's 

plan, the "finished shaft" was to be "left full of water to be removed at a later date by either the 

lining contractor ... or mine personnel." Tr. 101. In practice, this meant that the shaft was left 

full of water for several months. Tr. 102. According to Hendrick, the only job North American 

was hired for was to "[e]xcavate the shaft." Id. 

Because one of the Secretary's allegations was that a non-permissible pump had been 

used in the shaft "during [the shaft's] excavation" and in violation of section 77.1914(a), there 

was much discussion at the trial regarding the meaning of the word "excavation" as used in 

section 77.1914(a). In Hendrick's view, the word meant "the removal of material from the hole. 

Plain and simple." Tr. 102. He added, "There is nothing else involved in it." Id. Hendrick 

noted that the definition of"excavation" in an online dictionary is "to engage in digging, hauling 

out or removing," which is entirely consistent with his understanding of the word's meaning in 

section 77.1914(a). Tr 103; Resp. Exh. 3. 

Hendrick was asked about the process of developing the south shaft. He testified that the 

first step was hiring a contractor to drill the shaft. The second step was for the contractor - in 

this case, North American - to drill the shaft. The third step was to de-water the shaft. The 

fourth step was 'cutting into the shaft from the active workings. Tr. 136-137. The fifth step was 

lining the shaft. The sixth step was preparing the shaft to be used for ventilation of the mine, a 

process requiring the installation of manifolds and a fan at the top of the shaft. Tr. 137-138. 

Hendrick agreed that approved plans were needed to drill the shaft, to cut into the shaft from the 

mine and to line the shaft. Tr. 138-139. However, Hendrick did not think a plan was needed to 

dewater the shaft. Tr. 139. Althoμgh Cowin included a provision that referenced de-watering in 

its 2005 plan, Hendrick did not know why. Gov't Exh. 6; Tr. 139. He speculated that, "[Y]ou 

put stuff in your plan ... that's not required" in order to "get your plan through." Tr. 139-140. 

Hendrick had never heard that de-watering the shaft was considered "excavation." Tr. 

104. Hendrick believed the requirement to use a permissible pump was an archaic leftover from 

the days before "blind drilling," the days when the shaft was drilled, shot and mucked out. 11 Tr. 

11Hendrick described mucking out as the process of "pulling all the rock out in a muck 

bucket." Tr. 107. 

32 FMSHRC Page 335 
107. Before ''blind drilling," miners actually worked in the shaft. According to Hendrick, that 

was the reason for requiring the pump to be permissible. Tr. 108. However, with blind drilling, 

the only time miners entered the shaft was during the lining process, and this process took place 

after all of the water was removed from the shaft. Id. 

Hendrick recalled that when the citations were issued, he called the MSHA assistant 

district manager, Dave Wickham, and complained about having to use a permissible pump to 

dewater the shaft and to have a provision in an approved plan requiring the use of such a pump. 

According to Hendrick, Wickham told him that was "just the way [MSHA] District 8 

interpret[ ed]" the regulations. Tr. 114. Hendrick testified that he told Wickham, "[T]hey don't 

even make a permissible pump that will pump at this depth . . . There is not a single pump out 

there that will do this job" (Tr. 114; see also Tr. 124-125), and Wickham replied, "[Y]ou're a 

smart guy, Pete, go figure it out."12 Tr. 114. Hendrick emphasized that using a non-permissible 

pump was not hazardous, because the pump's motor functions only when it is under water. If the 

energized pump were exposed to air, the pump would automatically shut down. Tr. 117. 

Hendrick felt that defining dewatering the shaft as "excavation" was "really reaching." Tr. 119. 

Although he agreed that when the shaft was dewatered, a little of the drilling residue that had 

gone into suspension was removed with the water, he maintained most of the material just 

"settled out" {Tr. 119; see also Tr. 123), which was why he described the water removed from 

the shaft as "crystal clear." Tr. 120. 

Hendrick did not think the company violated section 77.1900(a). He stated: 

I can't read any work in any of the MSHA publication[ s] 

or the Code of Federal Regulations that requires us to 

have a plan to pump that water out of that hole .... I've 

never had a plan in the past to pump water out of a hole. 

Tr. 118. 

THE ISSUES 

The issues are whether .Mach violated the standards alleged in the citations, and, if so, 

whether the violations were caused by Mach's high negligence, and the amount of the civil 

penalties that must be assessed for any violations taking into consideration the civil penalty 

criteria set forth in section 1 lO(i) of the Act. 30 U.S.C. § 820(i). 

12ln fact, Mach dewatered the shaft by linking a series of permissible pumps and by 

incrementally lowering them as water was pumped from the shaft. Tr. 115. 

32 FMSHRC Page 336 
CITATION NO. 6666936 

30 C.F.R. § 77.1914(al - THE NON-PERMISSIBLE PUMP 

THE PARTIES' ARGUMENTS 

THE SECRETARY 

In the Secretary's view, the essential question is the meaning of the word "excavation" 

as it is used in the standard. The Secretary argues that the word encompasses "the entire process 

of constructing the shaft - up to and including when the mine is connected into the shaft and the 

shaft is lined." Sec. Br. 12. The Secretary states: 

The excavation of a shaft is not simply the 

act of digging out a hole; it is a multi-step 

process involving a series of distinct, but 

interrelated phases: drilling, dewatering, 

connecting, lining. The successful 

completion of each step is predicated on the 

completion of the preceding step, and all 

four steps must be completed before the 

shaft is capable of being put into service to 

ventilate the mine. Only then has the shaft 

been fully excavated. 

Sec. Br. 12. 

She asserts that "[ d]ewatering is no more or less a process of 'removal of material from 

the hole' than is ... floating out cut material." Sec. Br. 13. This is especially true since when 

the pump was first installed and energized[,] it removed some of the material left from the 

drilling process along with the water. Id. n. 4 (citing Tr. 108). 

The Secretary argues her interpretation of the word "excavation" is consistent with the 

dictionary definition of the word a~ set forth in Webster's Third New International Dictionary 

(2002). There, the word is defined as ''the action or process of excavating." (emphasis added) 

Sec. Br. 13. She notes that the word "process" is defined as "a progressive forward movement 

from one point to another on the way to completion: the action of passing through continuing 

development from a beginning to a contemplated end: the action of continuously going along 

through each of a succession of acts, events or developmental stages" (emphasis added), and she 

argues that "[t]o the extent that dewatering is part of a succession of acts directed towards 

completion of the shaft, it is clear that dewatering is part of the process of 'excavation' as that 

term is used in [s]ection 77.1914(a)." Sec. Br. 13-14. Because the parties agree that the pump 

used to dewater the shaft was non-permissible (Stip. 9), and because the pump was located below 

the collar of the shaft, Mach violated Section 77.1914(a) as charged. 

32 FMSHRC Page 337 
The Secretary also argues that Cripps's finding of"high negligence" is fully supported by 

his reasonable assumption that Hendrick knew a permissible pump was required, yet Mach used 

a non-permissible pump. It is reasonable for Cripps to assume Hendrick knew that MSHA would 

require language in a shaft-sinking plan requiring the use of a permissible pump because MSHA 

sent Hendrick a copy of its letter to Cowin, in which it reminded Cowin that "all electric 

equipment used below the collar of the shaft must be permissible." Gov't Exh. 6 at 1; Sec. Br. at 

15-16. Despite this knowledge, Mach had a non-permissible pump installed below the south 

shaft's collar and Mach used the pump. Sec. Br. at 7. 

MACH 

Like the Secretary, Mach asserts that the key to understanding whether or not a violation 

of section 77.1914(a) occurred is the meaning of"excavation" as the word is used in the 

standard. Mach relies on an internet dictionary definition of "excavation," which defines the 

word as meaning "to engage in digging, hollowing out or removing." Op Br. at 7. It argues that 

the record supports finding that at the time of the inspection, excavation of the shaft had been 

completed. North American had hollowed out the shaft all of the way to its bottom. North 

American had moved its equipment to another shaft, and it had placed a steel grate over the shaft, 

which prevented miners entering it. Id. 

Moreover, it asserts that if a violation occurred, it was not due to Mach's "high 

negligence." There is no evidence of any conversations between MSHA and Mach regarding the 

use of non-permissible pumps for dewatering a shaft. Op. Br. af8. Cripps's assessment of 

negligence was based entirely upon assumptions based on communications between MSHA and 

third parties. Id. at 8-9. Moreover, in 2005, the company used the same non-permissible pump 

to dewater a return ventilation shaft, and MSHA knew about it; yet the agency did not charge 

Mach with a violation of the standard. Id. at 9. 

THE VIOLATION 

The citation states: 

An energized 480 volt non-permissible pump is installed below the collar of the# 1 (south) bleeder 

shaft at the Mach # 1 mine bleeder shaft 

construction site. 

Gov'tExh. 2 

As has been stated repeatedly, section 77 .1914( a) requires in pertinent part that, "Electric 

equipment employed below the collar of a ... shaft during excavation shall be permissible." The 

parties essentially agree that the citation accurately describes the situation Cripps found at the 

south shaft on September 7, 2007, and that a non-permissible pump was in fact installed below 

32 FMSHRC Page 338 
the collar of the shaft. Stip. 9. They also agree the pump had been used to pump water from the 

south shaft to the north shaft. Id.; Tr. 37, 42, 51, 74. Under the standard, the electrical 

equipment must be "employed." "Employed" is the past tense of the verb "employ." The verb 

means "to make use of" Websters Third New International Dictionary (2002) at 743. 

Obviously, the pump was made use of when it pumped water from one shaft to another. 

Therefore, I find the pump was "employed" within the meaning of section 77.1914(a). 

The all important question is whether the pump was employed "during excavation." If 

so, the violation existed as charged. If not, the citation must be vacated. "Excavation" is not 

defined in the Act, in the standards, or in any official MSHA publication that has been brought to 

my attention. However, as used in the mining industry, "excavation" is recognized to mean: 

"The act or process ofremoving soil and/or rock materials from one location and transporting 

them to another. It includes digging, blasting, braking, loading and hauling either at the surface 

or underground." American Geological Institute, Dictionary of Mining, Mineral, and Related 

Terms, 2nd ed. (1997) at 193 (emphasis added).13 

Although the question is close, I conclude that as used in the standard "excavation" 

means the "process" of removing soil and/or rock materials from one location and transporting · 

them to another and that this process includes dewatering the shaft. I reach this conclusion based 

on the definitions in the Mining Dictionary and in Websters that define excavation as a process, 

and on testimonial evidence that the process of dewatering the shaft involved the removal of at 

least a small amount of suspended residue that remained from drilling the shaft. The definitions 

require me to look beyond the individual steps in the shaft sinking process and to regard as 

"excavation" all of the steps necessary to remove the rock materials resulting from the process 

prior to the shaft's serving its ventilation purpose. When viewed from this perspective, 

dewatering is a part of the shaft's excavation process and any pump used below the collar of the 

shaft must be permissible. 

I reach this conclusion not in deference to the Secretary's view, but as a result of the plain 

meaning of the term "excavation" as used in the standard. While it is true that in colloquial 

speech the word "excavation" frequently is restricted to the actual digging out of soil and rock, 

the emphasis in the definitions on the "process" of excavation connotes a broader, more 

expansive meaning, one that, here,_I find the Secretary has properly applied. The Secretary 

established the violation as alleged. 

NEGLIGENCE 

131n Webster's, too, "excavation" is defined as an "action or process," and while 

"excavating" is defined as "[t]o hollow out: to form a cavity or [a] hole," and to "dig out and 

remove," it also is defined as to "[ s ]hape by removing material so as to leave a space." Webster's 

at 791. 

32 FMSHRC Page 339 
While I conclude Mach violated section 77.1914(a), I do not subscribe to the Secretary's 

view that the violation was due to the company's "high negligence." As the company accurately 

points out and as the Secretary recognizes, Cripps's high negligence finding was based entirely 

on assumptions. Cripps believed that Hendrick knew MSHA required the use of a permissible 

pump because Cripps's supervisor told Cripps that he, the supervisor, had informed an official 

(or officials) of Cowin that a permissible pump had to be used. Tr. 44. Because Hendrick was 

"involved in all of the operations of [the] mine[,]" Cripps surmised that Hendrick knew of the 

permissibility requirement. Tr. 48. However, there is no evidence to support finding that 

Hendrick spoke with anyone from Cowin about the requirement to use permissible pumps below 

the shaft's collar. Nor is there any evidence that MSHA communicated directly either orally or 

in writing with any Mach official on the subject. Cripps's assumptions are reeds too slender to 

support his high negligence finding. 

However, the fact that MSHA never communicated directly with Mach on the 

requirement prior to September 7, 2007, does not absolve the company of meeting the standard 

of care required by the circumstances. A careful reading of the standard should have revealed to 

company officials that excavation of the shaft included the entire process of removing material to 

allow the shaft to fulfill its purpose, and this process included dewatering. Although Mach's 

officials did not meet this standard of care, their lack of care was ordinary, not high. 

CITATION NO. 6666935 

SECTION 77.1900(a) - THE LACK OF AN APPROVED PLAN 

THE PARTIES' ARGUMENTS 

THE SECRETARY 

The Secretary asserts that Mach or its contractors did not have an MSHA-approved plan 

in place specifying how the shaft would be dewatered.14 The Secretary maintains it was Mach's 

responsibility to make sure an approved plan was in place, a plan that specified how a contractor 

or mine personnel would remove the water from the shaft. She further asserts that to gain 

approval under section 77.1900(a), the plan had to stipulate that all electrical equipment, 

including a dewatering pump, used below the collar of the shaft, would be permissible. In the 

Secretary's view, dewatering the shaft without an approved plan violated section 77.1900(a). 

Sec. Br. at 2. 

14The only MSHA-approved plan that mentioned removing water from the south shaft was 

North American's plan. It was approved by the agency on January 8, 2005. It stated, ''The finished 

shafts will be left full of water to be removed at a later date by either the lining contractor or mine 

personnel." Id.; Gov't Exh. 4. No language in the plan spoke to how the shafts would be dewatered. 

Sec. Br. 14. 

32 FMSHRC Page 340 
The Secretary notes that section 77.1900(a)(3) states that all shaft-sinking plans shall 

include, "A description of the construction work and methods to be used in the construction of 

the slope or shaft, and whether part of all of the work will be performed by a contractor and a 

description of that part of the work to be performed by a contractor." Referencing Cripps's 

testimony, the Secretary maintains that "construction work," as the term is used in the standard, 

includes the process of dewatering the shaft. Sec. Br. 18 (citing Tr. 83). Therefore, an approved 

plan needs to include language specifying how a shaft will be dewatered (including a description 

of the methods to be used, as well as language identifying which contractor will perform the 

dewatering). North American's approved plan, which states, "The finished shafts will be left full 

of water to be removed at a later date by either the lining contractor or mine personnel" did not 

meet these requirements. Sec. Br. 17-18. 

The Secretary maintains that Mach was aware that MSHA required an approved plan to 

be in place before dewatering began. She points out that several months before Cripps's visit to 

the mine, his supervisor, Ron Stahlhut, told Cripps that he (Stahlhut) spoke with Cowin's 

personnel and told them that in order for MSHA to approve Cowin's shaft and slope sinking 

plan, the plan would have to include a provision that the shaft would be dewatered using a 

permissible pump or pumps. Sec. Br. at 7; 15. Cripps was sure Hendrick knew of this 

conversation. · 

In addition, in 2005, when MSHA approved a plan for dewatering a shaft, the agency 

advised Cowin's Vice President for Safety by letter that "all electrical equipment used below the 

collar of the shaft must be permissible," and Hendrick was sent a copy of the letter. Sec. Br. at 8 

(quoting Gov't Exh. 6). Therefore, Cripps properly found that Mach's failure to make sure an 

approved plan was in place prior to dewatering the shaft represented high negligence on the 

company's part. Id. 

MACH 

Mach notes that section 77.1900(a) requires plans be submitted to protect the safety of 

workmen "[i]n each ... shaft." Op. Br. at 10 (quoting section 77.1900(a); "Each operator of a 

coal mine shall prepare and submit for approval ... a plan providing/or the safety of workmen in 

each ... shaft (emphasis added).) Workmen were not in the shaft during the dewatering process. 

Therefore, requiring a plan is inconsistent with the purpose of the regulation. Op Br. at 11-12. 

Mach further notes that none of the listed topics that must be included in an approved plan, 

topics found in section 77.1900(a)(l) through section 77.1900(a)(9), mention dewatering. Id. 

Moreover, MSHA's own compliance guide on slope and shaft sinking plans, dated March 2004, 

contains no mention of dewatering a shaft. Id. at 10-11; See Op. Exh. 1. Absent any requirement 

that dewatering be included in a plan, there is no basis to find that a failure to have an approved 

plan that includes dewatering violates section 77.1900(a). 

Mach further argues that even if section 77.1900(a) is somehow construed as requiring a 

plan for dewatering the shaft, North American had a plan approved by MSHA which provided 

32 FMSHRC Page 341 
that the shaft would be left full of water to be removed later by either the lining contractor or 

mine personnel. 

Finally, Mach reiterates its argument that Cripps's negligence finding cannot be upheld, 

because it is based solely on hearsay and assumptions. Op. Br. at 12-13. 

The citation states: 

THE VIOLATION 

Work is being performed at the #1 (south) bleeder 

shaft at the Mach #1 mine bleeder shaft construction 

area. Water that was left in the shaft when North 

American Drillers completed drilling the shaft 

is now being pumped out of the shaft. One 

submersible pump has been installed in the shaft 

and another is being prepared to be installed by 

Heartland Pump. Mach ... does not have an 

approved plan to allow this work in the shaft. 

Gov't Exh. 3. 

Section 77.1900(a) states in part: 

Each operator of a coal mine shall prepare and 

submit for approval by the ... [MSHA] District 

Manager for the district in which the mine is 

located, a plan providing for the safety of 

workmen in each slope or shaft .... The plan 

shall be consistent with prudent engineering 

design. The methods employed by the 

operator shall be selected to minimize the 

hazards to those employed in the initial or 

subsequent development of any slope or 

shaft[.] 

Following section 77.1900(a), the standard sets forth nine topics the plan must include. 30 

C.F.R. § 77.1900(a)(l) through (a)(9). 

Cripps testified, and Mach does not dispute, that on September 7, 2007, neither Mach nor 

any of its contractors had a plan approved under section 77 .1900( a) that required the use of 

permissible pumps to dewater the south shaft. Tr. 51, 54. The only approved plan, that of 

Mach's contractor, North American, left open the specifics of how the shaft would be dewatered. 

32 FMSHRC Page 342 
Tr. 53-55, Gov't Exh. 4. The plan simply stated, "The finished shaft will be left full of water to 

be removed at a later date by either the lining contractor or mine personnel." Gov't Exh. 4 at 3. 

North American's plan also specified, "There is no electrical equipment required below the shaft 

collari;." Id. at 4. 

Section 77.1900(a) states that "[t]he methods employed by the operator shall be selected 

to minimize the hazards to those employed in the initial or subsequent developmenf' of a shaft. 

While, as Mach notes, that plan is required to provide for the safety of workman "in each ... 

shaft," I do not subscribe to Mach's view that because workmen were not "in" the south shaft 

when it was dewatered, and/or when a second pump was being installed, a plan requiring the use 

of a permissible pump or pumps to dewater the shaft was not required, because such a plan 

would not have furthered the purpose of the regulation. Op. Br. 11-12. It seems clear that the 

phrase "in each ... shaft" as used in the regulation pertains to the shaft construction site, not just 

to the shaft itself. The standard requires a description of the "construction work and methods to 

be used in the construction of the ... shaft" and some of the equipment used in a shaft's 

construction is operated from and on the surface. The safety of the workmen operating such 

equipment must also be a concern of the plan. For this reason, I agree with the Secretary that the 

safety of those workmen on the surface above the collar who install and operate the dewatering 

pump or pumps must be taken into account of by any approved plan. 15 

It was incumbent on Mach as the operator of the Mach No. 1 Mine either to submit its 

own plan for the entire process of excavating the south bleeder shaft or to make sure its 

contractors had approved plans for those parts of the process that lay within their areas of 

responsibility. As the Secretary points out, section 77 .1900( a)(3) requires inclusion in the plan of 

"a description of the construction work and methods to be used in the construction of the ... 

shaft." Further, section 77.1900(7) makes the operator responsible for ensuring that the type of 

equipment used in the construction work be specified in the plan. I agree with the Secretary that, 

when taken together, these sections require the operator to ensure that either it or its contractors 

have an approved plan specifically describing how water will be removed from the shaft and 

specifying the equipnwnt used to do so. It is a fact that on September 7, 2007, neither Mach nor 

any of its contractors had such a plan. This means that when Mach engaged in dewatering the 

shaft, it violated section 77.1900(a). 

NEGLIGENCE 

While I conclude Mach violated section 77.1900(a) as alleged, I do not find that the 

violation was due to the company's "high negligence." Cripps's finding of high negligence was 

based solely on assumptions that I have found cannot support his finding. There is no evidence 

that Hendrick spoke with anyone from Cowin about the requirement to use permissible pumps 

15This was certainly recognized by North American, which submitted a plan to MSHA that 

covered North American's "[p]re-[e]xcavation activities," activities that took place on the surface. 

Gov't Exh. 4 at 2. 

32 FMSHRC Page 343 
below the shaft's collar. Nor is there any evidence that MSHA communicated either orally or in 

writing with any Mach official on the subject. 16 Further, although Hendrick agreed on crossexamination that he knew the 2005 plan had been submitted by Cowin and approved by MSHA, 

he was not asked whether he read the cover letter and understood that MSHA interpreted the plan 

as requiring the use of permissible pumps. 17 

Negligence is the failure to meet the standard of care required by the circumstances. 

Here, where the hazard posed to workers was minimal (see discussion of the gravity criteria, 

infra), where the standard required a careful reading to determine what was required, and where 

16To gainsay the obvious, when seeking to ensure that a particular standard is followed in a 

particular way, direct, clear communication between MSHA and an operator is preferable to 

communicating through an operator's contractor via word of mouth and letter copy. 

1 7

The closest he came being asked is the following exchange: 

Q. [Y]ou testified that you never had to submit 

a plan for to dewater a shaft; isn't that right? 

A. Yes, sir. 

Q. But ... [Cowin's approved November 

2005 plan] includes the language for 

dewatering a shaft. Didn't you submit this plan? 

A. No, Cowin did. 

Q. And when it was approved[,] weren't you copied on 

it? 

A. Uh-huh. 

Q. So, you were aware that this one was out there and 

had been submitted? 

A. Yes. 

Tr. 140. 

In other words, Hendrick knew of the plan, but he did not testify as to his understanding of what it 

required insofar as permissible pumps were concerned. I find that this exchange falls short of 

unequivocally establishing what Hendrick knew and understood with regard to the permissibility 

requirement for shaft pumps. 

32 FMSHRC Page 344 
MSHA's communication to the operator of the standard's requirements was indirect at best, I 

find Mach's failure to meet the standard of care was the result of Mach's ordinary neglect. 

OTHER CIVIL PENAL TY CRITERIA 

Neither violation was serious. The hazard posed by the installation and use of a nonpennissible pump below the collar of the south shaft was that the pump would ignite 

accumulated methane. However, and as the testimony established, the likelihood of the hazard 

coming to fruition was negligible. First, when pumping was underway, the underwater location 

of the non-permissible pump made it impossible for the pump to serve as an ignition source. Tr. 

74. For the impossible to become possible, the water level in the shaft had to drop below the 

location of the pump, methane had to seep from the coal seams through which or to which the 

shaft had been drilled, and methane had to accumulate to explosive range inside the shaft at the 

pump's location. Tr. 45-46, 64-65. The Secretary presented no evidence that such a scenario 

ever had occurred at Mach's No. 1 Mine-indeed, at any mine. She also presented no evidence 

that water ever seeped out of the shaft, and she presented no evidence regarding methane 

liberation at the No. 1 Mine and in uncompleted bleeder ventilation shafts at the mine. Cripps 

found that the violation was ''unlikely'' to cause "lost workdays or restricted duty'' to any of 

Mach's miners or to its contractors' employees, and the testimony bears him out. See Gov't Exh. 

2.] 

The hazard posed by the lack of an approved plan was that it allowed the installing and 

use of a non-permissible pump for use below the collar of the south shaft, and that the pump 

would ignite accumulated methane. Tr. 64-65. For reasons stated regarding the gravity of 

Citation No. 6666936, I find the likelihood of this hazard coming to fruition also was negligible 

and that Cripps' s finding that the violation was "unlikely'' to cause "lost workdays or restricted 

duty'' is more than supported by the record. See Gov't Exh. 3. 

Regarding other civil penalty criteria, the parties stipulated that the total proposed penalty 

would not affect Mach's ability to continue in business. Stip. 6. The agency's assessed violation 

history report (Gov't Exh. 1) indicates that in the two years prior to September 7, 2007, 57 

citations and orders were issued for alleged violations of mandatory safety standards at the mine. 

The Secretary contends this represents a "medium" history of previous violations. Mach 

contends it represents a "small" history. I find that, as counsel for the Secretary maintained, 

given the size of the mine, this is a "medium" history, one that neither increases nor decreases the 

size of the penalties that must be assessed. I further find that the mine is "small" in size. Tr. 

143. However, the agency's Office of Assessments' proposed assessment sheet (Petition, Exhibit 

A) indicates the mine's controlling entity is large. Therefore, when considering the criteria of 

size, I conclude it should have a medium effect on the amount of any penalty assessed. Finally, 

the citations were abated promptly. See Gov't Exh. 2, Gov't Exh. 3. Since Mach's good faith is 

evident, penalties otherwise assessed will not be increased. 

32 FMSHRC Page 345 
CITATION NO. 

ASSESSMENT 

6666935 

CIVIL PENALTY ASSESSMENTS 

DATE 30 C.F.R.§ PROPOSED 

9/7/07 1900(a) $550.00 

I have found that the violation occurred, that it was due to Mach's ordinary negligence, 

and that it was not serious. Given these findings and the other civil penalty discussed above, I 

conclude a civil penalty of$250.00 is appropriate. 

CITATION NO. 

ASSESSMENT 

6666936 

DATE 

9/7/07 

30 C.F.R.§ 

1914(a) 

PROPOSED 

$550.00 

I have found that the violation occurred, that is was due to Mach's ordinary negligence 

and that it was not serious.. Given these findings and the other civil penalty discussed above, I 

conclude a civil penalty of$250.00 is appropriate. 

ORDER 

Within 40 days of the date of this decision, Mach IS ORDERED to pay a total civil 

penalty of $500.00 for the violations found above. Also, within the same 40 days, the Secretary 

IS ORDERED to modify the inspector's negligence findings in the citations from "high" to 

"moderate." Upon payment of the total civil penalty and modification of the citations, this 

proceeding IS DISMISSED. 

Distribution: (Certified Mail). 

j)#/tl £~/L- David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Travis W. Gosselin, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn St., 

gth Floor, Chicago, IL 60604 

David J. Hardy, Esq., Allen Guthrie McHugh & Thomas, PLLC., 500 Lee Street East, #800, P.O. 

Box 3394, Charleston, WV 25333-3394 

/ej 

32 FMSHRC Page 346 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

72119th STREET, SUITE 443 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMES CONSTRUCTION, INC., 

Respondent 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

March 23, 2010 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2009-693-M 

A.C. No. 42-01996-179938 U82 

Mine: Copperton Concentrator 

Appearances: Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

Before: 

Michael Homer, Noah Hoagland, Suitter Axland PLLC, Salt Lake City, 

Utah, for Respondent. 

Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting' through the Mine Safety and Health Administration ("MSHA"), against Ames 

Construction, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case involves one citation issued by 

MSHA under section 104(a) of the Mine Act at the Kennecott Utah Copper mine, at the Tailings 

Facility operated by Ames Construction. The parties presented testimony and documentary 

evidence at the hearing held on January 12, 2010 in Salt Lake City, Utah. 

The parties stipulated that, at all pertinent times, Ames Construction, Inc. was a mine 

operator subject to the provisions of the Mine Act. Stip. 1-3. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Ames Construction, Inc. ("Ames") is a contractor responsible for the construction of a 

tailings dam, and the raising of the tailings dam, pipe and roadways at the Kennecott Tailings 

Facility near Magna, Utah. Stip. 4; (Tr. 261-262). On October 29, 2008, Shane Julian, an 

32 FMSHRC Page 347 
MSHA inspector and accident investigator, was called to the Kennecott Mine to investigate the 

death of William Kay, an employee of Bob Orton Trucking (''Orton"), a subcontractor at the 

facility. Subsequently, Julien issued a citation to both Ames and Orton for the identical 

violation. (Tr. 33-40, 71-71). Orton acknowledged that it is a contractor of Ames and admitted 

the fact of violation, but seeks to have the penalty reduced by means of a separate hearing. 

a. Citation No. 6328009 

As a result of the investigation Julien issued Citation No. 6328009 to Ames alleging a 

violation of30 C.F.R. § 56.9201, which requires "[e]quipment and supplies shall be loaded, 

transported, and unloaded in a manner which does not create a hazard to persons from falling or 

shifting equipment or supplies." The citation described the violation as follows: 

A fatal accident occurred on October 29, 2008, when a delivery 

truck driver was struck by a section of pipe. The victim had 

operated a truck containing a supply of pipes which was loaded, 

transported and unloaded in a manner which was hazardous to 

persons from falling supplies. The pipes had been inadequately 

secured and the driver had begun to unload nine sections of pipe 

when one 50 foot section of pipe fell from the flat bed trailer and 

struck him. 

Julien determined that it was reasonably likely that the violation would result in a fatal 

injury, that the violation was significant and substantial, that one employee was affected, and 

that the negligence of Ames was low. A civil penalty in the amount of $13,268.00 has been 

proposed for this violation. 

I. The Accident 

The facts of the accident that killed William Kay are undisputed. On October 29, 2008, 

Kay arrived at the mine around 7:30 a.m. Kay was employed as a truck di-iver for Orton. See 

Stip. 5; (Tr. 192). Kay was 81 years old, had been a truck driver for more than 30 years, and 

had a hazard card, dated September 27, 2007, from Kennecott indicating that he had received 

training from Ames. (Tr. 88); Ex. G-11. The training did not include unloading of the truck or 

the use of a forklift to safely unload a truck. (Tr. 104, 118). 

On October 29, 2008, Kay's flatbed truck was loaded with plastic pipe to be used at the 

tailings operation at the mine. WL Plastics Corporation loaded the pipes, which included nine 

separate pipes, each about 50 feet long and weighing approximately 3,000 pounds. (Tr. 65); See 

Ex. G-31 (photo). The pipes were strapped to the flatbed truck and separated by wood dunnage 

(i.e. general purpose landscape timber) to help secure the load. (Tr.129). Chocks, wedge-shaped 

devices which are designed to prevent rolling, were not used, although, according to witnesses, 

chocks should have been added onto the dunnage to help prevent rolling. (Tr. 131-132). The 

32 FMSHRC Page 348 
mine received many deliveries of pipe each month, as pipe is an integral part of the process of 

building and maintaining the tailings ponds. (Tr. 150-151, 226). · 

When Kay arrived at the mine on the day of the accident, he stopped at the office and was 

then escorted to the delivery drop-off location by a pipe crew consisting of Greg Davis, James 

Hilton and Juan Florez. (Tr. 151). Kay's flatbed truck followed the pickup with the pipe crew 

for approximately eight miles to the unloading area. (Tr.154). Florez got out of the pickup to 

stay with Kay while Davis and Hilton went to retrieve a forklift to unload the truck. (Tr. 160); 

Stip. 12, 13. Davis told Kay to "stay right here" until he returned with the forklift, but gave Kay 

no further instruction. {Tr.194-195). Normally the Orton drivers do not unload the truck on 

their own, but do participate in the unloading process by loosening the straps that secure the load 

with a long tool that they carry in the truck, while the remainder of the process is left to the 

contractor who is in charge of the site. (Tr. 90). 

While waiting in the unloading area with Kay, Florez crossed the road for a few minutes~ 

then returned to the passenger side of the flatbed truck. He observed Kay out of the truck, near 

his toolbox. Florez assumed that Kay was getting tools and preparing to unload the truck, but 

couldn't remember if he saw Kay with the bar used to loosen the straps. {Tr. 62-64, 84, 169). 

Florez was at the passenger side of the truck, looking down the road, when he heard a loud 

crack, followed by a thump. He found Kay lying on the ground next to the truck. {Tr. 174-175). 

Kay had removed the straps for the top layer of pipes, causing a pipe to roll off the truck onto 

Kay, crushing him. Photographs of the scene of the accident provide a view of the truck driven 

by Kay, the forklift used to stabilize the load when it was removed, and the pipe that had been a 

part of the load delivered by Kay. Ex. G-29, 31, 33. 

While it is Ames' responsibility to unload the pipes from the truck, it is generally the driver 

of the truck who loosens the straps prior to unloading. {Tr. 232). The driver normally has the 

tool, much like a long bar, to loosen the straps in the toolbox of the truck. (Tr.168-169). 

Inspector Julien testified that when Florez, or any person at the mine, saw what he thought might 

be some action on the part of Kay to loosen the straps without a safe support, he should have 

stopped the unloading and instructed Kay to wait. Florez agrees that it was his job to keep Kay 

safe. {Tr. 167). The Ames pipe crew normally speaks to the truck driver about the unloading 

procedure and conducts a safety meeting prior to the actual unloading of pipe. However, 

because two pipe crew members left in search of a forklift, safety procedures and instructions 

were not given prior to the time Kay began unloading. (Tr. 156, 162-165). 

Ames has a Job Safety Analysis ("JSA") in place for the training and guidance of 

employees who are unloading pipe. The JSA does not address either what should be done while 

waiting for a forklift to arrive, or the role of the driver while waiting. {Tr. 163, 198-199). 

Florez, who was relatively new to Ames, testified that his experience extended to observing two 

flatbeds unloaded on the previous day. (Tr. 159-160). Florez and the other two men on the pipe 

crew that day were familiar with the JSA. (Tr. 140 ). The JSA requires a forklift to be stationed 

in a position to secure the load prior to loosening the straps or taking any other action. Ex. G-12. 

32 FMSHRC Page 349 
ii. The Violation 

Ames was cited for failing to safely transport and unload the pipes that were on the 

flatbed truck operated by Kay. The purpose of the regulation found at 30 C.F.R § 56.9201 is to 

assure that accidents, such as the one addressed here, do not occur. The standard requires that 

"equipment and supplies shall be ... transported, and unloaded in a manner which does not 

create a hazard." The violation is straightforward; Kay was transporting the pipes for the use of 

Ames, on property that was under the control of Ames, and the pipes were to be unloaded by 

Ames employees with the limited assistance of the driver of the truck. (Tr. 56-58). Kay and the 

three Ames employees traveled to the unloading zone. Two of the pipe crew members left to 

retrieve the forklift. Kay began to loosen the straps on the load. (Tr. 210-212). As soon as he 

began to loosen the straps he was clearly "unloading" the "supplies'', and according to the 

standard, he was required to do so in such a way so as to not create a hazard. Inspector Julien 

opined that the unloading process had begun at the time of the accident. {Tr. 91). 

Ames essentially raises two arguments: ( 1) that its employees were not actively 

unloading the truck at the time of the accident and therefore it did not violate the cited standard, 

and (2) that Ames is not responsible for the actions of Orton's employee who had started to 

unload the delivery. Ames argues that escorting the truck to the "set down" location is purely 

for the purpose of making certain that contractors do not wander around the mine and suffer any 

injury or find themselves lost on the maze of roadways and, therefore, Ames has nothing to do 

with the actual transport of the materials. 

Ames further argues that since its personnel had gone to find a forklift and had not yet 

had the opportunity to discuss the unloading process with Kay, the unloading had not begun for 

the Ames' pipe team and therefore the standard cited does not apply to Ames. However, it is 

undisputed that Kay retrieved his bar and had loosened the strap, an integral first step in the 

unloading process. Florez, the Ames employee was present when Kay began to unload but did 

nothing to ascertain that Kay was aware of the JSA or the safest manner in which to unload. 

There is no argument that, at the very least, a violation of30 C.F.R. § 56.9201, occurred 

when Kay unstrapped the load of pipes without a forklift to hold them in place and therefore did 

not unload "in a manner which does not create a hazard to persons from falling or shifting 

equipment". Without the forklift, or some other means securing the pipes, at least one pipe 

rolled off the truck and onto Kay. Orton has admitted to a violation of this standard. The next 

issue then is, did Ames violate this standard; was it a part of the unloading process when Kay 

began to loosen to the straps. 

Ames first had contact with Kay when he checked in with the mine at the mine gate. The 

mine then arranged to have a pipe crew escort Kay to the loading site where the crew would then 

unload the pipe hauled by Kay. (Tr. 54-56). Instead of meeting with Kay and discussing the 

unloading process, two Ames employees left Florez with Kay and went to retrieve a forklift. 

Florez, who was with Kay the entire time and observed Kay retrieve the tools necessary to begin 

the unloading process, said little if anything to Kay. The Secretary argues that because Ames 

32 FMSHRC Page 350 
escorted Kay, communicated with him to a limited degree, and left an employee with Kay at the 

unloading site, the mine was involved in the unloading process arid therefore was required to 

submit to the requirements of the regulation cited. Ames argues that the escort is a mere 

formality accorded all persons who enter the mine, and that the unloading process would not 

begin until the forklift was retrieved, brought to the unloading location, and a safety meeting was 

held. 

I agree with Ames that it was not responsible for the loading or transportation of the load. 

The part of the mandatory standard that is violated, therefore, is the portion regarding the 

unloading of the delivery. I agree with the MSHA inspector and find that once the mine escorted 

Kay to the loading site and left an employee with him while they retrieved the forklift, the 

unloading process had begun and Ames was responsible for doing it correctly, i.e. not allowing 

the restraints to be removed from the load until the forklift was in place and the load secured so 

that it could be safely unloaded. The unloading process includes parking the truck in the correct 

location so that the mine employees, along with the driver, can begin the physical removal of the 

pipe from the truck. Once the truck is in position and a member of the pipe crew is present for 

the sole purpose of unloading, it can be said that unloading has begun. 

The Ames pipe crew and Kay together were to unload the truck and the process began 

with Kay loosening the straps while a member of the pipe crew was present. Kay had to undo a 

number of straps along the entire length of the truck from the cab to the end in order for the pipe 

to fall. During that period of time, Kay should have been observed and his progress halted by 

Florez. See (Tr. 114-115). I find that Kay was a part of the pipe crew as much as the three 

Ames' employees, and when he started to unload, the entire crew was in the unloading process 

whether they were ready to do so or not. Hence, when Kay began unloading in an unsafe 

manner, the unloading had begun and Ames violated the mandatory standard .. 

Next, Ames argues that it is not responsible for the actions of Kay as he began to unload 

the delivery. Section 104(a) of the Act, 30 U.S.C. § 814(a), requires that MSHA inspectors issue 

a citation whenever he or she believes an "operator" has violated the Act or any mandatory 

safety standard promulgated pursuant to the Act. Section 3(d) of the Act defines "operator" as 

including "any independent contractor performing services or construction at [a] mine." (30 

U.S.C. § 802(d). The case turns upon the question of whether Ames was responsible for the 

actions of its contractor, Bob Orton Trucking. For the reasons that follow, I find Ames is 

responsible for the actions of Orton. 

It is well established by Colnmission precedent that "in instances of multiple operators," 

the Secretary has ''wide enforcement discretion" and "may, in general, proceed against either an 

owner/operator, his contractor, or both." W-P Coal Co. 16 FMSHRC 1407, 1411(July1994). 

Thus, MSHA may properly hold an operator strictly liable for all violations of the Mine Act that 

occurred on the mine site ''whether committed by one of its employees or an employee of one of 

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

the Commission, quoting its own earlier precedent, stated that "the Act's scheme of liability 

[that] provides that an operator, although faultless itself, may be held liable for violative acts of 

its employees, agents and contractors." Id. (quoting Bulk Transportation Services, Inc. 13 

FMSHRC 1354, 1359-60 (Sep. 1991)). Both Ames and Orton, the employer of Kay, 

32 FMSHRC Page 351 
acknowledge that they are operators within the meaning of the Act. Orton was also cited for the 

violation and has stipulated to the facts of the violation. Orton's remaining argument is the 

amount of penalty to be assessed. 

The Commission's holding in Mingo Logan, supra, related to the citing of an operator 

for violations committed by its contractor. There, the Commission rejected the operator's 

assertion ''that the citation against it fails to promote the safety purposes of the Act." 19 

FMSHRC at 251. The Commission reasoned that this assertion was inconsistent with the 

rationale of the Ninth Circuit in Cyprus Indus. Minerals Co. v. FMSHRC, 664 F 2d. 1116, 1119-

1120 (9th Cir. 1981). The Commission quoted the following language from Cyprus, "[i]fthe 

Secretary could not cite the owner, the owner could evade responsibility for safety and health 

requirements by using independent contractors for most of the work." 19 FMSHRC at 251. 

Applying this language, the Commission reasoned that holding a production-operator liable for 

violations of their independent contractors ''provides operators with an incentive to use 

independent contractors with strong health and safety records." Id. I find that the same rationale 

applies with equal force to holding a contractor liable for the violation of its subcontractor, i.e., 

that there is an incentive to use a subcontractor with strong health and safety records. 

The Court in Cyprus also anticipated the situation herein, where the ownernessee 

contracts extraction and safety :functions to another entity and then argues that the ownernessee 

is not liable for ensuing violations. fu Cyprus case, the Court stated: 

The Secretary presents sound policy reasons for holding owners 

liable for violations committed by independent contractors. For 

one thing the owner is generally in continuous control of the 

conditions at the entire mine. The owner is more likely to 

know the federal safety and health requirements. If the Secretary 

could not cite the owner, the owner could evade responsibility for 

safety and health requirements by using independent contractors 

for most of the work. The Secretary should be able to cite either 

the independent contractor or the owner depending on the 

circumstances. Cyprus Industrial Minerals Co. v. FMSHRC, 664 

F.2d 1116, 119 (9th Cir. 1981) 

The Commission has further explained the rationale for holding ownernessee operators 

liable under the Act in Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359 (1991), 

wherein the Commission wrote: 

Thus, an owner is held liable for the acts of its contractor not 

merely because the owner has continuous control of the entire 

mine but, rather, because the Act's scheme of liability provides that 

an operator, although faultless itself, may be held liable for 

the violative acts of its employees, agents and contractors. 

Therefore, I find that Ames is responsible for the actions of its subcontractor, Orton, and 

violated the standard as cited. I find further that the Secretary, who has the burden of proving all 

32 FMSHRC Page 352 
elements of an alleged violation by a preponderance of the evidence, has met that burden. In re: 

Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), 

affd, Sec'y of Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO 

Mining Co., 15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152 (Nov. 1989). 

m. Significant and Substantial Violation 

A significant and substantial violation is described in section 104(d)(l) of the Act as a 

violation "of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." A violation is properly designated S&S 

"if, based upon the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--contributed to by the violation; (3) 

a reasonable likelihood that the hazard contributed to will result in an injury; and 

( 4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir: 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

As noted above, I find that there is a violation of the mandatory safety standard as alleged 

by the Secretary. I find, further, that the violation contributed to the hazard of the pipes falling 

off the bed of the truck and striking persons involved in the unloading. Third, the hazard 

contributed to will result in an injury as a result of enormous pipes rolling off the truck. Finally, 

given the length and weight of the pipes, the injury would certainly be serious and potentially 

fatal, as was the case here. 

The Commission and courts have observed that an experienced MSHA inspector's 

opinion that a violation is significant and substantial is entitled to substantial weight. Harlan 

Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek coal Inc. v. 

MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995). Inspector Julien qualifies, without question, as an 

experienced MSHA inspector. He described the violation as significant and substantial and 

explained that improperly removing the straps that secure a load of pipes is reasonably likely to 

32 FMSHRC Page 353 
lead to an event that causes serious injury. He further explained that there is a reasonable ·. 

likelihood of fatal injury if "a 3,000-pound pipe [falls] from any height." (Tr. 74). 

The question of whether a particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). I find that the facts of this 

violation clearly lead to a finding that it was a significant and substantial violation. 

II. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(I) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties provided in [the] Act." 30 U.S.C. § 820(I). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a}. Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to.assess 

the penalty. 29 C.F.R. § 2700.28. The Act requires, that "in assessing civil monetary penalties, 

the Commission [ ALJ] shall consider" six statutory penalty criteria: 

[1] the operator's history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the 

operator was negligent, [ 4] the effect on the operator's ability to continue in 

business, [5] the gravity of the violation, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 u.s.c. § 820(I). 

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

fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 

FMSHRC 287, 292 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the 

statutory criteria have been made, a judge's penalty assessment for a particular violation is an 

exercise of discretion, which is bounded by proper consideration of the statutory criteria and the 

deterrent purposes of the Act. 1d. at 294; Cant era Green, 22 FMSHRC 616, 620 (May 2000). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business and that the violations were abated in good 

faith. The history is normal for this size operator. I accept the Secretary's finding oflow 

negligence. Further, I find that the Secretary has established the gravity as described in the 

citation. 

32 FMSHRC Page 354 
III.ORDER 

Based on the criteria in section 110(1) of the Mine Act, 30 U.S.C. § 820(1), I agree with 

that the penalty as proposed by the Secretary is appropriate and assess a penalty of $13,268.00 

for the violation. Ames Construction Company is hereby ORDERED to pay the Secretary of 

Labor the sum of$13,268.00 within 30 days of the date of this decision. 1 

~~"\\\~ ~~tive Law Judge \: 

Distribution: 

Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway 

Suite 1600, Denver, CO 80202 

Michael W. Homer, Suitter Axland, PLLC, 8 East Broadway, Suite 200 

Salt Lake City, UT 84111 

/ate 

1 Payment should be sent to Mine Safety and Health Administration, U.S. Department of Labor~ Payment Office, 

P.O. Box 790390, St Louis, MO 63179-0390. 

32 FMSHRC Page 355 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202·2500 

303-844-5267/FAX 303-844-5268 

March 25, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2008-477 

A.C. No. 12-02258-150575 

v. 

BLACK BEAUTY COAL COMP ANY, 

Respondent 

Mine: Somerville Central 

Appearances: 

Before: 

DECISION 

Lisa Williams, Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner; 

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Black Beauty Coal 

Company, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. §·§ 815 and 820 (the "Mine Act" or "Act"). The case involves one Section 104(d)(l) 

citation and two orders issued by MSHA under section 104( d) of the Mine Act at the Somerville 

Central Mine operated by Black Beauty Coal Company. The parties presented testimony and 

documentary evidence at the hearing held in Evansville, Indiana on December 1, 2009. 

At all pertinent times, Black Beauty Coal Company operated the Somerville Central 

Mine in Gibson, Indiana. The Somerville Central Mine mined coal and/or coal byproducts 

which affected commerce. The operation is subject to the Mine Act. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Black Beauty Coal Company ("Black Beauty") operates a surface coal mine, the 

Somerville Central Mine (the "mine") near Gibson, Indiana. The mine is subject to regular 

inspections by the Secretary's Mine Safety and Health Administration ("MSHA") pursuant to 

section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Black Beauty is an 

32 FMSHRC Page 356 
operator as defined by the Act, and is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission. Stip. ,, 1-3. 

On September 11, 2007, Vernon Stumbo, an MSHA inspector, conducted a regular 

inspection at the Somerville Central Mine. He was accompanied during most of his inspection 

by Chad Wirthwein, the mine's safety director. Stumbo, along with his supervisor at the time, 

traveled to the mine to address issues involving berms and to terminate citations that had been 

previously issued for faililre to provide berms on elevated roadways. While at the mine, Stumbo 

issued one citation and one order for berm violations. He determined that both violations were 

the result of an unwarrantable failure to comply with the cited standard. Stumbo returned to the 

mine a few weeks later and issued another unwarrantable failure order for a berming violation. 

The testimony in this case addresses these three berm violations: two issued on September 11, 

2009 and one issued on September 27, 2009. 

a. Citation No. 6671134 

As a result of the inspection on September 11, 2007, Stumbo issued Citation No. 6671134 

as a 104(d)(l) citation alleging a violation of30 C.F.R. § 77.1605(k), which requires that 

"[b ]erms or guards shall be provided on the outer bank of elevated roadways." The citation 

described the violation as follows: 

The dragline bench travel road does not have a berm for a distance 

of approximately 2110 of a mile where a service truck with two 

miners traveled within 18' of the outer banks of a bench with 

approximately a 50' vertical drop to the pit floor. The mid~axle 

height of the largest vehicle traveling this road at this time is 

approximately 21 inches. In addition, four company full size pickup trucks also traveled the bench travel road. Two management 

personnel were also in the area and having traveled the road were 

fully aware that there was no berm. Management was put on 

notice of berm issues by MSHA within the past week during a 

previous visit on 09/06/2007. Gov. Ex. 4. 

Stumbo determined that it was reasonably likely that the violation would result in an 

injury that would be permanently disabling, that the violation was significant and substantial, 

that two employees were affected, and that the operator's negligence was high. A civil penalty 

in the amount of $4,329. 00 has been proposed for this violation. 

1. The Violation 

Vernon Stumbo, now retired, was an MSHA mine inspector from 1994 until 2008. (Tr. 

25). Prior to joining MSHA, Stumbo was employed in the mining industry for 15 years, working 

his way up from a general laborer to foreman, and eventually to superintendent. (Tr. 26). 

32 FMSHRC Page 357 
Since approximately 1998 or 1999, the Somerville Central Mine has utilized an 

electrically-powered dragline to remove the burden between the coal seams. (Tr. 53, 83, 162-

163). The dragline moves by means of feet, also referred to as shoes or pontoons, that lift the 

back of the dragline and move the machine in a reverse direction eight feet every 55 seconds. 

{Tr. 64-67). As the dragline moves in a reverse direction, the front section of the machinery 

housing located between the feet, also known as the tub, is dragged along the ground, creating 

six-inch-tall "speed blimps," while the feet create indentations ranging from three inches to three 

feet in depth. {Tr. 66, 93-94). The dragline requires an area approximately 150 feet wide in 

order to be moved. 1 {Tr. 84). 

On September 11, 2009, the day of Inspector Stumbo's arrival, the mine was in the process 

of moving the dragline along the bench to a new location. Stip. if 12. The berm on the bench 

had been lowered in order to provide ample room to maneuver the dragline as it moved along the 

bench. Generally, after the dragline is moved, the berms are rebuilt by a dozer. After moving 

only some of the distance to the intended destination, the dragline began experiencing electrical 

problems which required the mine to halt the move. {Tr. 72-73, 93). Upon arriving at the site in 

question, Stumbo observed a lack of berms on the bench. {Tr. 29). Stumbo and his MSHA 

colleagues parked their vehicle and began walking along the bench toward the dragline. {Tr. 29). 

They followed the tire tracks of a service truck that had been driven along the bench and parked 

near the dragline. (Tr. 29). Based on information provided by the mine, Stumbo determined that 

two persons were in the vehicle at the time it traveled along the bench to the dragline. {Tr. 33). 

Stumbo measured the tracks of the service truck to within 18 feet of the edge of the bench. {Tr. 

29-30). He estimated the drop-off from the edge to be 50 feet. {Tr. 29-30). · 

The parties do not dispute that only a remnant berm existed for the two-tenths of a mile 

from the bottom of the road to the area where the service truck was located. Terry Traylor, the 

operations i;nanager at the mine, testified that the remnant berm measured approximately 16 to 

17 inches in height. {Tr. 74). Stumbo testified that, while a remnant berm existed on the part of 

the bench that the service truck had driven on, no berms existed on other parts. {Tr. 29, 31 ). 

Stumbo explained that a dragline, or other tracked vehicle, may travel on the bench if berms are 

not present. {Tr. 44-45). However, he stated, berms are required to be at least mid-axle height 

of the largest rubber-tired vehicle that travels on the bench. (Tr. 30-31, 38). Stumbo measured 

the mid-axle height of the rubber-tired service truck, the largest tired truck on the bench at that 

time, to be 21 inches. {Tr. 30). Stumbo issued the citation under section 104(d)(l) because the 

operator had been put on high notice regarding berm issues when two citations for berm 

violations were issued the previous week. (Tr. 31 ). 

Black Beauty argues that, because the bench was used to move the dragline, it was not a 

roadway, and, therefore, not required to have a berm. Black Beauty argues that the bench was 

only being used to move the dragline. Further, the vehicles in the vicinity of the dragline were 

there to assist in the move of the dragline, and no other vehicles would have traveled on the 

1 The dragline itself disturbs an area approximately I 00 feet in width. (Tr. 84). The Mine tries to have at least 25 

feet of bench on each side of the dragline as it is moved. {Tr. 84). 

32 FMSHRC Page 358 
bench. Finally, the width of the bench, coupled with the fact that high speed travel was unlikely 

given the rough condition of the bench, rendered the bench safe for travel. Resp. Post Hearing 

Br. at 8. 

The issue of whether a bench is a roadway is driven by the particular facts of each case. 

See El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981). Here, the fact that the rubbertired service truck was traveling on the bench is, by itself, enough for me to consider it a 

roadway. While the bench in this case was approximately 200 feet wide, the tire tracks observed 

by Stumbo indicate that the service truck traveled within 18 feet of the edge. I find that the 

rough condition of the bench, while it may necessitate slower travel, increases the potential for 

mechanical failure or driver error. I agree with fuspector Stumbo and find that the bench would 

not be considered an elevated roadway if the dragline were the only piece of equipment on the 

bench; however, once rubber-tired equipment begins operating on the bench, especially within 

close proximity to the edge (i.e., 18 feet), even if it is there exclusively to provide assistance in 

the move of the dragline, the bench becomes a roadway. For those reasons I find that the bench 

at issue was an elevated roadway. 

Black Beauty argues that, even ifthe bench is found to be an elevated roadway, there were 

adequate berms present. As support for their argument they cite Traylor' s testimony that he 

observed a remnant berm that was as tall as the tire on the MSHA vehicle that was present the 

day of the inspection. It is Black Beauty's position that a berm the height of the MSHA vehicle 

tire would undoubtedly reach the mid-axle of any truck that traveled on the bench during the 

time in question. Resp. Post Hearing Br. at l 0-11. 

fu US. Steel Corp. the Commission held that "the adequacy of a berm ... under section 

77.1605{k:) is to be measured against the standard of whether the berm ... is one a reasonably 

prudent person familiar with all the facts, including those peculiar to the mining industry, would 

have constructed to provide the protection intended by the standard." 5 FMSHRC 3, 5 (Jan. 

1983). MSHA generally requires an adequate berm to be at least 50% of the height of the wheel, 

i.e., mid-axle height, of the largest vehicle to travel the roadway. I find that a reasonably prudent 

person familiar with the mining industry and the protective purposes of the standard at issue 

would have recognized that the safety standard required a berm that was at least mid-axle height 

of the service truck that traveled along the bench to the dragline. 

I credit Stumbo's testimony and find that, for approximately two-tenths of a mile on the 

bench/roadway, there were inadequate berms. While the remnant berm near the MSHA vehicle 

may have been adequate, the berm was not adequate in the area cited by fuspector Stumbo. The 

record established that there was 50 foot vertical drop-off from the edge of the bench and that the 

service truck had traveled within 18 feet of the edge of the roadway when approaching the 

dragline. 

fu an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajf'd, Sec'y 

o/Laborv. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 

32 FMSHRC Page 359 
15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152. 

The Secretary has met her burden of proving that, on the day of inspection, the mine had not 

provided adequate berms on the bench/elevated roadway that the service truck had traveled on. I 

find that the Secretary has established a violation. 

2. Significant and Substantial Violation 

A significant and substantial ("S&S") violation is described in section 104( d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[i]n order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

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

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

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC I, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th' Cir~ 1988), ajf'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria)._ 

As noted above, I find that there is a violation of the mandatory safety standard as alleged 

by the Secretary. Further, I find that the violation contributes to the danger of a vehicle veering 

off the elevated roadway and rolling, or falling, down the spoil incline. 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Stee/Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

We have explained further that the third element of the Mathies 

formula ''requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." US. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

32 FMSHRC Page 360 
accordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. US. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in consideration of the length of time that the violative condition 

existed prior to the citation and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); US. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

Stumbo testified that the closer a vehicle travels to the edge of a highwall, the more 

unstable the ground becomes. (Tr. 32). The record is clear that a service truck drove within 

close proximity, i.e., 18 feet, of the edge of the inadequately-bermed bench. If a truck, traveling 

along an inadequately-bermed elevated roadway, as was the case here, were to go over the edge 

and fall the estimated 50 feet to the surface below, it is reasonably likely that the driver and any 

passengers would sustain broken bones and injuries of a serious and potentially fatal nature. See 

e.g., Gatliff Coal Co., 13 FMSHRC 368 (Mar. 8, 1991) (AU). Berms exist to prevent exactly 

such an occurrence. There is no question that a service truck did travel along the inadequatelybermed bench. While Black Beauty argues that, given the speed the service truck was traveling, 

it is unlikely a truck would have gone over the edge, it fails to account for potential mechanical 

failure or driver error that could occur. The probability of occurrence of mechanical failure or 

driver error would seem to be much greater on a road as rough and tom up as Mr. Traylor 

described in his testimony. I find that the Secretary has satisfied the four Mathies criteria and 

established the violation as S&S. 

3. Unwarrantable Failure 

The term "unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHR.C 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts were necessary for compliance, the operator's efforts in abating the 

violative condition, whether the violation was obvious or posed a high degree of danger and the 

operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co.,23 FMSHRC 

588, 593 (June 2001). All of the relevant facts and circumstances of each case must be 

examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances 

exist. Consol, 22 FMSHRC at 353. 

32 FMSHRC Page 361 
The day the subject citation was issued, Stumbo had traveled to the Sommerville Central 

Mine to terminate citations issued for previous inadequate berm violations. The previous 

citations, issued on September 6, 2007, were issued for inadequate berms on an elevated dragline 

haul road, and inadequate berms or bumper blocks at the dumping locations on the dragline 

bench roadway. Gov. Ex. 2; Gov. Ex. 3. Stumbo testified that, based on past berm violations, 

the Sommerville Central Mine had been place on "high alert of berm issues at [the] mine" prior 

to the September 11, 2007 inspection. (Tr. 27). Relying on the citations issued on September 6, 

2007, as well as Inspedor Stumbo's testimony, I find that the mine was on notice regarding its 

berming issues. Further, I credit Stumbo's testimony and find that the condition of the bench 

was as he described it. 

While the condition may not have been overly extensive, or been present for an extended 

period of time, the total lack of ben:lls in areas along the bench was extremely obvious. The high 

degree of danger associated with inadequate berms is spelled out clearly in my S&S findings, 

supra. The mine was well aware of the condition, as evidenced by the testimony ofC.B. 

Howell, the dragline foreman, who testified that it is the practice of the mine to lower the berm 

when the dragline is being moved, as was the case here. (Tr. 91). The dragline moves so slowly, 

it would have been easy for a dozer to build berms as the dragline was moved along the bench. 

In the alternative, the mine could have simply barricaded the road, thereby making it unable to 

be traveled by rubber-tired vehicles. Instead, Black Beauty did neither and, as a result, any 

vehicle on the property could have traveled along the inadequately-bermed roadway. It is up to 

the company to keep employees off the road if it chooses to keep only a remnant berm on the 

bench while the dragline is moved. Here, the road was not guarded against entry, there were 

management trucks in the vicinity, and inadequate berms existed. The mine has a recent history 

of berm violations, and was on high notice of the need to comply. In spite of that, the lack of 

reasonable care exhibited by management has resulted in continued berm violations, and clearly 

amounts to more than ordinary negligence. 

b. Order No. 6671135 

As a result of the inspection on September 11, 2007, Stumbo issued Order No. 6671135 

as a 104( d)(l) order alleging a violation of 30 C.F.R. § 77. l 605(k), which requires that "[b ]erms 

or guards shall be provided on.the outer bank of elevated roadways." The order described the 

violation as follows: 

A new drill travel road was created from the #001 pit #6 bench up 

to the top level of the pit on the west side of the pit that has an 

inadequate berm. The travel road has no berm on the outer bank 

from the base of the elevated travel road, where there is a grade of 

approximately 30% for a distance of approximately 75 feet with a 

subtle curve at the downgrade base. From the #6 bench to the top 

level of the pit is approximately 40 vertical feet. From the #6 

bench to the pit floor is approximately 50 vertical feet. Two sets 

32 FMSHRC Page 362 
of tire tracks indicate that the road has been traveled by mobile 

equipment. Gov. Ex. 6 

Stumbo determined that it was reasonably likely that the violation would result in an 

injury that would be permanently disabling, that the violation was S&S, that one employee was 

affected, and that the operator's negligence was high. A civil penalty in the amount of$4,440.00 

has been proposed for this violation. 

1. The Violation 

Later in the day on September 11, 2007, Stumbo, while abating a separate violation, 

observed a newly-built, 30% grade, 110-120 foot road constructed from the #6 bench to the top 

of the pit to provide access for the Cat-Mounted drill rig. Stip. if 17; (Tr. 99, 105-106, 107, 108-

109, 113 ). Stumbo noted that, while there were partial berms at the bottom of the road, there 

were inadequate-to-no berms for 75 feet of the road. (Tr. 99, 107); Gov. Ex. 6. He observed 

tire tracks on the road, indicating truck travel. (Tr. 99). Stumbo estimated a drop-off of 

approximately 50 feet from the edge of the road to the bench below. (Tr. 99). After speaking 

with the safety department at the mine, Stumbo determined that the tire tracks on the road were 

from a pickup truck driven by Andrew Alano, the mine's drill foreman. (Tr. 99-100). Stumbo 

issued an order under section 104( d)(l) because the violation met the S&S criteria, discussed 

infra, and management knew, or should have known, that it was inappropriate for a manager to 

set an example by driving on an unbermed, elevated roadway. (Tr. 103). 

Chad Wirthwein, the safety manager at the mine, was accompanying Stumbo at the time 

this order was issued. (Tr. 122). He testified that a berm, which would have been sufficient to 

prevent the "overtravel" of a full-size pickup with approximately 30-inch tires, existed on the 

outer edge of the road. (Tr. 124-125, 128-129). Further, he testified, a double berm existed at 

the bottom portion of the road. (Tr. 125). Wirthwein, utilizing photographs of the road in 

question, identified what he described as the two berms. (Tr. 127); Resp. Exs. 6, 7. Wirthwein 

also confirmed that he was aware that a pickup truck had traveled the subject road. (Tr. 128). 

Andrew Alano, the drilling and blasting supervisor at the mine, as well as the individual 

who ordered the subject road to be constructed, confirmed that he drove his pickup truck on the 

road. (Tr. 138, 141). He testified that the berm on the road was sufficient for the size of the 

wheels on his pickup truck, which he estimated at 16 Yi to 17 inches at the mid-axle. (Tr. 145). 

Black Beauty argues that there were two berms on this road, and that if a vehicle traveled 

over one berm, there would be a second berm to prevent it from going over the edge. The 

Secretary, relying on Stum.ho's testimony, disputes this argument and contends that the two 

berms did not satisfy the standard. 

I credit Stumbo' s testimony and find that, while adequate berms may have existed at the 

bottom of the road, inadequate berms existed for part of the drill road. Stumbo described the 

cited area on the side of the road as "horizontal, straight out." (Tr. 147-148). In addition to 

32 FMSHRC Page 363 
Stumbo• s testimony I rely, in part, on the photographs provided by the Respondent, particularly 

Respondent's Exhibit 6. In that photograph it seems clear that little to no berm existed for at 

least part of the length of the road. Resp. Ex. 6. Stumbo's testimony regarding the picture 

confirms as much. 

I find that no berm existed for a portion of the road. While the road may have been 

intended for the exclusive use of the Cat-Mounted drill, a supervisor at the mine admittedly 

traveled the road in his rubber-tired vehicle because "it was quicker" to get to his destination. 

{Tr. 142). 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of· 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), affd, Sec'y 

of Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152. 

The Secretary has met her burden of proving that, on the day of inspection, the mine had not 

provided adequate berms on the drill road that Mr. Alano traveled on with his rubber-tired 

pickup truck. I find that the Secretary has established a violation. 

2. Significant and Substantial Violation 

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is properly designated S&S 

"if, based upon the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 {Apr. 1981). 

In accordance with the Mathies criteria set forth supra, I find that there is a violation of 

the mandatory safety standard as alleged by the Secretary. Further, I find that the violation 

contributes to tlie danger of a vehicle veering off the elevated roadway and rolling, or falling, 

down the spoil indine. Mr. Alano's admitted travel on the drill road, coupled with his lax 

explanation as to why he traveled the road, is an extremely poor example for a supervisor at the 

mine to set for the rank and file miners. While the drill road is described as a temporary road, 

there is nothing to prevent other miners from driving their vehicles on the same road. If normal 

mining operations would have ·continued, it seems the road would have been removed, but the 

example set by Mr. Alano makes it reasonably likely that other trucks would have traveled on 

the road and used it as a "short-cut" during the time that it existed. In addition, because this was 

a new road, the drivers of other vehicles would not have been familiar with the violative 

condition of the road (i.e., lack of adequate berms). If a truck traveling along an inadequatelybermed, elevated roadway experienced mechanical failure or user error and were to go over the 

edge and fall the estimated 50 feet to the surface below, it is reasonably likely that anyone in the 

vehicle would sustain injuries of serious and potentially fatal nature. I find that the Secretary has 

satisfied the four Mathies criteria and established the violation as S&S. 

3. Unwarrantable Failure 

32 FMSHRC Page 364 
The term "unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or the "serious lack ofreasonable care." Id. at 2004-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts were necessary for compliance, the operator's efforts in abating the 

violative condition, whether the violation was obvious or posed a high degree of danger and the 

operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 

588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must be 

examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances 

exist. Consol, 22 FMSHRC at 353. 

I credit Mr. Stumbo's testimony that the mine was on notice regarding its berming issues, 

and that the condition of the drill road was as he described it. The dangers associated with such 

lack of berms are spelled out clearly in my S&S findings, supra. The road was described as 

''temporary" and for the exclusive use of the drill. Black Beauty contends that the road would 

have been removed after the drill was moved. Nevertheless, the drill manager traveled the road 

in his pickup truck, setting an extremely poor example for the rank and file miners. Black 

Beauty could have easily avoided the situation by blocking the road when the drill was not 

traveling on it, yet, it did not do so. The fact that Black Beauty did not block access to the road, 

coupled with Alano's use of the road as a short cut, leads me to question whether the road was 

truly a "temporary" road. The mine has a recent history of berm violations, and was on high 

notice of the need to comply. In spite of that, management displayed a certain level of 

indifference to the requirements of the standard when one of its own foremen utilized the road as 

a shortcut to travel in his pickup truck. This set an extremely poor example for rank and file 

miners and amounts to more than ordinary negligence on the part of the mine. 

c. Order No. 6671177 

As a result of the inspection on September 27, 2007, Stumbo issued Order No. 6671177 as 

:i 104(d)(l) order alleging a violation of30 C.F.R. § 77.1605(k), which requires that "[b]erms or 

~ards shall be provided on the outer bank of elevated roadways." The citation described the 

violation as follows: 

On the 001 pit south end spoil bank, haul trucks are traveling and 

dumping in an area with an inadequate and non-existent berm. On 

the east side of the spoil bank, an inadequate berm measuring 

approximately 45" tall for a distance of approximately 38'. 

Another area has no berm for a distance of approximately 60'. 

Both areas are where three haul trucks, with a mid-axle height of 

approximately 66'', are traveling and dumping spoil. The vertical 

32 FMSHRC Page 365 
height of the spoil bank down to the dragline bench ranges from 

approximately 115' on the east side to 129' on the west side with a 

slope of approximately 40% grade. Gov. Ex. 8. 

The Secretary filed a Motion to Amend Petition and Order to Plead in the Alternative 

proposing that if the facts do not demonstrate a violation of77.1605(k) for elevated roadways, 

then they do fit a violation of30 C.F.R. § 77.1605(1) for dumping locations. The alternative 

standard requires that ''berms, bumper blocks, safety blocks, or similar means shall be provided 

to prevent overtravel and overturning at dumping locations." Black Beauty opposes this motion. 

The Federal Rules of Civil Procedure permit such an amendment and alternative pleading. Fed. 

R. Civ. P. 8(d)(2), 15(a). Generally, administrative pleadings are "liberally construed and easily 

amended, as long as adequate notice is provided and there is no prejudice to the opposing party." 

CDK Contracting Co., 23 FMSHRC 783, 784 (July 2001) (ALJ). The two safety standards are 

exceedingly similar in their requirements for protecting against overtravel of vehicles, a very 

serious concern at surface mines. If anything, section 77.1605(1) offers additional means to 

satisfy the standard (i.e., bumper blocks, safety blocks, or similar means) that section 77. l 505(k) 

does not. The evidence presented by Black Beauty is equally applicable to its defense of 

violation of either standard. Further, the motion was made prior to hearing, and provided ample 

notice for Black Beauty to prepare any additional defenses. For those reasons I find that Black 

Beauty is not prejudiced by such an amendment and alternative pleading. As a result, I grant the 

Secretary's motion to charge Black Beauty with a violation of Section 77 .1605(1), in the 

alternative. 

Inspector Stumbo determined that it was highly likely that the violation would result in a 

fatal injury, that the violation was S&S, that one employee was affected, and that the operator's 

negligence was high. The order was later changed to modify the likelihood of injury from highly 

likely to reasonably likely. A civil penalty in the amount of$7,774.00 has been proposed for 

this violation. 

1. The Violation 

On September 27, 2009, Stumbo was again at the mine to conduct an inspection. On that 

particular day, three haul trucks were being used to transport materials to the dumpsite. {Tr. 

193). In order to dump the materials, the haul trucks had to travel up a slightly inclined road 

from the shovel to the dumpsite. Once they reached the dumpsite they had to tum around, back 

up to the actual dump area, and dump their loads. David Miller, the dozer operator on the day in 

question, was in charge of "spotting" the haul truck drivers and letting them know when they 

should stop and dump their loads. (Tr. 192-193). Miller testified that, generally, after materials 

are dumped by the haul trucks, he uses the dozer to reestablish a berm or push the material down 

the spoil hill to stabilize the ground. (Tr. 193). He stated that, during the course of the dumping 

on September 27th, a supervisor called him away from his spotting duty to repair a berm in 

another area of the mine. {Tr. 194). He stated that the trucks were put on hold and were not to 

dump their loads while he was gone. {Tr. 194) 

32 FMSHRC Page 366 
As Inspector Stumbo arrived at the dumpsite he observed a haul truck preparing to dump 

its load. {Tr. 163). Stumbo stopped the haul truck before it could dump its load and asked the 

driver where his spotter was. (Tr. 163 ). He testified that the haul truck driver told him that the 

dozer operator had been spotting the haul trucks, but had to leave. (Tr. 163). Stumbo observed 

no berms in the area where the haul truck would have been dumping, as well as inadequate 

berms in the area where other haul trucks had traveled to dump materials. {Tr. 169-170). He 

measured the mid-axle height of the haul truck (i.e., the largest rubber-tired vehicle that traveled 

in the area) to be approximately 66 inches, and found the inadequate berm to measure 

approximately 45 inches tall. {Tr. 162, 164, 170). Further, he estimated the vertical height of 

the edge above the area below to be 115 feet on one side and 125 feet on the other at an 

approximate 40% gradient. {Tr. 164). At 1 :00 p.m. he issued Order No. 6671177 under 

77.1605(k) for inadequate berms and total lack of berms. (Tr. 162) 

I agree with and accept Black Beauty's argument that the dumpsite is different from the 

elevated roadway addressed by Secretary's regulation atsection 77.1605(k). For that reason, I 

refuse to affirm the Secretary's Order, as issued, and instead address only the alternative 

pleading alleging a violation of section 77.1605(1). Black Beauty admits that the cited area is 

correctly categorized as a duri:tpsite. Therefore, the only issue is whether ''berms, bumper 

blocks, safety blocks, or similar means [were] provided to prevent overtravel and overturning" in 

the cited area. 

I credit Inspector Stumbo' s testimony with regard to his description of the scene of the 

alleged violation. Stumbo testified that there were no berms in one area of the dumpsite, as well 

as inadequate berms in other areas. He measured the height of the mid-axle of the haul truck to 

be approximately 66 inches, while the inadequate berm was measured at an estimated 45 inches. 

The 21-inch difference between the mid-axle height and the top of the berm is significant and 

amounts to a violation of the standard. Black Beauty argues that, even if the berms were not 

adequate, other measures were in place that would prevent any kind of overtravel. Specifically, 

it alleges that it$ haul trucks do not dump without the assistance of spotters who let the truck 

driver know how far to back up and when to dump the truck's load. Again, I credit Inspector 

Stumbo's testimony, this time with regard to his having to stop a truck from attempting to dump 

its load without the assistance of a spotter or the presence of adequate berms. Miller, who was 

in charge of spotting, admitted that he was not present when Stumbo arrived at the dumpsite. 

(Tr. 194-195). Even ifhe had attempted to place the trucks on hold it seems that at least one 

truck was beginning to dump its lo.ad and had to be stopped by Inspector Stumbo. 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), affd, Sec'y 

of Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152. 

The Secretary has met her burden of proving that, on the day of inspection, the mine had not 

provided adequate berms or other measures to prevent overtravel at the dumping site. 

2. Significant and Substantial Violation 

32 FMSHRC Page 367 
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to tlie cause and effect of a coal or other 

mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is properly designated S&S 

"if, based upon the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In accordance with the Mathies criteria set forth supra, I find that there is a violation of 

the alternatively-pied mandatory safety standard as alleged by the Secretary. Further, I find that 

the violation contributes to the danger of a vehicle veering off the elevated dumpsite and rolling, 

or falling, down the spoil incline. If normal mining operations would have continued, it is likely 

that haul trucks would have continued to dump their loads at the dumpsite. Miller said that he 

told the trucks not to dump while he was at the shovel building another berm. However, Stumbo 

testified that he observed a truck preparing to dump a load without the assistance of a spotter or 

presence of adequate berms. I credit the testimony of Stumbo that trucks were working and 

traveling in the area where there were no means to prevent them from going over the edge. The 

vertical drop was 115 feet on one side and 129 feet on the other. If a truck were to travel over 

the edge, dropping more than 100 vertical feet, it would likely lead to the death of the driver. I 

find that the Secretary has satisfied the four Mathies criteria and established the violation as 

S&S. 

3. Unwarrantable Failure 

The term "unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts were necessary for compliance, the operator's efforts in abating the 

violative condition, whether the violation was obvious or posed a high degree of danger and the 

operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 

588, 593 (June 2001). All of the relevant facts and circumstances of each case must be 

examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances 

exist. Consol, 22 FMSHRC at 353. 

I credit Stumbo's testimony that the mine was on notice regarding its berming issues, and 

that the condition of the dumpsite was as he described it. The dangers associated with such lack 

of berms, or other means associated with preventing overtravel at a dumpsite, are spelled out 

clearly in my S&S findings, supra. 

While the length of time that the violation existed may have been rather short, I find that 

the mine places little to no importance on the issue of preventing overtravel at dumpsites. The 

truck driver that Stumbo stopped from dumping acknowledged that his spotter was not there at 

32 FMSHRC Page 368 
the time. (Tr. 163). fu spite of that knowledge, he was preparing to dump his load at the time 

Stumbo stopped him. I find this especially troubling given that less than a month earlier, on 

September 6, 2007, the mine had been issued a citation for the exact same thing (i.e., lack of 

means to prevent overtravel at the dumpsite ), and had abated that citation by providing a spotter 

at the dumpsite. Gov. Ex. 3. A pattern ofbermirig violations has begun to emerge at this mine 

which is indicative of the indifference of management to the dangers associated with overtravel 

on elevated roadways and at dumpsites. The mine knew that spotters,or other means of 

preventing overtravel, were necessary, yet it neglected to provide them, or, in the alternative, 

neglected to halt work when those preventive measures weren't present. fu either case, the mine 

has exhibited more than ordinary negligence. 

II. PENALTY 

The principles governing the authority of Commission administrative law judges to assess 

civil penalties de novo for violations of the Mine Act are well established. Section l lO(i) of the 

Mine Act delegates to the Commission and its judges "authority to assess all civil penalties 

provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the Secretary 

that it intends to challenge a penalty, the Secretary petitions the Commission to assess the 

penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties, the 

Commission [ ALJ] shall consider" six statutory penalty criteria: 

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

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

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

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

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

person charged in attempting to achieve rapid compliance after 

notification of a violation. 30 U.S.C. § 820(i). 

fu 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, 5 FMSHRC at 

292. Once findings on the statutory criteria have been made, a judge's penalty assessment for a 

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

statutory criteria and the deterrent purpose[ s] ... [of] the Act. Id. at 294; Cantera Green, 22 

FMSHRC 616, 620 (May 2000). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business. The violations were abated in good faith, and 

no evidence has been presented to the contrary. The history shows a number of violations 

associated with inadequate berms, including the violations discussed above. I find that the 

Secretary has established that the negligence is high for the three violations and that the gravity 

determined in the citation and orders is accurate. The total proposed penalty is $16,543.00 

32 FMSHRC Page 369 
ID.ORDER 

Based on the criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a 

penalty of $16,543 .00 for these violation. Black Beauty Coal Company is ORDERED TO PAY 

the Secretary of Labor the sum of $16,543.00 within 30 days of the date of this decision. 

Distribution: 

Lisa Williams, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 

Suite 844, Chicago, IL 60604 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, 

Pittsburgh, PA 15222 

/ate 

32 FMSHRC Page 370 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001-2021 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

V. 

ORCHARD COAL COMP ANY, 

Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

V. 

S & M COAL COMP ANY, 

Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

ALFRED BROWN COAL COMP ANY, 

. Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

B & B COAL COMP ANY, 

Respondent. 

April I, 2010 

DECISION 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-339-E 

Citation No. 7000116 

Primrose Slope Mine 

Mine ID 36-08346 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-340-E 

Citation No. 7000440 

Buck Mountain Slope Mine 

Mine ID: 36-02022 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-342-E 

Citation No. 7000117 

7 Ft. Slope Mine 

Mine ID: 36-08893 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-343-E 

Citation No. 7000115 

Rock Ridge No. 1 Slope Mine 

Mine ID: 36-7741 

Appearances: Stephen D. Turow, Esq., Mary Forrest-Doyle, Esq., Matthew Babington, 

Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, on 

behalf of the Secretary of Labor. 

32 FMSHRC Page 371 
Before: 

Alfred J. Brown, Foreman, Alfred Brown Coal Company, Hegins, 

Pennsylvania; Darryl Koperna, Superintendent, S & M Coal Company, 

Tower City, Pennyslvania,pro se, on behalf of the Respondents. 

Judge Paez 

These consolidated cases are before me on referrals of Emergency Response Plan 

disputes by the Secretary of Labor ("Secretary'') pursuant to Commission Rule 24(a), 29 C.F.R. 

§ 2700.24(a), and section 316(b)(2)(G) of the Federal Mine Safety and Health Act of 1977 (the 

"Mine Act" or "Act"), as amended by the Mine Improvement and New Emergency Response Act 

of2006 ("MINER Act"), 30 U.S.C. § 876(b)(2)(G). At issue are four section 104(a) citations 

issued on March 1, 2010, charging each of the Respondents - Orchard Coal Company 

("Orchard"), S & M Coal Company ("S&M Coal"), Alfred Brown Coal Company ("Alfred 

Brown Coal"), and B & B Coal Company ("B&B") - for failing to comply with section 

316(b )(2)(F)(ii) of the Act, which requires operators to provide for post-accident communication 

between underground and surface personnel via a wireless two-way medium, and an electronic 

tracking system, in their Emergency Response Plans. 

A hearing was held in Pottsville, Pennsylvania, on March 17, 2010, pursuant to · 

Commission Rule 24(e), 29 C.F.R. § 2700.24(e), and the parties were permitted to submit all 

relevant material regarding the disputes.1 At the hearing, the parties stipulated that: (1) the 

citations at issue were served on the date listed in the citations and were properly served by the 

Secretary of Labor; and (2) the Commission Judge has jurisdiction over these proceedings with 

the mine operators subject to the Act. (Tr. 8-9.) At the conclusion of the hearing, the parties 

filed post-hearing briefs. 

The general issues before me are whether the Respondents were properly cited under 

sections 104(a) and 316(b)(2)(G)(ii) of the Act for failing to submit a revised plan for their 

respective mines that can be approved under section 316(b)(2)(C) of the Act. For the reasons set 

forth below, the Citations are affirmed. 

The Statutory and Reeulatory Backdrop 

Section 2 of the MINER Act, which became effective on June 15, 2006, amends section 

1 All four of the operators belong to the fudependent Miners and Associates, a group of 

anthracite operators, and have raised substantially identical issues with regard to updating their 

Emergency Response Plans. By order dated March 10, 2010, I consolidated these cases, set a 

hearing date, and ordered the parties to submit prehearing reports. Two of the operators, B&B 

and Orchard, did not submit a prehearing report but stated at the hearing that they would be 

represented by Alfred Brown of Alfred Brown Coal and Darryl Koperna of S&M Coal, who 

would question witnesses, elicit testimony, and/or submit documentation on behalf of all the 

operators. (Tr. 7.) However, S&M Coal alone raised the separate issue of financial inability to 

pay for new communication and tracking equipment. (Tr. 16-17.) 

32 FMSHRC Page 372 
316 of the Mine Act, 30 U.S.C. § 876, to require underground coal mine operators to develop and 

submit for MSHA approval and periodic review an emergency response and preparedness plan 

("Emergency Response Plan" or "ERP"). 30 U.S.C. § 876(b )(2)(A). The basic goals of an ERP 

are twofold: to provide for the evacuation of miners who are endangered by a mine emergency; 

and to assure the survival of miners who are trapped underground and are not able to evacuate. 

30 U.S.C. § 876(b )(2)(B)(i)-(ii). The MINER Act specifies that operators develop and submit 

ERPs to the Secretary for approval within 60 days of June 15, 2006, the date of enactment. 

30 U.S.C. § 876(b )(2)(A), (C). Thus, mine operators were required to submit ERPs to MSHA by 

August 14, 2006. 

Within three years of enactment of the MINER Act, each underground coal mine operator 

is required to develop, adopt, and submit an ERP that includes, inter alia, provisions for the use 

of wireless, two-way communication and electronic tracking ("C&T") systems following a mine 

accident. 30 U.S.C. § 876(b)(2)(E), (F)(ii).2 If such a C&T system "cannot be adopted," the 

operator must "set forth within the plan the reasons" why it cannot adopt such a system and 

identify an "alternative means of compliance." 30 U.S.C. § 876(b)(2)(F)(ii). Any alternative 

system "shall approximate, as closely as possible," the level of safety and effectiveness provided 

by an MSHA approved C&T system. Id. Except when a mine operator could satisfy this 

exception, MSHA could not approve a mine operator's ERP after June 15, 2009 unless the ERP 

provided upgraded C&T systems for use in the mine. Indeed, the legislative history of this 

section indicates that "[t]he intent ... is for operators to use the most advanced technology 

available that works best in their particular mine, to provide a means for the [ERP] to be 

continuously adapted to changes in the mine or in the commercial technical equipment market, 

and to avoid the 'behave only to the letter of the standard' syndrome that stifles innovation and 

delays the implementation of new methods or equipment." S. Rep. No. 109-365, at 13 (2006). 

Despite this congressional mandate, there are currently no totally wireless communication 

2 Section 316(b )(2)(F)(ii) of the Mine Act, which is primarily at issue here, states as 

follows: 

(ii) POST ACCIDENT COMMUNICATIONS.-Not later than 3 years after the 

date of enactment of the Mine Improvement and New Emergency Response Act 

of 2006, a plan shall, to be approved, provide for post accident communication 

between underground and surface personnel via a wireless two-way medium, and 

provide for an electronic tracking system permitting surface personnel to 

determine the location of any persons trapped underground, or set forth within the 

plan the reasons such provisions can not be adopted. Where such plan sets forth 

the reasons such provisions can not be adopted, the plan shall also set forth the 

operator's alternative means of compliance. Such alternative shall approximate, as 

closely as possible, the degree of functional utility and safety protection provided 

by the wireless two-way medium and tracking system referred to in this subpart. 

30 U.S.C. § 876(b)(2)(F)(ii). 

32 FMSHRC Page 373 
devices commercially available and approved by MSHA that can be used in underground mines. 

Rather, as the Secretary acknowledges in MSHA Program Policy Letter ("PPL") No. P09-V-Ol 

(January 16, 2009), alternative technology exists in the form of"partially-wireless" systems that 

use ''untethered" two-way communication devices to transmit signals to a node that is hard-wired 

to surface equipment. (Ex. G-6 at l, 3.) Because fully wireless C&T systems were not yet 

technologically feasible, MSHA sought to offer guidance to operators on acceptable alternatives · 

to fully wireless systems in formulating the required revisions to their ERPs. MSHA PPL No. 

P09-V-O 1 states, with respect to communications systems: 

General Considerations - An alternative to a fully wireless communications 

system used to meet the requirements of the MINER Act for post-accident 

communication either can be a system used for day-to-day operations or a stored 

system used in the event of an accident. Examples of currently available 

technologies that may be capable of best approximating a fully wireless 

communications system include, but are not limited to, leaky feeder, mesh, Wi-Fi 

and medium frequency systems. Any alternative system generally should: 

a. Have an untethered device that miners can use to communicate with the 

surface. The untethered device should be readily accessible to each group of 

miners working or traveling together and to any individual miner working or 

traveling alone. 

b. Provide communication in the form of two-way voice and/or two-way text 

messages. If used, pre-programmed text messages should be capable of providing 

information to the surface necessary to determine the status of miners and the 

conditions in the mine, as well as providing the necessary emergency response 

information to miners. 

c. Provide an audible, visual, and/or vibrating alarm that is activated by an 

inco,ming signal on each untethered device. The alarm should be distinguishable 

from the surrounding environment. 

d. Be capable of sending an emergency message to each of the untethered 

devices. 

e. Be installed to prevent interference with blasting circuits and other electrical 

systems. 

(Ex. G-6 at 3.) Thus, this case involves whether the Respondents provided alternatives to a fully 

wireless C&T system, and whether such alternatives approximate, as closely as possible, the 

degree of functional utility and safety protection provided by a wireless two-way medium 

communication and electronic tracking system. 

Findint:s of Fact and Procedural Backi:round 

The Respondents all operate underground anthracite coal mines. Anthracite coal "is hard 

and black, and has a semimetallic luster and semiconchoidal fracture [i.e., fractures result in 

smoothly curved surfaces]." Dictionary of Mining, Mineral, and Related Terms 21, 117 (2d ed. 

1996). Anthracite has a very high carbon content, the highest of any variety of coal, and "ignites 

32 FMSHRC Page 374 
with difficulty and bums with a short blue flame, without smoke.~' Id. at 21, 52, 311. Anthracite 

mining in the United States is primarily confined to eastern Pennsylvania. Id. at 21. According 

to MSHA's website, in 1917, anthracite coal production peaked at over 100 million tons.3 

Underground anthracite mining declined throughout the 20th century, such that by 2008, there 

were only 13 such mines operating in Pennsylvania employing 91 miners, and they produced 

approximately 240,000 short tons.4 Underground anthracite mining is far less mechanized than 

underground bituminous coal mining. Anthracite is mined underground using "conventional 

methods" - the coal is blasted from the surrounding rock at a working face using explosives. 

Once blasting has loosened the coal, it is loaded onto carts by hand using picks and shovels or by 

gravity loading. The coal is then transported out ofthe mine. Blasting occurs through the use of 

explosives detonated by electric detonators or blasting circuits. (Tr. 44-46.) 

The evidence introduced at the hearing establishes that in March 2009, MSHA District 

Manager John A. Kuzar, along with several other MSHA representatives, met with members of 

the fudependent Miners and Associates ("IMA"), an association of anthracite miners of which the 

Respondents are members. They discussed the IMA's concern about the potential for radio 

:frequency ("RF") devices, which are associated with upgraded C&T systems, to cause 

unintended, premature detonation of blasting circuits used in the members' mines. (Exs. G-1-G4; Tr. 123-24.) Kuzar subsequently agreed to postpone the deadline for the operators to provide 

C&T system purchase orders from June 15, 2009 until a time after the date on which MSHA 

tested the RF devices in one of the IMA-member mines. (Ex. G-5.) Nevertheless, Kuzar still 

required each of the anthracite mine operators to submit revised ERPs identifying the upgraded 

C&T provisions by June 15, 2009. (Id.) The IMA had expressed interest in two MSHAapproved C&T systems for possible installation in anthracite mines: the L-3 Communications' 

"Wireless Mesh Communication and Tracking System" and the Matrix Design Group, LLC's, 

"RFID Miner Tracking and Text Messaging System." (Ex. G-lH at 2; Tr. 203.) 

On or around June 15, 2009, all but one of the Respondents submitted statements to 

MSHA indicating that, if the Respondents were to choose an upgraded C&T system, the Matrix 

METS 2.1 system would be the system of choice.5 (Exs. G-2A, G-3A, G-4A.) None of the 

Respondents submitted revised their ERPs at that time. (Exs. G-lA, G-2A, G-3A, G-4A.) On 

July 2, 2009, Kuzar notified the Respondents byletter that the June statements did not qualify as 

revised and compliant ERPs and that they must submit compliant ERPs by July 16, 2009. (Bxs. 

G-lB, G-2B, G-3B, G-4B.) None of the Respondents filed revised ERPs by the July 16, 2009 

deadline. (Exs. G-1, G-2, G-3, G-4; see Tr. 124, 128.) 

3 www .msha.gov/District/Dist_ 01/History/history.htm. 

4 www.msha.gov/ACCINJ/ANTHRACLHTM. 

5 Alfred Brown Coal's statement merely asserted that "[a]ny system that is guaranteed in 

writing and proved safe through extensive testing not to endanger my employees with radio 

frequency while using electronic detonators will be acceptable." (Ex. G-lA.) 

32 FMSHRC Page 375 
On July.21, 2009, MSHA tested RF devices of the L-3 Communications ACCOLADE 

("L-3") system at Alfred Brown Coal's 7 Ft. Slope Mine.6 (Ex. G-10; Tr. 203.) MSHA's 

investigative report, which summarized the test results, concluded that the L-3 system could be 

safely used in underground anthracite mines. (Ex. G-10.) Accordingly, on August 28, 2009, 

Kuzar contacted the Respondents by letter, informing them of the results ofMSHA's testing and 

attaching a copy of the investigative report. (Exs. G-lC, G-2C, G-3C, G-4C.) Kuzar further 

notified the Respondents that the new deadline for submitting their ERPs would be September 

11, 2009. (Id.) 

On September 4, 2009, Kuzar again contacted the Respondents by letter, this time to 

provide further guidance on how to develop a revised and compliant ERP. (Bxs. G-lD, G-2D, 

G-3D, G-4D.) This letter attached copies ofMSHA PPL P09-V-01 as well as an "ERP 

Checklist.'0 (Bxs. G-6, G-9.) 

On or around September 11, 2009, each of the Respondents submitted an ERP. (Exs. GlE, G-2E, G-3E, G-4E.) None of the ERPs included upgraded C&T provisions. Instead, the 

ERPs included reasons why the Respondents believed they could not adopt upgraded C&T 

systems, and provided for alternative C&T systems. The alternative C&T systems consisted of 

manual, magnetic board tracking systems and redundant, hard-wired communications systems 

that were the same or very similar to the systems each of the operators had originally installed to 

comply with the Mine Act's ERP provisions for C&T systems before June 15, 2009. (Tr. 75-77.) 

The Respondents' main reasons for not including upgraded C&T systems in their revised, postJune 15, 2009 ERPs were that: (1) no fully wireless system existed; (2) the RF devices used in 

upgraded C&T systems potentially could cause unintended, premature detonation of explosives; 

and (3) upgraded C&T systems had not been proven effective for use in the Respondents' 

underground anthracite mines. (Exs. G-lE, G-2E, G-3E, G-4E.) 

On October 5, 2009, Kuzar contacted the Respondents by letter, detailing the deficiencies 

in each of the Respondents' September 2009 ERPs. (Exs. G-lF, G-2F, G-3F, G-4F.) Kuzar 

responded directly to each of the Respondents' listed reasons for not providing upgraded C&T 

systems by explaining that: (1) while no fully wireless system existed, virtually wireless systems 

did exist and those systems would provide for approximately the same level of safety and 

effectiveness as totally wireless systems; (2) MSHA had investigated the potential for 

unintended, premature detonation caused by RF devices used in one of the upgraded C&T 

systems (i.e., the L-3 system) and found that upgraded C&T systems could be used safely in 

conjunction with electric detonators; and (3) based on MSHA's understanding of anthracite 

6 The L-3 system is another upgraded C&T system that IMA members considered for use 

in their underground anthracite mines. {Tr. 105.) 

7 MSHA also posted two "Q&A's" that discussed the PPL on its website. (Exs. G-7, G8.) Yet no date is indicated as to when the second Q&A was posted and MSHA provided no 

testimony as to the date it was posted. (Ex. G-8; Tr. 108-09.) 

32 FMSHRC Page 376 
mining, the upgraded C&T systems could be used effectively in such mines. 8 (Id.) However, 

Kuzar explained that ifthe Respondents still felt there were reasons why the upgraded C&T 

systems could not be installed in their mines, they should provide more detailed explanations of 

their reasons for his consideration. Kuzar established a new deadline for ERP submission of 

October 28, 2009. (Id.) 

On or around October 28, 2009, B&B, Orchard, and S&M Coal each submitted ERPs 

which were exact copies of the ERPS they had submitted in September 2009. (Exs. G-2G, G-3G, 

G-4G.) Alfred Brown Coal submitted a letter, rather than an ERP, reiterating its earlier concerns 

and explaining that it wanted to attend a meeting with the Institute of the Makers of Explosives 

("IME") on October 29~ 2009 prior to submitting a revised ERP.9 (Ex. G-lG.) 

On January 12, 2010, Kuzar contacted the Respondents by letter, explaining that their 

October ERP submissions did not qualify as revised and compliant ERPs. 10 (Exs. G-lH, G-2H, 

G-3H, G-4H.) To B&B, Orchard, and S&M Coal, Kuzar stated that the October copies of their 

September ERP submissions still were inadequate and that the same deficiencies existed. (Exs. 

G-2H, G-3H, G-4H.) To Alfred Brown Coal, Kuzar explained that the operator had failed to 

submit a revised and compliant ERP following the October 30, 2009 IME meeting. (Ex. G-lH.) 

Kuzar also conveyed his understanding that information provided at the IME meeting 

demonstrated that upgraded C&T systems could be safely used in underground anthracite mines. 

For three of the operators, Kuzar set a new deadline for ERP submissions of January 22, 2010. 

(Exs. G-lH, G-2H, G-3H.) Because S&M Coal also indicated in its October 2009 submission 

that installation of an upgraded C&T system ''ultimately would force [it] into closure" (Ex. G-4G 

8 Thomas J. Garcia, MSHA District 1 's representative at the hearing, testified about the 

manner in which an upgraded C&T system would be installed and used in a typical, underground 

anthracite mine. {Tr. 80-90.) Garcia supported his position by explaining how other 

underground anthracite operators (and IMA members) had planned to install upgraded C&T 

systems as provided for in their compliant and revised ERPs, all of which had been approved by 

District 1 at the time of the hearing. {Tr. 96-99, 117-18.) 

9 At the October 29 meeting, the IME provided participants with Safety Library 

Publication (SLP) 20, "Safety Guide for the Prevention of Radio Frequency Radiation Hazards in 

the USE of Commercial Electric Detonators (Blasting Caps)" and its recent addendum. (Exs. 

G-1-G-4, G-20, G-21.) SLP-20 states that, when proper and established precautions are taken, 

the risk of unintended, premature detonation of blasting circuits by radiofrequency devices is 

"practically nil." (Ex. G-20 at 2.) 

10 In the January 12, 2010 letter, Kuzar also described the ALJ's decision in RS&W Coal 

Company, an ERP dispute proceeding involving an underground anthracite operator (and fellow 

lMA member) who had failed to submit a revised ERP with upgraded C&T provisions. 31 

FMSHRC 1440 (Dec. 9, 2009) (ALJ). Kuzar attached a copy of this decision to his letter. (Exs. 

G-lH, G-2H, G-3H, G-4H.) 

32 FMSHRC Page 377 
at 3), Kuzar provided S&M Coal an additional week to submit a revised ERP and/or to provide 

documentation to demonstrate financial infeasibility. (Ex. G-4H.) 

On or around January 22, 2010, Alfred Brown Coal, B&B, and Orchard submitted ERPs. 

(Exs. G-II, G-21, G-31.) Once again, none of the ERPs included upgraded C&T provisions. (Id.) 

Instead, the ERPs again listed reasons why the operators believed the upgraded C&T systems 

could not be installed, and provided for alternative C&T systems that were the same or similar to 

the ones the operators; had used in their original ERPs. (Id.) Meanwhile, S&M Coal submitted a 

request for an extension of time to provide support for its financial infeasibility argument. (Ex. 

G-41.) On February 12, 2010, S&M Coal provided copies of several financial documents to 

MSHA for review. (Ex. G-4; Tr. 284.) On February 17, 2010, Kuzar contacted S&M Coal by 

letter, informing it that MSHA had refused to exempt it from submitting a revised ERP with 

upgraded C&T systems for reasons of"financial hardship," and establishing a new ERP 

submission deadline of February 22, 2010. (Ex. G-4J.) S&M Coal declined to revise and resubmit its existing ERP. (Ex. G-4.) 

On March 1, 2010, MSHA District 1 authorized representative Gregory Mehalchick, 

acting under Kuzar's direction, issued citations to each of the Respondents for failing to submit 

revised and compliant ERPs. (Tr. 137-38; Exs. G-U, G-2J, G-3J, G-4K.) These proceedings 

ensued soon thereafter. 

General Le2al Principles - Standard of Review 

When the Secretary and an operator are unable to agree on a particular ERP provision, the 

Mine Act directs the Secretary to "issue a citation which shall be immediately referred to a 

Commission Administrative Law Judge" for expedited adjudication. 30 U.S.C. § 876(b)(2)(G). 

In Emerald Coal Resources, the Commission set forth the principles under which any such 

referral would be decided: 

One of the cornerstone principles with regard to plan formulation under 

the Mine Act is that MSHA and the affected operator must negotiate in good faith 

for a reasonable period concerning a disputed plan provision. Carbon County 

Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985). The Commission has noted, 

"Two key elements of good faith consultation are giving notice of a party's 

position and adequate discussion of disputed provisions." C. W. Mining Co., 18 

FMSHRC 1740, 1747 (Oct. 1996). 

While the contents of a plan are based on consultations between the 

Secretary and the operators, the Commission has recognized that "the Secretary is 

[not] in the same position as a private party conducting arm's length negotiations 

in a free market." Id. at 1746. As one court has noted, "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., 

32 FMSHRC Page 378 
Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 

(1978). Ultimately, the plan approval process involves an element of judgment on 

the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692(May1996) 

("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." 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). 

Emerald Coal Res., 29 FMSHRC 956, 965-66 (Dec. 2007); see also Twentymile Coal Co., 

30 FMSHRC 736, 747-48 (Aug. 2008) (quoting same language for review of ERP disputes). 

The Commission went on to hold that a judge hearing an ERP dispute must decide 

whether the record shows that the Secretary's refusal to approve a proposed ERP provision was 

arbitrary and capricious, stating: 

The standard involves a review of the record to determine whether the Secretary 

properly exercised her discretion and judgment in the plan approval process. fu 

this regard, the Commission's decision in Monterey Coal is instructive. fu 

affirming a citation for failing to supply data relating to impoundment pond 

construction, the Commission applied the "arbitrary and capricious" standard in 

reviewing MSHA' s withdrawal of its approval of an impoundment plan: 

We cannot conclude that MSHA's use of the Table [of 

recommended minimum design storm criteria] or its act of 

withdrawing the plan approval was arbitrary and capricious .... 

[P]rior to issuance of the citation Monterey was given unequivocal 

notice of and a reasonable opportunity to comply with MSHA's 

interpretation and use of the Table. fu sum, we find the course of 

action taken by MSHA to have been a reasonable approach, and 

not arbitrary or capricious. 

Monterey Coal, 5 FMSHRC at 1019 (citation and footnote omitted); accord 

Peabody II, 18 FMSHRC at 692 n.6 (in reviewing the Secretary's refusal to 

approve a ventilation plan provision, Commission noted that the plan approval 

process involves an element of judgment on the part of the Secretary that is 

reviewed under an arbitrary and capricious standard). This standard appropriately 

respects the Secretary's judgment while allowing review for abuse of discretion, 

errors oflaw, and review of the record under the substantial evidence test. See 

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). 

32 FMSHRC Page 379 
Emerald Coal, 29 FMSHRC at 966 (footnote omitted); Tweniymile Coal Co., 30 FMSHRC at 

748. 

Conclusions of Law - Further Factual Findines 

This case involves the safety of using mandated C&T devices that emit RF energy in 

anthracite mines where blasting is integral to mining coal. These cases turn on whether the 

Respondents have met the C&T alternative requirements under section 316(b)(2)(F)(ii). 

A. Good Faith Negotiations 

The record reflects, and the parties acknowledge, that ERP negotiations regarding the 

installation of updated C&T systems began in March 2009 when MSHA held a meeting with the 

IMA, of which all four Respondents are members. Because no truly wireless communication 

systems existed, MSHA attempted to rectify that issue by providing guidance through MSHA 

PPL P09-V-Ol, which references partially-wireless C&T devices that emit RF energy. The 

Respondents' fears over the risk of unintentional detonation if new C&T devices emitting RF 

energy were to be introduced in the vicinity of their anthracite blasting operations led MSHA to 

extend ERP deadlines and agree to testing of C&T systems in an-anthracite mine. MSHA 

subsequently gave extensions for ERP submissions, completed one test of a C&T system at the 

7 Ft. Slope Mine of Alfred Brown Coal, and disseminated those test results to the Respondents. 

The record is replete with correspondence between the mine operators and the district manager 

providing information and stating positions on ERPs. (Exs. G-1-G-4.) 

However, it is clear the ERP negotiations were at an impasse by March 1, 2010 after 

nearly a year of negotiating, especially given that none of the operators had changed their 

positions or modified their ERPs as requested by MSHA. (E.g., Bxs. G-lE, G-1 G, G-11, G-2E, 

G-2G, G-21, G-3E, G-3G, G-31, G-4E, G-4G.) I find that both sides had given notice of their 

positions and had adequate negotiations. See Emerald Coal, 29 FMSHRC at 965 ("One of the 

cornerstone prillciples with regard to plan formulation under the Mine Act is that MSHA and the 

affected operator inust negotiate in good faith for a reasonable period concerning a disputed plan 

provision." (citing Carbon County Coal, 7 FMSHRC at 1371)). Thus, I conclude that the parties 

had met their duty to negotiate in good faith and had done so over a reasonable period of time. 

B. Arbitrary and Capricious Analysis 

Absent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the 

inclusion of specific provisions as a condition for approval of the Respondents' ERPs. Thus, the 

Secretary must establish a rational basis for her rejection of the Respondents' proposed 

alternatives to commercially-available C&T systems approved by MSHA for use in anthracite 

mines. 

1. Operators' Arguments 

The operators mainly argue that the new ERP requirements for upgraded C&T systems 

have not been proven I 00% safe for use in anthracite mines. Indeed, they note their anthracite 

32 FMSHRC Page 380 
region is unique and anthracite mining is not analogous to other fypes of coal mining, such as at 

bituminous mines, which use highly mechanized operations including longwall mining to extract 

coal. Rather, all of the underground anthracite mine operators in these proceedings rely on 

conventional mining techniques. Moreover, the Respondents are all small operators, employing 

a handful of miners at their respective mines, which in most cases include fathers, sons, and other 

family members of the principals. Consequently, anything that could remotely cause a blasting 

cap to ignite prematurely worries these operators, as it could put themselves as well as others at 

grave risk of possible injury or death. 

As Judge Zielinski noted in his ERP decision involving another anthracite coal operator, 

concerns about the hazards of introducing RF sources into an anthracite mine's blasting 

environment were, and are, understandable and well-founded. RS&WCoal Co., 31 FMSHRC 

1440, 1454 (Dec. 2009) (ALJ). These concerns were understandably heightened by the manner 

in which some of the technical information is presented. Statements in authoritative technical 

literature to the effect that the "probability of an accidental firing from RF energy is practically 

nil," or "extremely remote," could easily be seen as less than reassuring to a miner who bas to 

connect detonator leg wires in close proximity to high explosives. Id. (quoting the IME's Safety 

Library Publication No. 20, Safety Guide for the Prevention of Radio Frequency Radiation 

Hazards in the Use of Commercial Electric Detonators (Blasting Caps) (July 2001) ("SLP-20'')). 

Brown put it best during his cross-examination of the Secretary's expert, Chad Huntley, when he 

noted that papers he received on C&T systems state they are "safe, safe, safe, but at the end of 

every chapter there is a disclaimer." (Tr. 242.) Indeed, even Huntley testified that "nothing is a 

hundred percent safe." (Tr. 240.) For Respondents, not being able to receive 100 percent 

assurances from C&T system manufacturers does not provide them with the level of comfort 

expected when putting themselves or family members in potentially dangerous situations. 

Nevertheless, facts and science, not visceral fears, drive the analysis of these 

congressionally ... mandated C&T systems, and the Secretary presented much technical 

documentation and testimony at the hearing, as discussed below. 

2. Technical Discussion 

Fundamentally, these cases are about electricity and, more specifically, the amounts of 

electrical energy emitted by electronic devices used to communicate wirelessly in underground 

mines. The issue before me is whether the MSHA-approved electronic devices emit electrical 

energy at levels that could unintentionally initiate the detonation of blasting caps used to ignite 

larger explosions within the mines. It has long been recognized that devices emitting radio 

frequency ("RF'') energy, such as wireless communications systems, can pose a hazard when 

used in proximity to electric blasting circuits. The wires of a blasting circuit function like 

antennae, and RF energy induces an electric current in such circuits, which could result in an 

unintended detonation. To understand whether such a hazard exists, it is necessary to be able to 

describe electrical energy, and the transmission of such energy in the form of RF energy. 

A useful analogy for an electrical system is that it is akin to the water supply pipes in an 

average home. Three variables describe the flow of the water through the pipes: (I) the rate at 

32 FMSHRC Page 381 
which the water flows through the pipes, (2) the water pressure, and (3) the diameter of the pipes 

and how much resistance they create on the flow of water. Electrical current is described using 

similar variables. The electrical current itself, that is, the rate at which the electricity is flowing 

through the system, is measured in amperes, the symbol for which is I. The "pressure" of the 

electrical current is measured in volts, the symbol for which is V. Finally, resistance in an 

electrical system is measured in ohms, the symbol for which is r. A simple equation describes 

the relationship between these three variables: 

I=V/r 

Current is equal to voltage divided by resistance. Current increases as voltage increases or as 

resistance decreases. Referring back to the water pipe analogy, if one were to increase the 

pressure of the water in the pipes in their home, or were to expand the diameter of the pipes and 

thus decrease the resistance, then the flow (or current) of water coming into the house would 

increase. 

A fourth variable used to describe electrical energy is its power, which is measured in 

watts, the symbol for which is W. Another simple equation describes how to determine the 

power of an electrical system: 

W=VI 

Wattage is equal to voltage multiplied by current. In these proceedings, various permutations of 

these two formulae have been used, including voltage equals resistance multiplied by current 

(V = rl) and wattage equals resistance multiplied by current squared (W = rl2}. 

At the hearing, the Secretary presented evidence on two C&T systems, the Matrix METS 

2.1 system and the L-3 system. (Exs. G-10, G-30, G-32.) The Secretary states in her brief that 

"if the [R]espondents were to choose an upgraded C&T system, the Matrix METS 2.1 system 

would be the system of choice." (Sec'y Posthearing Br. at 3.) This system has three components 

that are used underground: a two-way text communicator, a wireless tag used to track miners, 

and a network of communication nodes that are either wireless or connected to the surface by a 

hard wire. (Tr. 81-86, 102-04, 186-87; Ex. G-16.) 

All three of these components transmit and/or receive RF energy, which can be measured 

in watts. The Matrix text communicator transmits 0.015 watt (15 milliwatts, or 15mW), the 

tracking tag transmits 0.006 watt (6mW), and each node transmits 0.010 watt (lOmW). {Tr. 

186-87.) RF energy is emitted as waves at a specific operating frequency measured in hertz (the 

symbol for which is Hz}, or cycles per second - which are commonly referred to in higher 

multiples such as megahertz (106 Hz, expressed as MHz) and gigahertz (109 Hz, expressed as 

GHz). The Matrix system operates at a frequency of 430 MHz. (Tr. 193-94.) An important 

characteristic of RF energy, however, is that its power diminishes dramatically as it travels 

through the atmosphere. {Tr. 191-92.) The power level of an RF signal diminishes one hundred 

times after it travels one wavelength, which is known as "free space loss." (Tr. 192.) In other 

words, at a distance of one wavelength from an RF antenna the available power in the RF field is 

32 FMSHRC Page 382 
only one one-hundredth (0.01) of the power at the transmitting antenna. At a distance of two 

wavelengths the strength drops to one four-hundredth (0.0025) of the power at the transmitting 

antenna. Each time a distance of a wavelength is added, the available power drops by a factor of 

four so that four wavelengths would decrease the strength of the energy field by one sixteen 

hundredth (0.000625). (Tr. 193.) 

Knowing the wavelength at which RF energy is transmitted is highly relevant to this 

discussion. Wavelength (measured in meters per second and the symbol for which is lambda, or 

A.) equals the velocity oflight divided by the operating frequency of the system. For the Matrix 

system, the wavelength of an RF signal at 430 MHz equals 0.697 meters per second (A.= 0.697). 

Expressed in feet, the wavelength of the Matrix system is approximately 2.2 feet. (Tr. 195.) 

Through the action of free space loss, the power of a 15m W Matrix transmitter operating at 430 

MHz would be diminished 100 times to 0.15mW over one wavelength of2.2 feet. (Tr. 198.) 

Having determined the characteristics of the RF energy emitted by the electronic devices 

approved by MSHA (for example, the 15mW emitted by a Matrix text communicator as 

diminished over distance), it remains to be determined whether this RF energy could initiate the 

detonation of a blasting cap used to ignite explosive charges in the mines. Blasting caps typically 

are small cylindrical metallic objects, "about the size of a pencil," with two wires extending from 

one end. (Tr. 47.) These are the leg wires, which are attached to lead wires running to a blasting 

unit or battery from which, at the time of detonation, an electrical current runs back through the 

lead wires to the blasting caps to detonate them and, ultimately, the explosive charge. (Tr. 49-

56.) 

None of the parties to these proceedings were able to testify to or otherwise document the 

exact amount of energy required to initiate the detonation of the blasting caps used in the 

Respondents' mines. Instead, the Secretary put on evidence concerning the energy level below 

which a detona~or could not be ignited, which is called the "no-fire level." The Secretary's 

expert witness, Chad Huntley, an electrical engineer at MSHA's Technical Support Approval and 

Certification Center, testified that, according to the SLP-20, "the chance of an unintended 

detonation is practically nil if your power level's below 40 milliwatts."11 (Tr. 163-64 (citing Ex. 

G-20 at p.2); Ex. G-18.) 

Huntley also testified concerning the specifications for a blasting cap made by Austin 

Powder that is commercially available for use in underground coal mines, the COALSTAR II 

Detonator. (Tr. 179-80; Ex. 25.) According to Huntley, this detonator has a no-fire level of 105 

11 The IME and Bureau of Mines publications refer to a "no-fire level" of 0 .04 watts (W), 

or40 milliwatts (mW), for commercial detonators. (Tr. 171; Ex. G-23.) The 40mW no-fire level 

equates to an induced current of 0.2A or 200mA at 1.0 ohm resistance, and is recognized as a 

"conservative" limit, because many commercially available detonators or blasting caps 

manufactured in North America have no-fire levels higher than 40m W. (Tr. 173, 231-32; Ex. 

G-24.) Detonators tested in 1973 by the Bureau of Mines were found to have no-fire levels 

ranging from 77mW to 275mW. (Ex. G-22 at 4-4.) 

32 FMSHRC Page 383 
milliwatts, 12 and using a detonator with a higher no-fire level than the IME 40m W standard 

would also increase the level of safety. (Tr. 180-83; Ex. G-25.) 

As noted above, the energy levels emitted by the Matrix system are far below the IME 

40mW (0.040 watts) no-fire standard, especially as the distance between the devices and the 

detonators increases. Thus, a Matrix text communicator held 2.2 feet away from a detonator 

would emit just 0.15 milliwatts (0.00015 watts) of RF energy, or less than one-half a percent 

(0.375%) of the IME 40mW no-fire standard, or for that matter only 0.14 percent of the 105mW 

no-fire level for a COALSTAR II Detonator. 

Moreover, Huntley testified that blasting in anthracite mines is often done in series where 

more than one blasting cap is used, which would require an increase in the power necessary to 

"initiate any one of the detonators." (Tr. 184-85.) Huntley testified further: 

Q: [L]et's say we're using our COALSTAR detonator that has a 

... 105 milliwatt no-fire level, and I have 10 COALSTAR 

detonators wired together in a series, what would be the no-fire 

level for ... those detonators as a group? 

A: It would be 10 times the power level necessary to initiate one 

detonator .... A thousand fifty milliwatts [l,050mW]. 

(Tr. 185.) As far as the Matrix system is concerned, if a miner were to be carrying all three 

components - a text communicator (15m W), a node (1 Om W), and a tag ( 6m W) - the combined 

RF energy emitted by them would be, at zero feet in distance, 3 lm W, which is less than the IME 

40m W no-fire standard. However, a miner would not normally have a need to carry a node, so 

simply having a text communicator (15mW) and a tag (6mW) would only amount to about half 

(2 lm W) of the 40m W no-fire level at a zero separation distance. 

Finally, administrative controls, such as separation distances, were also raised at the 

hearing. (Tr. 109:..10.) On cross-examination and redirect, Garcia noted that as of January 22, 

2010 when Alfred Brown Coal submitted an ERP, MSHA would approve separation distances of 

up to 50 feet. (Tr. 268-74.) Brown indicated in his cross-examination that it was his 

understanding that separation distances of 50 feet were required in his ERP. (Ex. G-11.) 

However, as Garcia clarified, MSHA would approve separation distances of up to 50 feet where 

a mine operator was unable to specify a safe separation distance based on a manufacturer's 

recommendation. (Tr. 274; see Ex. G-3F at 3.) Huntley later explained how to read the 

manufacturers' component charts and this revealed the L-3 and Matrix systems, as recently as 

12 The manufacturer specified the no-fire level as 0.45 amperes, and the "bridge wire 

resistance" as 0.54 ohms. To determine the no-fire level in watts, Huntley used the equation 

W = r12

, and calculated this as 105mW. (Tr. 182.) 

32 FMSHRC Page 384 
2008 and 2009, had recommended separation distances for various components of their C&T 

systems ranging from zero to seven feet. (Tr. 209-11; Ex. G-14.) 13 

3. Analysis of Secretary's evidence 

The Secretary has established through her expert witness, Chad Huntley, that the chances 

of an unintentional ignition or detonation of a blasting cap from C&T devices, which emit such 

low levels of RF energy, is infinitesimally remote to the point that it is nearly non-existent. The 

Secretary has also demonstrated through testimony and documentation that MSHA-compliant 

C&T systems are commercially available and can be effectively and safely used in underground 

anthracite mines. 

Where an ERP sets forth reasons for not adopting the specific post-accident provisions of 

section 3 l 6(b )(2)(F)(ii) which mandate a wireless two-way medium for communication and an 

electronic tracking system, the statute places the onus squarely on the operator to come up with 

alternative means of compliance that shall "approximate, as closely as possible," the degree of 

functional utility and safety protection provided by a wireless two-way communication and 

electronic tracking system. The Respondents failed to set forth in their ERPs such alternative 

systems that approximated, as closely as possible, the same level of safety and effectiveness 

provided by the upgraded C&T systems, as reflected in MSHA PPL P09-V-Ol. (Exs. G-lF, GlH, G-2F, G-2H, G-3F, G-3H, G-4F, G-4H, G-4J.) Rather, the Respondents' ERPs continued to 

rely on their older hard-wired telephone systems and mechanical "magnetic board" tracking 

systems with little change or explanation as to why these systems provided the same functional 

utility and safety protection as the newer C&T systems, such as the L-3 system tested by MSHA. 

Consequently, I find that the Respondents' ERPs (1) did not provide the congressionallymandated and upgraded C&T systems, and (2) did not set forth satisfactory reasons for failing to 

include such systems. (Exs. G-lF, G-lH, G-2F, G-2H, G-3F, G-3H, G-4F, G-4H, G-4J.) 

Furthermore, th~ Respondents failed to set forth in their ERPs alternative systems which 

"approximate[d], as-closely as possible," the same level of safety and effectiveness provided by 

the upgraded C&T systems, as required by section 316(b )(2)(F)(ii). 

Given the Mine Act's clear mandate, MSHA's and the IME's findings with regard to the 

operators' ability to safely use upgraded, commercially available C&T systems in conjunction 

with electric detonators, and ALJ Zielinski's decision in the RS&W Coal Company ERP dispute 

resolution proceeding, I determine that the Respondents did not satisfy section 316(b)(2)(F)(ii) of 

the Act. Therefore, I conclude that the Secretary did not act arbitrarily or capriciously in refusing 

to approve the Respondents' ERPs. See Twentymile Coal Company, 30 FMSHRC 736, 745-49 

(Aug. 2008) (district manager's determination following review of an ERP can be reversed by 

Commission only if it is arbitrary and capricious). 

13 The IME's SLP-20 provides tables ofrecommended safe separation distances to be 

maintained between blasting circuits and different types of RF equipment. (Ex. G-20.) An 

August 2008 SLP-20 addendum, intended to be more applicable in underground mines, sets forth 

a formula for calculating the field strength produced by multiple RF sources. (Ex. G-21.) 

32 FMSHRC Page 385 
Nevertheless, while the technical evidence clearly demonstrates an extremely low risk of 

RF energy from C&T systems causing unintended detonations, it appears the results of these 

technical reports were not communicated effectively to the Respondents, which led to these 

proceedings. What is clear from the testimony elicited from Brown's cross-examination of the 

Secretary's witnesses is that the Secretary, through the district manager, did an inadequate job of 

explaining to the operators the safety issues surrounding the installation of C&T systems in an 

environment where blasting occurs. In so doing, District 1 personnel failed to assuage the fears 

of the Respondents. 

The Secretary through her operatives at the district level seemed to give conflicting 

information and did not appear to appreciate the practical concerns of these operators. Indeed, as 

of January 22, 2010, Brown stated his belief that he was required to have, and Garcia testified 

that MSHA had continued to approve of, a separation distance of 50 feet for C&T devices in a 

revised ERP, which admittedly would make it extremely difficult for a miner to work effectively 

in these small anthracite mines when wearing the required gear. (Tr. 263-66.) Yet, expert 

witness Huntley testified that in 2009 the L-3 and Matrix manufacturers had recommended a 

five-foot separation distance- a 90 percent cut in the distance-which MSHA had approved. 

Huntley also testified that Matrix had recently requested a zero separation distance, which 

MSHA would be analyzing for approval in the near future. (Tr. 214-15.) While advances in 

technology can occur rapidly, and the onus is on the operator to submit an ERP with appropriate 

administrative controls, it appears MSHA did not adequately communicate to the Respondents 

recent changes in the safe separation distances for MSHA-approved C&T systems. A case in 

point is that other anthracite mines with recently updated and approved ERPs, still mandate a 

50-foot separation distance even though they have Matrix systems. (Exs. G-15, G-16, G-17.) 

MSHA appears to have compounded the problem, and created the perception it was not 

proceeding in good faith, by initially promising a second test of C&T equipment in an anthracite 

mine and then failing to do so. (Tr. 234-35, 257.) Although Huntley explained on crossexaminatiori that the results of the LEP testing in conjunction with the lower RF levels emitted 

from the Matrix system made a test of the Matrix system unnecessary (Tr. 257-60), nothing in the· 

evidence presented at the hearing by the Secretary indicates this information was communicated 

effectively to the Respondents. 

Furthermore, other practical solutions to assuage the fears of the Respondents do not 

appear to have been considered or adequately communicated to the Respondents by MSHA. For 

example, during questioning by the court, Garcia was asked about differences in the blasting caps 

with regard to no-fire levels. He indicated that the blasting caps were all the same. (Tr. 145-46.) 

Yet questioning of expert witness Huntley noted the existence of different no-fire levels for 

blasting caps and specifically pointed to research that showed higher no-fire level thresholds for 

certain non-foreign manufactured blasting caps (Tr. 176-78; Ex. G-22 at 4-4), which the 

Secretary cited in her post-hearing submission (Sec'y Closing Br. at 13-14). As the supervisor 

who is directly involved with approval ofERPs, Garcia's apparent lack of knowledge in this area 

is troubling. Granted that MSHA did share with the Respondents its technical analyses and 

papers regarding information on the RF levels and their safety with regard to unintended 

detonations; however, MSHA needs to know its audience. These are not multi-million dollar 

32 FMSHRC Page 386 
operations that have technical experts who can digest these documents. Rather, these are small 

operators who have other day-to-day concerns with little background in megahertz and radio 

frequency analyses. Alfred Brown's cross-examination of Huntley is a case in point. Brown was 

repeatedly apologetic for having to ask expert Huntley questions on the stand about several 

concerns with regard to this new C&T technology, but he explained that he had no other forum to 

get his questions answered than through this expedited hearing process. Making Huntley 

available to the IMA to address their concerns before issuing the citations could have been an 

effective step to resolve these disputes. 

As the operators stated in their prehearing statement, the ERP dispute process is not the 

best way to resolve these concerns. In this regard, MSHA initially took the right step in meeting 

with the 1MA in March 2009 and by agreeing to test C&T systems at an anthracite mine, which 

were positive and productive steps to respond to the IMA' s concerns. However, holding a closeout meeting with the IMA to explain testing results, answer additional questions, and discuss 

next steps might have avoided the need for these proceedings. Instead, MSHA made the decision 

to issue citations and force the issue into this forum. 

C. Economic Feasibility- S & M Coal Company 

While I find that the Secretary has established a rational basis for rejecting the alternate 

means of compliance in the ERP submitted by S&M Coal, this does not necessarily translate into 

an affirmance of her findings regarding the citation at issue. The Secretary published MSHA 

PPL No. P09-V-Ol onJanuary 16, 2009, which discussed the criteria she would use for 

approving ERPs. In a Question and Answer document on PPL No. P09-V-Ol published on April 

29, 2009, MSHA stated it would consider economic feasibility in approval of C&T systems. 

S&M Coal is a very small operation, which in 2009 produced 3,526 tons of anthracite 

coal and employed just five miners. (Ex. R-1.) Koperna testified that in 2009, S&M Coal had 

gross receipts of$183,139, with net proceeds after expenses of$19,483.14 (Tr. 285-86.) 

Koperna took his salary out of S&M's net proceeds. (Tr. 286.) 

Although the Mine Act does not provide that an operator's ability to afford upgraded 

C&T systems should be considered during the ERP approval process, the Question and Answer 

guidance document appended to PPL No. P09-V-O 1 states that MSHA "will consider whether 

[C&T] systems are economically feasible on a case-by-case basis." (Ex. G-7, item 4.) This was 

done in the case of S&M Coal. In a February 17, 2010 letter, MSHA District 1 Manager John 

Kuzar informed S&M Coal that, after reviewing financial statements from the company, he 

"determined that the information does not exempt you from providing upgraded (C&T] systems 

for your Buck Mountain Slope mine." (Ex. G-4J.) Kuzar acknowledged that ''there is a fairly 

14 S&M's 2009 expenses included explosives ($17,392), fuel ($13,223), haulage 

($20,950), accounting ($1,200), timber ($2,700), repairs and maintenance ($3,264), 

miscellaneous supplies ($4,500), taxes and licenses ($5,141), amortization ($1,928), depreciation 

($1,655), interest ($3,264), and labor ($80,586). (Tr. 285-86; Exs. R-1, R-2.) 

32 FMSHRC Page 387 
significant expense associated with the purchase and installation of such a [C&T] system." (Id.) 

But Kuzar went on to state: 

(Id.) 

[I]t is my understanding that the [C&T] system can be purchased and installed at 

the Buck Mountain mine for an amount that is less than the average profit 

reported by the mine over the last three years[,] and for an amount that is 

substantially less than many of the other expenses associated with your operation. 

However, in a December 10, 2008 guidance document, MSHA estimated the per mine 

cost of installing C&T systems in mines with 1-19 employees as follows: (1) $148,000 forthe 

communication system, consisting of a base unit, amplifiers and associated barrier units, power 

supply, handheld radios, cable, and labor to install the system; (2) $76,200 for the tracking 

system, consisting of a mine server and workstation, software, cable, hubs, radio frequency 

identification ("RFID") readers, RFID personnel tags, and labor to install the system; and 

(3) $9,000 per year for maintenance and extensions of the systems. Given these figures from 

MSHA, I find that S&M Coal could expect to incur an initial start up cost of $224,200 to install a 

C&T system and, each year thereafter, maintenance costs of $9,000 per annum. (Ex. G-6 at 11.) 

As stated above, S&M Coal reported a net profit of$19,483 for 2009, which was paid to 

Kopema as his salary. (Tr. 285-86.) I found credible and convincing Kopema's testimony that 

S&M Coal is a "hand to mouth" operation with few cash resources to invest in new equipment. I 

also note that the Secretary failed to introduce any record evidence showing that S&M Coal had 

alternate sources of funding for a C&T system. Nor did the Secretary rebut Kopema's testimony 

concerning the financial condition of S&M Coal. 

In light of the foregoing, District Manager Kuzar' s determination that installation of a 

C&T system would cost "less than the average profit reported by [S&M Coal] over the last three 

years"15 would appear so perfunctory and conclusory as to fail to comport with MSHA's stated 

policy of "consider[ing] whether [C&T] systems are economically feasible on a case-by-case 

basis." (Ex. G-7, item 4.) Contrary to Kuzar's determination, the evidence before me indicates 

that installation of a C&T system would impose upon S&M Coal a crippling fmancial burden, 

even in light of the probability of S&M Coal obtaining such a C&T system with financing. 

Kuzar's apparent failure to follow MSHA's policy to consider S&M Coal's financial 

ability associated with implementation of section 316(b )(2)(F) appears to have rendered that 

policy moot. Operators such as S&M Coal will be forced to shut their mines, and lay off their 

miners and have them enter a workforce in an economy that is, at this point in time, in the midst 

of the deepest recession since the Great Depression. MSHA published a policy its district 

15 The net profits earned by S&M Coal for 2007 and 2008 were not introduced into 

evidence. I thus base my conclusions on the issue presented by Mr. Kopema on data from 2009. 

I note, however, th.at S&M Coal's production figures for 2007 (3,085 tons) and 2008 (4,667 tons) 

are similar to the mine's production for 2009 (3,526 tons). (Ex. R-3.) 

32 FMSHRC Page 388 
managers apparently do not intend to support, leaving small and financially strapped operators 

like S&M Coal to wonder why their government is unresponsive. (See Ex. R-4.) MSHA can and 

must do better. 

This is true notwithstanding the fact that the Commission has long held that MSHA's 

policy statements such as a Program Policy Letter or MSHA' s Program Policy Manual are not 

binding on the Secretary or the Commission. See D.H Blattner & Sons, Inc., 18 FMSHRC 1580, 

1586 (Sept. 1996); Bulk Transp. Servs., 13 FMSHRC 1354, 1360 (Sept. 1991); see also Brock v. 

Cathedral Bluffe Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir.1986) (reversing Commission 

decision which improperly regarded the Secretary's general statement of an enforcement policy 

as a binding regulation which the Secretary was required strictly to observe). This precedent is 

echoed in MSHA's policy here. On page two of the guidance document it states: 

This guidance represents MSHA's current thinking with respect to two-way 

communication and electronic tracking for use in mine emergencies. It does not 

create or confer any rights for any person nor does it operate to bind mine 

operators or other members of the public. 

(Ex. G-6 at 2.) I am cognizant that, unlike section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), 

which provides that any penalty the Commission assesses against a mine operator must take into 

consideration "the effect [of a penalty] on the operator's ability to continue in business," the 

Mine Act itself does not specify that a mine operator's compliance with section 316(b )(2)(F) is 

contingent upon its ability to afford a state-of-the-art C&T system. Congress mandated the use 

of such systems in mines regardless of cost, and both MSHA and the Commission are duty botind 

to enforce that mandate. I am therefore constrained to conclude that Kopema's arguments 

concerning the inability to afford a new C&T system, although compelling, must be rejected. 

Having reached this conclusion, I would urge MSHA to work with S&M Coal in the 

future to find a workable solution to the company's conundrum- a solution that allows the 

company to continue in business. 

ORDER 

Citation Nos. 7000115, 7000116, 7000117, and 7000440 are hereby AFFIRMED. The 

Respondents are hereby ORDERED to submit revised and compliant Emergency Response 

Plans to the district manager within 20 days of the date of this decision. 16 

~~Yy Administrative Law Judge 

16 The Administrative Law Judge shall retain jurisdiction over these proceedings for the 

limited purposes set forth in Commission Procedural Rule 24(f)(2), 29 C.F.R. § 2700.24(f)(2). 

32 FMSHRC Page 389 
Distribution: (Facsimile and Certified Mail) 

Stephen Turow, Esq., Mary Forrest-Doyle, Esq., Mattew Babington, Esq., Office of the Solicitor, 

U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2296 

Kerry Harris, Owner, Orchard Coal Company, Primrose Slope, 15 Motter Drive, Pine Grove, PA 

17963 

Darryl Koperna, Supt., S & M Coal Company, 1744 E. Grand Avenue, Tower City, PA 17980 

Alfred J. Brown, Foreman, Alfred Brown Coal Company, 7 Ft. Slope, 71 Hill Road, Hegins, PA 

17938 

Richard E. Bender, Partner, B&B Coal Company, Rock Ridge No. 1 Slope, 225 Main Street, 

Tremond, PA 17981 

/Ip 

32 FMSHRC Page 390 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

NEWMONT USA LIMITED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

NEWMONT USA LIMITED, 

Respondent · 

721 19th Street. Suite 443 

Denver, CO 80202-2500 

303-844-3577 /FAX 303-844-5268 

Aprill4,2010 

CONTEST PROCEEDING 

Docket No. WEST 2007-743-RM 

Citation No. 6394834;08/02/2007 

Leeville Mine 

Mine ID 26-02512 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-459-M 

A.C. No. 26-02512-137300 

Leeville Mine 

ORDER DENYING THE SECRETARY'S MOTION FOR SUMMARY DECISION 

ORDER GRANTING NEWMONT'S MOTION FOR SUMMARY DECISION 

ORDER OF DISMISSAL 

Before: Judge Mamling 

These cases are before me upon a notice of contest and a petition for assessment of civil 

penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (the "Act"). The Secretary filed a motion for summary decision under Commission 

Procedural Rule 67. 29 C.F.R. § 2700.67. In response, Newmont USA Limited ("Newmont") 

filed a cross-motion for summary decision. Both parties briefed the issues. 

Section 2700.67 sets forth the grounds for granting summary decision, as follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: 

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

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

matter oflaw. 

32 FMSHRC Page 391 
On August 2, 2007, Gerald Killian with the Department of Labor's Mine Safety and 

Health Administration ("MSHA") issued Citation No. 6394834 under section 104(a) of the Act 

alleging a violation of30 C.F.R. § 50.10. The citation alleges the following violation: 

An accident happened on 07 /23/2007 in the main drift between 152 

stope and the 161 laydown, where a miner was pinned between the 

rib and a haul truck, causing him to be twisted around, breaking his 

left femur. The miner was treated and life flighted to the hospital. 

MSHA notified about the accident on 7/27/2007, when an 

anonymous fax was received in the Elko office at 0725 hours. It 

has been determined that this accident meets the criteria for an 

immediate reportable and the company should have reported it 

within 15 minutes. 

Inspector Killian determined that it was unlikely that the cited condition would injure a miner 

and that the violation was not significant and substantial. He also determined that the operator's 

negligence was high. The Secretary proposed a penalty of$5,000.00 for the citation. 

The cited regulation provides that the "operator shall immediately contact MSHA at once 

without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator 

knows or should know that an accident has occurred." The term "accident" is defined by the 

Secretary in section 50.2(h). For purposes of this citation the applicable definition of"accident" 

is "[a]n injury to a miner which has a reasonable potential to cause death." 30 C.F.R. § 

50.2(h)(2). 

The parties stipulated to the key facts, as follows: 

l. On July 23, 2007, Newmont employee Andrew Little was working on 

electrical power moves on the 4460 level of the Leeville Mine with Primitivo 

Valasquez. After the two men had moved and connected the necessary power 

leads and trailing cables, Little walked over to the main load center on the 4460 

Level to reset the breaker for the power to the Pemco (power generation box). 

2. At approximately 3:56 a.m., Little walked past the cab of haul truck 

055 and made eye contact with the driver of the truck. The truck was parked and 

idling. 

3. The opening between the truck and the rib was adequate for clearance, 

but the opening between the truck and the rib narrowed as Little walked further 

back. When Little reached the point where the clearance had narrowed to 

approximately 2 feet, the truck began to move. 

32 FMSHRC Page 392 
4. As Little walked by, the tire of the haul truck ran over his right boot, 

and grabbed as the wheel of the truck passed by him. The tire caught the light 

cord on his mine belt and twisted Little around as he was scrambling up the rib to 

avoid being pulled under the truck. 

5. Immediately after the truck passed Little, Velasquez heard Little 

screaming. Little told Velasquez that his leg was broken and he was thirsty. 

6. The truck continued down the drift and did not stop until after it had 

passed Little. 

7. At approximately, 4:05 a.m., the truck driver called dispatch to report 

that there was a man down and that a man had been run over by a haul truck. The 

driver was so excited during his initial call to dispatch that some supervisors were 

unable to understand what he was saying. The truck driver called back a second 

time and stated, "We have an emergency down here at the 4460-161 and need an 

EMT." 

8. An EMT arrived at the accident scene at approximately 4:20 [a.m]. He 

gave Little oxygen, put him in a cervical collar and strapped him to a stokes 

basket. Little was alert and responsive and his vital signs were good. The EMT's 

initial assessment was that Little had suffered an injury to his left femur. The 

EMT at no time believed that Little had suffered an injury that had a reasonable 

potential to cause death. 

9. At approximately 4:25 a.m., the Leeville HSLP Rep notified the mine 

superint~mdent of the incident. 

10. At approximately 4:30 a.m., the Leeville HSLP Rep notified the 

general foreman of the incident. 

11. At approximately 4:40 a.m., Little was loaded on the back of a 12 

passenger man trip vehicle and driven to the surface. At 4:44 [a.m.], Little was 

transferred to the Carlin ambulance, and ultimately flown by Access Air 

Helicopter to Northern Nevada Regional Hospital in Elko. 

12. At the hospital, Little was diagnosed with an oblique mid shaft 

fracture of his femur that required surgical intervention (pinning). He remained 

hospitalized until July 27. Little was not released to go back to work until 

Novembers. 

13. The truck was approximately 2 feet from the rib when the truck ran 

over Little's right foot. 

32 FMSHRC Page 393 
14. Little never lost consciousness during this incident. 

15. Newmont did not notify MSHA that Little was injured within 15 

minutes of learning of the injury. 

16. On the morning of July 23, 2007, MSHA inspector Vic Peterson came 

to the Leeville Mine to do a quarterly inspection. Newmont employees explained 

to fuspector Peterson that an accident occurred that night and that they did not 

report to MSHA as they believed that it was not immediately reportable. 

17. On July 27, 2007, fuspector Gerald Killian came to the Leeville Mine 

to investigate the July 23, 2007, accident. 

18. On July 27, Killian stated that it was unknown if a citation would be 

issued for not reporting within 15 minutes. 

19. On July 31, 2007, Killian determined he would write Newmont a 

citation for failing to report the accident to MSHA within 15 minutes. 

20. On August 2, 2007, MSHA issued Citation No. 6394834 to Newmont 

for an alleged violation of30 C.F.R. § 50.10 for failing to report the accident 

within 15 minutes. 

I. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS 

A. Secretary of Labor 

The Secretary argues that Newmont violated section 50. l 0 by failing to notify MSHA 

within 15 minutes of the accident. The Secretary argues that a fractured femur has a reasonable 

potential to cause death because of the risks inherent with "hospitalizations and complications in 

surgery." (Sec. Memo. at 5). She also argues that there are conditions linked to fractures of the 

femur that can cause death, such as fat embolisms and deep vein thrombosis. She concludes that 

there is a ''potential of death, even though minimal, from a fractured femur." Id. 

Further, the Secretary maintains that, in addition to the injury itself, the nature of the 

events surrounding the accident should be considered when making a determination as to 

whether an injury has a reasonable potential to cause death. In Cougar Coal Co., 25 FMSHRC 

513 (Sept. 2003). a miner was exposed to an electric shock of about 7200 volts, which in turn 

caused the miner to fall from a height of 18 feet, hit his head during the fall, and lose his pulse. 

In reversing the judge's holding that immediate notification was not required, the Commission 

held that the nature of the events surrounding the injury, as well as the actual injury sustained, 

must be considered when determining whether the accident had a reasonable potential to cause 

death. Id. at 520. In the present case, she states that "[f]or at least the first fifteen minutes after 

32 FMSHRC Page 394 
notification, everyone believed that Little had been run over by a haul truck." (Sec. Memo. at 6). 

The types of injuries incurred from being run over by a haul truck have a reasonable potential to 

cause death. 

B. Newmont USA Limited 

Newmont argues that the Secretary's interpretation of the cited standard is incorrect and 

would lead to absurd results. The potentially fatal risks incidental to hospitalization and 

complications in surgery for a femoral fracture are "remote, attenuated, and twice removed" from 

any risks that arose from the injury in this case. (Newmont Response at 3-4). Under the 

Secretary's theory of the case, immediate reporting would be required anytime a miner is taken to 

a hospital. Further, Newmont argues that, in determining whether there is a reasonable potential 

for death, the court should focus on the nature of the injury itself and not the nature of the events 

that caused the injury. Newmont argues that the injury sustained by Little did not have a 

reasonable potential to cause death and maintains that nothing came to the attention of the 

company that should have led it to believe that such a potential existed. The injured miner in 

Cougar Coal, on the other hand, was shocked by 7 ,200 volts of electricity, fell 18 feet, and hit his 

head on a power center. That miner was initially unconscious, he did not have a pulse, and he 

required cardiopulmonary resuscitation ("CPR"). Mr. Little was alert and responsive 

immediately after his injury and told Velasquez that he had broken his leg. The EMT who 

arrived at the scene within approximately 15 minutes, correctly diagnosed the injury to Little's 

left femur and at no time believed that the injury had a reasonable potential to cause death. 

II. DISCUSSION WITH F1NDINGS OF FACT 

AND CONCLUSIONS OF LAW 

I fmd th~t the stipulated facts are sufficiently comprehensive for me to render a decision 

on the legal issues raised by the parties. There are no genuine issues as to any material fact and I 

fmd that Newmont is entitled to summary decision as a matter oflaw. 

Section 3(k) of the Mine Act provides that an" 'accident' includes a mine explosion, 

mine ignition, mine fire, or mine inundation, or injury to, or death of, any person." {Emphasis 

added). 30 U.S.C. § 802(k). The Secretary's regulations at section 50.20 (Reporting of 

Accidents, Injuries and Illnesses) implements this provision of the Mine Act. Operators must 

report all accidents to MSHA on Form 7000-1within10 working days. The Secretary's 

definition of the term "accident" in section 50.2(h) is rather confusing because this definition is 

quite different from the definition in section 3(k) of the Mine Act. This regulatory definition sets 

forth specific types of section 3(k) accidents that must be reported immediately. The question in 

this case is not whether the injury sustained by Mr. Little was required to be reported to MSHA; 

the issue is whether it was required to be reported immediately. It was required to be 

immediately reported only if the injury sustained by Little had a "reasonable potential to cause 

death." 

32 FMSHRC Page 395 
I find that the Secretary failed to establish a violation of section 50. l 0. The regulation 

does not require mine operators to immediately report every injury that requires off-site 

emergency care at a hospital or clinic. Although it is true that any hospital surgery raises a risk 

that the patient may die from complications during surgery or from an infectious disease 

contracted at the hospital, such risks are too remote from the injury sustained in this case. Little 

:fractured his femur and he had surgery to repair his leg. Although there was some initial 

confusion about the extent of Little's injuries and what exactly had happened to him, it was clear 

within a few minutes after the incident that he suffered a broken leg and that this injury did not 

present a reasonable potential that he was going to die from these injuries. 1 

I agree with Newmont that the facts in Cougar Coal are easily distinguishable from the 

facts here. I have taken into consideration the events that led up to the injury, but these events do 

not lead me to conclude that an accident occurred. It became clear very quickly that the most 

serious injury sustained was a broken leg. The parties agreed that the company EMT who arrived 

at the scene within 15 minutes "at no time believed that Little had suffered an injury that had a 

reasonable potential to cause death." (Stip. 8). If, on the other hand, Little had been 

unconscious, confused, in shock, coughing up blood, or if he required CPR, then one could 

conclude that the extent of his injuries was unknown and immediate reporting was required. In 

Cougar Coal, the Commission held that the "decision to call MSHA cannot be made on clinical 

or hyper-technical opinions as to a miner's chance of survival." 25 FMSHRC at 521. In this 

instance, the decision was not based on such hyper-technical opinions, but was made based on 

the condition of Mr. Little a few minutes after he was injured. There is no evidence that his 

condition worsened at any time after that. 

The Secretary contends that Newmont employees believed, for at least 15 minutes, that 

Little had been run over by a haul truck and, therefore, given the potentially fatal injuries that can 

be associated with being run over by a heavy truck, it was obligated to notify MSHA of the 

accident within-that 15 minute period. The language of the Secretary's regulation is clear. An 

operator is required to notify MSHA within 15 minutes "once the operator knows or should 

know that an accident has occurred." 30 C.F.R. § 50.10. The regulation does not require 

reporting with 15 minutes after a miner sustains an injury. The operator must know that an 

accident occurred before the obligation to immediately report arises or the operator must have 

been in a position such that it should have known that an accident occurred. In this case, it 

became clear within a few minutes after Little was injured that an accident, as defined by the 

Secretary, had not occurred. Because there was not an accident that Newmont knew of or should 

have know of, the obligation to immediately report the injury did not arise. 2 

1 I do not find it significant that he was taken to the hospital in Elko, Nevada, by 

helicopter. Nevada is a very sparsely settled state and distances can be great. 

2 In the Secretary's reply brief to Newmont's cross-motion, the Secretary provided 

information that was not included in the stipulated facts or in her initial memorandum in support 

of her motion for summary decision. This information was from written statements made by 

32 FMSHRC Page 396 
I am somewhat surprised that the Secretary pressed this case. If the subject Part 50 

regulations were interpreted in the manner suggested by the Secretary, MSHA would receive 

many more calls from mine operators reporting all kinds of "accidents" that are presently not 

immediately reportable. Virtually every serious injury would have to be immediately reported 

because the operator would have to call MSHA before it could determine whether the injury had 

a reasonable potential to cause death. Most of these "accidents" would probably not require an 

immediate investigation by MSHA, but the agency would have to spend precious resources 

making this determination and, in many cases, MSHA would immediately send an inspector out 

to conduct an investigation. The MSHA inspection force is stretched pretty thin as it is and the 

opportunity cost of immediately investigating these types of "accidents" could be significant. 

If the Secretary would like injuries similar to the injury sustained by Little to be 

immediately reported, she should consider modifying her regulations. It appears that the 

Secretary believes that a mine operator should immediately report any serious injury, at least if 

off-site medical care or hospitalization is required. As stated by the Commission in Cougar 

Coal, "it would benefit the mining community if the Secretary would clarify when it is urgent to 

notify MSHA, when it is not, and what reports are required." 25 FMSHRC at 52. 

III. ORDER 

For the reasons set forth above, the Secretary's motion for summary decision is 

DENIED, Newmont's motion for summary decision is GRANTED, Citation No. 6394834 is 

VACATED, and these proceedings are DISMISSED. 

Richard W. Manning 

Administrative Law Judge 

miners recounting the events following Little's injury, as provided by Newmont during 

discovery. The Secretary attached these discovery responses to her reply brief This information 

was included in her reply brief as support for her argument that, for at least 15 minutes, 

Newmont believed that Little had been run over by a haul truck. Newmont moved to strike these 

statements from the record because they were not part of the facts stipulated to by the parties. In 

response, the Secretary argues that this case was not submitted for summary decision on 

stipulated facts. Rather, the case was submitted on cross-motions for summary decision that 

included stipulated facts. Newmont's motion to strike is DENIED. The proffered statements, 

although more detailed, are entirely consistent with the information provided in the stipulations. 

The statements were provided by Newmont during discovery and are not disputed. 

32 FMSHRC Page 397 
Distribution: 

Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-

700, San Francisco, CA 94103-6704 (Certified Mail) 

Mark M. Savit, Esq., Patton Boggs, 1801 California St, Suite 4900, Denver, CO 80202 

(Certified Mail) 

RWM 

32 FMSHRC Page 398 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

READING ANTHRACITE COMP ANY 

Respondent 

April 21, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2007-171 

A.C. No. 36-01977-112019 

Mine: Wadesville P-33 

DECISION 

Appearances: Adam F. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, on behalf of the Petitioner; 

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, Pottsville, Pennsylvania, 

on behalf of the Respondent 

Before: Judge Bulluck 

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary 

of Labor on behalf of her Mine Safety and Health Administration ("MSHA"), against Reading 

Anthracite Company ("Reading Anthracite"), pursuant to section 105 of the Federal Mine Safety 

and Health Act of 1977 ("Act" or "Mine Act"), 30 U.S.C. § 815. The Secretary seeks civil 

penalties in the amount of$88,600.00 for four alleged violations of the Act and her mandatory 

safety standards. 

A hearing was held in Reading, Pennsylvania. The parties' Post-hearing Briefs and 

Reading Anthracite's Reply Brief are of record. For the reasons set forth below, I AFFIRM, as 

AMENDED, the two citations and two orders issued by the Secretary in connection with the 

fatal accident that occurred at the Wadesville P-33 mine on December 6, 2005, and assess 

penalties against Respondent. 

I. Stipulations 

The parties stipulated as follows: 

1. Respondent is an "operator" at the Wadesville P-33 mine as defined in section 3(d) of 

the Mine Act, 30 U.S.C. § 802(d). 

32 FMSHRC Page 399 
2. Respondent is subject to the jurisdiction of the Mine Act. 

3. The presiding Administrative Law Judge has jurisdiction over the proceedings 

pursuant to section 105 of the Mine Act, 30 U.S.C. § 815. 

4. The citations and terminations involved herein were properly served by a duly 

authorized representative of the Secretary of Labor upon an agent of the Respondent at the dates, 

times, and places stated therein, and may be admitted into evidence for the purpose of 

establishing their issuance. 

5. The Wadesville P-33 mine produces approximately 42,273 tons of coal annually. 

6. Reading Anthracite Company produces approximately 112, 766 tons of coal annually. 

7. The imposition of the proposed civil penalties will have no effect on Respondent's 

ability to remain in business. 

8. Respondent demonstrated good faith in the abatement of the citations .. 

9. On December 6, 2005, Respondent's haul truck driver, Robert Chattin, was involved 

in a fatal accident when the Euclid 671 haul truck he was operating overturned. 

10. On December 6, 2005, before the fatal accident, the indicator lights for the 

transmission retarder and parking brake in the Euclid 671 were not functioning. 

11. Following the December 6, 2005, accident involving the Euclid 671, grease and oil 

contamination was discovered on the truck's left front brake. 

12. Following the December 6, 2005, accident involving the Euclid 671, the right front 

brake was discovered to have a piece of rubber from the inside of the hose blocking the flow of 

brake fluid. 

13. Following the December 6, 2005, accident involving the Euclid 671, measurements 

on the rear brake drums were taken, which indicated that those drums were somewhere between 

30.403 inches and 30.525 inches in diameter. 

14. Respondent violated 30 C.F .R. § 77 .171 O(i) in that Chattin was not wearing his seat 

belt while operating the Euclid 671 on December 6, 2005. 1 

1 30 C.F.R. § 77.171 O(i) provides: "Each employee working in a surface coal mine or in 

the surface work areas of an underground coal mine shall be required to wear protective clothing 

and devices as indicated below: . . . (i) Seatbelts in a vehicle where there is a danger of 

32 FMSHRC Page 400 
15. Chattin's failure to wear a seat belt on December 6, 2005, contributed to the fatal 

nature of the December 6, 2005, accident. 

16. Chattin did not complete a Driver Inspection Report for the Euclid 671 on 

December 6, 2005. 

17. On December. 6, 2005, the load bemg hauled by the Euclid 671 during the accident 

did not exceed the truck's operating parameters. 

18. The Euclid 671 was operated on the following dates, by the following drivers, with 

the operating hours for the truck set forth in parentheses: 

a. May 4, 2005, by Jon Pennypacker (873 hours); 

b. June 9, 2005, by William Lurwick (882 hours); 

c. June 10, 2005, by William Lurwick (888 hours); and 

d. September 14, 2005, by Michael Mihalsky (890 hours). 

19. Michael Mihalsky did not complete a Driver Inspection Report for the Euclid 671 on 

September 14, 2005. 

20. Respondent has never disciplined any of its employees for failing to wear a seat belt. 

21. Respondent has never disciplined any of its employees for failing to conduct an 

adequate pre-op~ration inspection of mobile equipment. 

22. The transmission hose for the Euclid 671 truck developed a leak at some point before 

the accident on December 6, 2005. 

23. The authenticity and admissibility of Petitioner's Exhibits 1-7, 16-18, 20-25, 33-34, 

and 36. 

24. Petitioner is without knowledge of any person who witnessed Chattin commence 

operation of the haul truck on December 6, 2005, without conducting a pre-operational 

inspection. 

25. From December 6, 2003, to December 6, 2005, Respondent was not cited by MSHA 

as a result of any of Respondent's miners failing to comply with seat belt safety guidelines, 

conduct pre-operational inspections of mobile equipment, or properly perform regular 

overturning and where roll protection is provided." 

32 FMSHRC Page 401 
maintenance inspections of mobile equipment. 

26. Petitioner is without knowledge of any fact(s) proving the hole in the transmission 

hose existed at any point in time before the commencement of the operation of the haul truck on 

December 6, 2005. 

27. Even if the transmission retarder indicator light and parking brake indicator light 

inside the cab of the haul truck were connected and functional on December 6, 2005, such 

condition of the lights would not have prevented the accident from occurring. 

28. After the investigation of the accident of December 6, 2005, Petitioner is without 

knowledge of any person who witnessed Chattin complaining of leaking fluids or braking 

problems on the haul truck on the day of the accident. 

29. On December 6, 2005, before the haul on which the accident occurred, Chattin made 

four ( 4) hauls of material along a path that was similar to the path he was traveling on before the 

accident. 

30. On December 6, 2005, the rear brakes on the haul truck were in a state where the 

distance between the pads and drums was sufficient to stop the haul truck, assuming all other 

systems on the haul truck were operating adequately. 

31. On December 6, 2005, the parking brake on the haul truck was operating properly. 

32. After the investigation of the accident of December 6, 2005, Petitioner is without 

knowledge of any fact( s) that would prove the alleged defect of the check valve of the air system 

on the haul .truck was present before the accident, rather than becoming present during the 

accident or while the haul truck was being set upright after the accident. 

33. The authenticity and admissibility of Respondent's proposed Exhibits 1-4, 6-15, and 

18-23. 

II. Findint:s of Fact and Conclusions of Law 

The stipulations of the parties provide an adequate background as to the facts and 

circumstances surrounding the citations and orders at issue in this proceeding. Having reviewed 

the record, I have made additional :findings of fact. 

Robert Chattin, the deceased driver of the Euclid 671 truck, died as a result of injuries he 

sustained in the accident. This finding is consistent with the report of the coroner, who ruled: 

"Because the injuries found on autopsy were directly causal to demise AND were the result of 

the vehicle's tipping over and sliding down an embankment, the Manner of Death is hereby ruled 

Accidental." Ex. G-18 (emphasis in original). The coroner also noted the results of an autopsy, 

32 FMSHRC Page 402 
which revealed that Chattin died from asphyxia as a result of blunt force trauma to the chest, 

sustained when he was partially ejected from the truck when it tipped over. Ex. G-18. This 

finding is also consistent with MSHA's conclusion that Chattin died as a result of the accident. 

Tr. 87. 

In making this finding, I have considered the testimony of Robert Shellhammer, Reading 

Anthracite's maintenance.supervisor, in whose opinion the accident occurred because Chattin 

"passed out." Tr. 267. Shellhammer was the first to arrive at the scene of the accident some two 

to three minutes after being alerted about it, although it is not clear from the record exactly when 

the accident occurred. Tr. 247-50. He approached the truck and saw that Chattin's "face was 

completely blue." Tr. 249. Shellhammer believed that the accident was caused by Chattin 

passing out "[b ]ecause just the way the truck hit the berm and the route it followed and the 

condition he was in in a short period of time," and because after the accident, while still in the 

cab, Chattin "wasn't bleeding at all. Even his glasses weren't ... knocked off his face. I thought 

that was very odd. And he had a couple minor cuts and he wasn't even bleeding." 

Tr. 267-69. Shellhammer also testified that Chattin "was taking the pills because I seen them all 

over the ground the day of the accident," and that on at least one occasion, he observed Chattin 

short of breath while performing a task involving minimal exertion. Tr. 268. 

Reading Anthracite offered no medical evidence to corroborate Shellhammer' s 

conclusions. While I do not discredit Shellhammer' s testimony, I find that his anecdotal 

testimony is outweighed by the coroner's report. I am, thus, unpersuaded that Chattin lost 

consciousness or died at the wheel ofthe Euclid 671 truck before it careened out of control. 

I also find that Reading Anthracite had no preventive maintenance program or policy in 

place adequate enough to have prevented the equipment failure that led to Chattin's death. 

Edward Mitchell, a mechanic at Reading Anthracite for 35 years, explained the company's 

maintenance policy~ "If a driver complains about a problem with the truck, you repaired it. If he 

had a problem on his driver's sheet, his daily report sheet, you repaired the problem." Tr. 22-24. 

MSHA Inspector George Mcintyre, who investigated the fatal accident, testified that Reading 

Anthracite was unable to produce for him a schedule of preventive maintenance procedures. 

Tr. 113. Mcintyre's conclusion about Reading Anthracite's lack of a maintenance program was 

consistent with Mitchell's testimony: "Well, we felt that after looking at the way the operator ... 

was doing their maintenance work, that all they were doing was what we call patch 

maintenances. If something happened they would fix it, but as far as trying to prevent something 

from happening, they weren't doing any form of that type of work." Tr. 129-30. 

Although Reading Anthracite introduced evidence that it performed regular maintenance 

on its trucks, and that it had serviced the Euclid 671 's brakes approximately 80 operating hours 

before the accident (Tr. 321 ), it failed to document with any clarity or exactitude whether the 

Euclid 671 truck in which Chattin died had been regularly maintained according to any such 

schedule. See Tr. 124-25 (Mcintyre's testimony that Reading Anthracite was unable to produce 

for MSHA any records of preventive brake maintenance performed on the Euclid 671 truck). 

32 FMSHRC Page 403 
This is particularly and most significantly true, as I explain further below, with respect to the 

company's 500-hour check, which Shellhammer testified is when ''they do [the] transmission ... 

they look at lines and they see if there's any leaks or anything like that that we fix before it goes 

back out." Tr. 253-55. Eugene Hennen, an MSHA mechanical engineer who assisted in the 

investigation of the accident, by referencing the Euclid 671 Manual's section on Transmission 

Lines and Fittings, explained that the truck manufacturer advises an operator ''to inspect the 

hoses for cracks and deterioration and inspect for damages and replace if necessary," and that this 

should have been done "[p]robably about every 100 hours." Tr. 170, 187-90. No such 

inspections were performed by Reading Anthracite. In Hennen's opinion, had the company 

adhered to such a maintenance schedule for the transmission of the Euclid 671, the hazard that 

led to the accident would have been prevented. Tr. 190. Hennen further emphasized that "a 

complete check of the machine" should have been performed because the truck had sat idle for 

approximately three months, during which time seals and hoses could have deteriorated. 

Tr. 191-93.2 

As for routine checks performed by the drivers before operating the trucks, although 

Reading Anthracite required that its drivers perform pre-operational inspections, even Mitchell, 

Reading Anthracite's own mechanic, questioned the thoroughness of such inspections. Drivers, 

he stated, "would maybe walk around and glance at the truck, but I've never actually seen one do 

a complete check." Tr. 31-32. Indeed, the parties stipulated that neither Chattin, on the day of 

the accident, nor the last driver to have used the truck before the accident, completed a Driver 

Inspection Report. See Stip. 16, 19. From this, I infer that Reading Anthracite was, at best, lax 

in enforcing its pre-operational inspection policy. 

MSHA concluded that the accident that led to Robert Chattin's death occurred because 

on the Euclid 671 truck, the transmission retarder failed and the condition of the brakes was 

"compromised." Tr. 175. I find that the failure of the transmission, and particularly the retarder, 

was the primary cause of the accident. 3 After the accident, a hole approximately 1 inch in 

diameter was discovered in a transmission hose. Tr. 185; Ex. G-33. Inspector Mcintyre testified 

that the ruptured hose ''was rubbing against another hose," and that the rupture "occurred before 

the accident," which was apparent "[f]rom the way it was rubbing on the other hose." 

Tr. 127-28. Shellhammer agreed that the hose ruptured before the accident. Tr. 277. Mcintyre 

opined that Chattin "made four previous trips and had no trouble, so the hose must have been 

2 In light of the overwhelming weight of the evidence to the contrary, I discredit 

Shellhammer' s testimony that Reading Anthracite made "sure that the machines [were] taken 

care. of by what the.manual says." Tr. 251. 

3 A transmission retarder is a.ii auxiliary braking device that, when activated by the 

driver, applies a retarding (or slowing) force to the vehicle without the use of friction. Retarders 

are used to keep friction brakes cool so that ''they are ready to respond to panic stop conditions, 

and stopping distances are greatly reduced." WILLIAM C. PETERS, FIRE APPARATUS PURCHASING 

HANDBOOK 155 (1994). 

32 FMSHRC Page 404 
okay up until that point. It was on the last trip when the hose failed thatthe truck got into 

trouble." Tr. 128. David Imschweiler, a maintenance supervisor at Reading Anthracite, testified 

that on the morning of December 6, 2005, Chattin waved him down to tell him that the Euclid 

671 had run out of gas. Tr. 313-14. Imschweiler arranged to have the truck refueled, which also 

necessitated the installation of new fuel filters, which he also supervised. Tr. 316. Although the 

filters were replaced close to where the transmission hose ruptured, Imschweiler did not see any 

leaking of transmission fluid. Tr. 317. According to MSHA fuvestigator Hennen, the Euclid 671 

transmission's fluid capacity was approximately 30 gallons and after the accident, the truck's 

transmission held less than 5 gallons. Hennen testified that low oil pressure in the transmission 

led tothefailureoftheretarder. Tr.176-77. 

Based on the record in its entirety, I make the following findings: (1) the transmission 

hose on the Euclid 671 ruptured as Chattin made his last trip; (2) the hose had worn over time as 

a result of rubbing against another hose; and (3) when the hose ruptured, the transmission lost 

approximately 85 percent of its oil, which, in tum, led to the failure of the retarder to operate. 

The effect of the loss of the retarder was catastrophic. As Edward Mitchell explained, Chattin 

"needed the transmission. He needed his retarder. Without the oil he had no retarder, he had no 

transmission. . . . We wouldn't be having [this] conversation if that hole wasn't there." Tr. 40. 

On his final trip, Chattin attempted to engage the retarder: ''The retarder lever was on," Mitchell 

explained (Tr. 56), but it failed and the truck ran out of control on a steep downgrade and 

overturned as the road leveled out and ended at an embankment. Tr. 74-75, 79. 

I note that Mitchell stated that, "he had no transmission." Tr. 40. This may explain one 

circumstance for which none of the witnesses had any explanation, i.e., that the truck was in sixth 

gear after the accident. Mitchell testified that, at the time of the accident, the truck was, in fact, 

in sixth gear, indicating that it was traveling fast, and that customarily, a driver would not travel 

downhill in six~ gear. Tr. 45-46. Shellhammer also observed that the truck was in sixth gear 

after the accident. When asked whether the gear shift "could have been knocked into that 

position in the accident," he explained that it could not simply be pushed into gear. Shellhammer 

said that he "didn't know why it would be in sixth gear because that's the highest gear and you're 

going as fast as you can go. . . . I would never use it coming downhill, no. You'd use your low 

gears coming downhill." Tr. 269-70. Given the general downhill grade of the road on which 

Chattin was traveling, he had no reason to have the truck in sixth gear. Tr. 271-72. As Mitchell 

pointed out, however, "he had no transmission." I find it reasonable to infer that, in a frantic 

effort to operate the truck's transmission, Chattin somehow forced the gear shift into sixth gear, 

then was unable to move it any further. This only made Chattin's situation more dire, as it 

allowed the truck to travel at an ever higher speed, thereby placing an ever greater strain on the 

only element slowing the truck down - - its brakes. 

I find that the brakes on the truck, while not in the best repair, were in satisfactory enough 

condition to stop the truck under normal operating conditions. See Stip. 11-13. Both Mitchell 

and Shellhammer testified that the truck's brakes were working. Tr. 51, 258-59. Shellhammer 

:further explained that, after the accident, the truck's "brakes were all locked up," and that it took 

32 FMSHRC Page 405 
a piece of heavy equipment to move the truck. Tr. 258. However, Chattin operated the Euclid 

671 on that last trip under far from normal operating conditions, given that the retarder and, 

indeed, the entire transmission, had failed. He apparently did his best to stop the truck by using 

the brakes alone. When Mitchell arrived at the scene of the accident, the truck was still running 

and the "brakes were hot and they smelled." Tr. 37. Under the circumstances, however, the 

brakes were not able to do the job. 

Mcintyre offered his opinion that "if all the brakes had been working properly, even 

though the hose failed going to the retarder, the truck [would have been] capable of stopping." 

Tr. 111. In light of the fact that the brakes were "locked up" after the accident, and a heavy piece 

of machinery had to be used to move the truck, I am not convinced that Mcintyre's opinion is 

well founded. However, it is undisputed that the brakes were not in good repair. The right front 

brake was not operating at all because the brake line was plugged with a piece of rubber; rust 

found on the brake after the accident was further evidence that it had not been functioning. 

Tr. 39, 108-09, 194-96, 302. Grease and oil contaminating the left front brake diminished its 

braking capacity. Tr. 108, 199, 303. Wear on the rear brake drums also diminished their braking 

capacity. Tr. 38, 110, 202-03, 256, 335-36. In light of these facts, I find that the condition of the 

brakes on the Euclid 671 contributed to the accident, although, in terms of causation, the inability 

of the brakes to stop the truck was secondary to the far more serious failure of the truck's 

transmission. 

A. Citation No. 7008313 

Section 104(a) Citation No. 7008313 alleges that Reading Anthracite failed to perform an 

adequate pre-operational inspection of the Euclid 671 truck that overturned on December 6, 

2005, in violation of30 C.F.R. § 77.1606(a).4 In light of my finding that neither Chattin nor any 

other Reading Anthracite employee performed a pre-operational inspection of the Euclid 671 

truck that Chattin drove on December 6, 2005, I conclude that Reading Anthracite violated 

section 77.1606(a). See also Stip. 19 (no pre-operational inspection performed on the truck on 

September 14, 2005, the last time it was operated before December 6, 2005). 

The Secretary further alleges that the violation occurred as a result of Reading 

Anthracite's moderate negligence. According to the Secretary's civil penalty criteria, found at 30 

C.F .R. Part 100, a mine operator is moderately negligent when it "knew or should have known of 

the violative condition or practice, but there are mitigating circumstances." Sec'y Br. at 14 

(quoting 30 C.F.R. § 100.3(d)) (emphasis added). In light of Mitchell's testimony that drivers 

rarely, if ever, performed complete pre-operational inspections {Tr. 31-32), and my finding that 

Reading Anthracite was lax in ensuring that such inspections were regularly performed, I find 

that no mitigating circumstances exist that would justify ascribing a moderate degree of 

4 30 C.F.R. § 77.1606(a) provides: "Mobile loading and haulage equipment shall be 

inspected by a competent person before such equipment is placed in operation. Equipment 

defects affecting safety shall be recorded and reported to the mine operator." 

32 FMSHRC Page 406 
negligence to Reading Anthracite for this violation. Indeed, the Secretary's arguments point to 

no such circumstances. 

Had Chattin known that the company expected and required him to adequately inspect the 

truck that he was about to drive, especially in light of the fact that it had been sitting idle for 

almost three months, it is very likely that he would have found that a critical transmission hose 

had begun to show wear and needed to be replaced. David Imschweiler, who supervised the 

replacement of fuel filters on the truck on the day of the accident, testified that the transmission 

hose that ruptured ''was probably close, right above my head, within a couple inches or feet, 

because I was underneath the transmission watching them put the fuel filters on the truck." 

Tr. 317. I also note Hennen's testimony that, consistent with the Euclid 671 manual, Reading 

Anthracite should have performed a thorough inspection of the truck, including inspecting the 

transmission hose, because it had been idle for so long. Tr. 187-90. From this, I infer that the 

transmission hose would have been either visible or accessible, and its defects apparent, had 

Chattin been directed to perform a thorough inspection of the truck before operating it. In light 

of these circumstances, I find Reading Anthracite highly negligent for failure to ensure that 

Chattin perform a thorough inspection. 

Inspector Mcintyre determined that the gravity of the violation was "significant and 

substantial" ("S&S"). The S&S terminology is taken from section 104(d)(l) of the Act, which 

distinguishes as more serious any violation that is "of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine or safety hazard." 

30 U.S.C. § 814(d)(l). A violation is properly designated 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 of a reasonably serious nature." Cement Div., Nat 'I Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., the Commission set forth four criteria that the Secretary must 

establish in order to prove that a violation is S&S under National Gypsum: 1) the underlying 

violation of a mandatory safety standard; 2) a discrete safety hazard - - that is, a measure of 

danger to safety - - contributed to 1JY the violation; 3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and 4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 6 FMSHRC 1, 3-4 (Jan. 1984 ); see also Buck Creek Coal, 

Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), affg 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). 

Evaluation of the third criterion, the reasonable likelihood ofinjury, should be made in the 

context of"continued mining operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 

1984). Moreover, resolution of whether a violation is S&S must be based "on the particular facts 

surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501(April1998); Youghiogheny-

& Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

Applying the Mathies criteria, I have found a violation and that, but for Reading 

Anthracite's failure to direct Chattin to perform a thorough inspection of the Euclid 671 truck 

before driving it on December 6, 2005, Chattin would have discovered the worn transmission 

32 FMSHRC Page 407 
hose that ultimately ruptured and caused the transmission to fail. As I have already found, the 

failure of the transmission was the primary cause of the accident that killed Chattin. 

Accordingly, I find that the violation was S&S. 

B. Citation No. 7008315 

Section 104( d)(l) Citation No. 7008315 alleges that Reading Anthracite failed to equip 

the Euclid 671 truck with adequate brakes, in violation of30 C.F.R. § 77.1605(b).5 I have 

already found that, although the brakes on the Euclid 671 were in poor repair, they were adequate 

under normal driving conditions. This is further supported by the fact that Chattin made four 

haulage trips and apparently experienced no problems with the brakes before the transmission 

failed. Tr. 328. However, when the transmission failed, the brakes proved inadequate, despite 

Chattin's efforts to stop the truck by applying them. See Tr. 37. As I have noted, when Chattin's 

truck careened out of control, the driving conditions that he encountered were anything but 

normal. Section 77. l 605(b ), however, draws no distinction between normal and abnormal 

driving conditions. The regulation simply requires that brakes be "adequate." Because, under 

the circumstances of this case, the brakes were inadequate, I conclude that Reading Anthracite 

violated section 77. l 605(b ). 

Respecting the gravity of the violation, I agree with the Secretary. I have found that the 

condition of the brakes contributed to a fatal accident. Accordingly, I find that the violation was 

S&S. 

The Secretary argues that Reading Anthracite failed to make any effort to inspect the 

brakes on the Euclid 671 "on a regular basis," and that this "demonstrates a reckless disregard of 

its obligations to maintain those brakes in adequate working condition and justifies the 

classification of this citation as 'unwarrantable.'" Sec'y Br. at 19. The unwarrantable failure 

terminology is taken from section 104( d) of the Mine Act, and refers to more serious conduct by 

an operator in connection with a violation. 30 U.S.C.§ 814(d). In Emery Mining Corp., the· 

Commission determined that unwarrantable failure is 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; Rochester & Pittsburgh Coal Co., 

13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 

(7th Cir. 1995) (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist, 

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

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

5 30 C.F.R. § 77.1605(b) provides, in relevant part: ''Mobile equipment shall be 

equipped with adequate brakes." 

32 FMSHRC Page 408 
the operator's efforts in abating the violative condition, whether the violation is obvious or poses 

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

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 

20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); 

Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); BethEnergy 

Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 

709 (June 1988). All of the relevant facts and circumstances of each case must be examined to 

determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 

22 FMSHRC at 353. 

I conclude that the violation was not caused by Reading Anthracite's unwarrantable 

failure to comply with the standard. The record does not support the Secretary's contention that 

the company performed no preventive maintenance whatsoever on the Euclid 671 's brakes. On 

the contrary, David Imschweiler testified that the truck's brakes had been serviced approximately 

80 operating hours before the accident. Tr. 321. Furthermore, as I have already noted, Chattin 

did not report any problems with the brakes on the day of the accident. See Tr. 328. In light of 

these facts, and my finding that the brakes were adequate for normal driving conditions, I find 

that the Secretary has failed to establish the requisite aggravating factors that would support a 

fmding of unwarrantable failure. Given that I have found that the condition of the brakes 

contributed to the accident, I, nevertheless, find Reading Anthracite's violation of section 

77. l 605(b) to have occurred as the result of the company's negligence. As to the degree of 

negligence, I have already noted several mitigating factors, including that the brakes operated 

adequately until the transmission failed, and that the brakes were serviced 80 operating hours 

before the accident. Accordingly, I ascribe to Reading Anthracite a moderate degree of 

negligence with respect to this violation. 

C. Ord~r No. 7008316 

Section 104(d)(l) Order No. 7008316 alleges that Reading Anthracite failed to maintain 

the Euclid 671 truck in safe operating condition, in violation of30 C.F.R. § 77.404(a).6 Unlike 

the preceding violation, in considering the Secretary's allegations, I must consider the truck as a 

whole, specifically, how its operating condition on December 6, 2005, was affected by Reading 

Anthracite's maintenance policies and practices. Having reviewed the record, and consistent 

with my previous findings, I find that when Chattin began his haulage trips that day, he was 

driving a ticking time-bomb. The truck had become the instrumentality ofChattin's death, as it 

laid idle for almost three months and, when brought back into service, instead of defusing the 

bomb, Reading Anthracite allowed its timer to commence tolling the minutes leading to 

catastrophe. Reading Anthracite allowed this to happen because the company had a woefully 

6 30 C.F.R. § 77.404(a) provides: "Mobile and stationary machinery and equipment shall 

be maintained in safe operating condition and machinery or equipment in unsafe condition shall 

be removed from service immediately." 

32 FMSHRC Page 409 
inadequate preventive maintenance program. Standard operating procedure at the Wadesville 

P-33 mine was for truck drivers to operate their rigs and report any problems they encountered. 

In essence, Reading Anthracite turned its drivers into human guinea pigs that the company relied 

upon to test whether its trucks were in safe operating condition. This amounted to a grievous 

violation of section 77.404(a), one that led inexorably to the death of Robert Chattin, and one 

that involved unconscionably gross negligence. 

To summarize the facts that lead me to this conclusion, I first point to Edward Mitchell's 

testimony that Reading Anthracite had no regular preventive maintenance program. When 

MSHA Inspector Mcintyre asked Reading Anthracite for a schedule of preventive maintenance 

procedures, the company was unable to produce one. I credit Mcintyre's compelling testimony 

that Reading Anthracite relied upon patch maintenance. Furthermore, the Euclid 671 manual 

advises operators to inspect the transmission hoses for damage on a regular basis and replace 

them, if necessary. Tr. 187-89. Reading Anthracite's performance in this regard failed 

miserably, especially in light of the fact that the truck had not been operated for a prolonged 

period. Tr. 190-93.7 

Accordingly, I find that Reading Anthracite violated section 77.404(a}, that the violation 

was S&S, and that it occurred as a direct result of Reading Anthracite's unwarrantable failure to 

comply with the requirements of the regulation. 

D. Order No. 7008317 

The parties agree that Chattin was not wearing a seatbelt at the time of the accident, and 

have stipulated that Reading Anthracite violated 30 C.F .R. § 77 .171 O(i}, which requires the use 

of seatbelts "in a vehicle where there is a danger of overturning and where roll protection is 

provided." ,See Stip. 14. The parties also have stipulated that "Chattin's failure to wear a seat 

belt ... contributed to the fatal nature" of the accident and, therefore, agree, in essence, that the 

violation was properly designated S&S. See Stip. 15. The sole issue before me is whether the 

Secretary had sufficient grounds for determining that the violation was due to Reading 

Anthracite's unwarrantable failure. 

I have not yet addressed the specific circumstances surrounding this violation. Beyond 

the stipulated fact that Chattin was not wearing a seatbelt when the truck that he was driving 

overturned, having reviewed the record, I make several findings. 

Reading Anthracite's Safety Guidelines include a provision mirroring section 77.171 O(i}, 

requiring that seat belts be worn in any vehicle where there is a danger of overturning and where 

7 Although Shellhammer testified that "at 500 hours, they do [the] transmission ... [to] 

look at lines and they see if there's any leaks or anything like that," Reading Anthracite adduced 

no evidence showing that any such maintenance had ever been performed on the subject Euclid 

671 truck. See Tr. 253-55. 

32 FMSHRC Page 410 
roll protection is provided. Ex. R-9. The company enforced this policy during safety meetings 

that were held approximately once every other month, by reminding its drivers to wear seat belts. 

Tr. 236-37. Reading Anthracite's safety director, Stanley Wapinski, told of one driver, Bill Zack, 

who objected to wearing a seat belt because he thought it "would be safer being able to jump out 

without a seatbelt." Wapinski testified that he "reminded [Zack] of the movies that he saw at the 

training and what could actually happen to him if he got thrown out of the truck or jumped out of 

the truck and the truck rolled on him," after which Zack never again questioned the company 

policy. Tr. 238-39. For drivers operating Euclid 671 trucks, Reading Anthracite's policy was 

difficult to enforce beyond such reminders because, given that the cabs of these· trucks are 

approximately 12-15 feet off the ground, it would be physically impossible to observe whether a 

driver was wearing a seat belt while driving. Tr. 238. 

MSHA Inspector Mcfutyre testified that not all drivers wore seat belts all the time, but I 

find that his testimony on this point was speculative. Tr. 134, 163-64. His conclusion that the 

company was "not following their own procedures" was equally speculative. Tr. 136. I lack a 

basis upon which to infer, as the Secretary suggests, that because Reading Anthracite never 

disciplined anyone for not wearing a seat belt, the company failed to enforce the policy. Sec'y 

Br. at 24 (citing Tr. 241-43). The only fault I find in Reading Anthracite's enforcement ofits 

seat belt policy is that reminders were given just once every two months. The company failed to 

introduce any evidence showing that greater efforts were made to ensure that its drivers were 

constantly reminded of the necessity to use seat belts, such as signage in the cabs of the trucks. 

This is not to suggest that this violation involved anything less than a very high degree of 

negligence. The negligence was Chattin's, however, not Reading Anthracite's. It is well settled 

that the negligence of a rank-and-file miner is not imputable to an operator for the purposes of 

penalty assessment or unwarrantable failure determinations. Whayne Supply Co., 19 FMSHRC 

447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cul/or, Inc., 17 FMSHRC 1112, 1116 (July 

1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). Furthermore, there is 

nothing in the record _to suggest that Chattin was anything other than a rank-and-file miner. I, 

thus, conclude that the violation was not caused by Reading Anthracite's unwarrantable failure to 

comply with section 77.l 710(i). fu light of my finding that Reading Anthracite's enforcement of 

its policy lacked vigor, I ascribe to the company a moderate degree of negligence. 

· III. Penalty 

A. Section 11 O(i) Criteria 

While the Secretary has proposed a total civil penalty of $88,600.00, the judge must 

independently determine the appropriate assessment by proper consideration of the six penalty 

criteria set forth in section 1 lO(i) of the Act, 30 U.S.C. § 8200). See Sellersburg Co., 

5 FMSHRC 287, 291-92 (Mar. 1993), aff'd, 763 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, I find that Reading Anthracite is a medium-sized operator, 

with a history of prior violations that is not an aggravating factor in assessing an appropriate 

32 FMSHRC Page 411 
penalty. Stip. 5-6; Ex. G-35. As stipulated by the parties, the total proposed penalty will not 

affect Reading Anthracite's ability to continue in business, and the company demonstrated good 

faith in achieving rapid compliance after notice of the violations. Stip. 7-8. The remaining 

criteria involve consideration of the gravity of the violations and Reading Anthracite's 

negligence in committing them. These factors have been discussed fully respecting each citation 

and order. Therefore, considering my findings as to the six penalty criteria, the penalties are set 

forth below. 

B. Assessment 

1. Citation No. 7008313 

The Secretary has established a very serious violation of30 C.F.R. § 77.1606(a). 

Although she has alleged that the violation was due to Reading Anthracite's moderate 

negligence, I find the operator's negligence to be high. The Secretary petitioned the Commission 

to assess a penalty of $9,100.00 for this violation. Applying the civil penalty criteria, and in 

consideration of my finding of high negligence, I find that a penalty of$12,000.00 is appropriate. 

2. Citation No. 7008315 

The Secretary has established a very serious violation of 30 C.F.R. § 77.1605(b). 

However, she has failed to establish that the violation was due to Reading Anthracite's 

unwarrantable failure. I find that the violation was due to Reading Anthracite's moderate 

negligence. The Secretary petitioned the Commission to assess a penalty of $26,500.00 for this 

violation. Applying the civil penalty criteria, and in consideration of my findings as to Reading 

Anthracite's negligence, I find that a penalty of $8,500.00 is appropriate. 

3. Order No. 7008316 

The Secretary has established a very serious violation of30 C.F.R. § 77.404(a), and that it 

was due to Reading Anthracite's unwarrantable failure. She petitioned the Commission to assess 

a penalty of $26,500.00 for this violation. Applying the civil penalty criteria, and in 

consideration of my findings~ to Reading Anthracite's unconscionably gross negligence, I find 

that a penalty of $50,000.00 is appropriate. 

4. Order No. 7008317 

The parties stipulated that Reading Anthracite violated 30 C.F.R. § 77.1710, and that the 

violation was S&S. However, the Secretary has failed to establish that the violation was due to 

Reading Anthracite's unwarrantable failure. Instead, I find that the violation was due to Reading 

Anthracite's moderate negligence. The Secretary petitioned the Commission to assess a penalty 

of $26,500.00 for this violation. Applying the civil penalty criteria, and in consideration of my 

findings as to Reading Anthracite's negligence, I find that a penalty of$8,500.00 is appropriate. 

32 FMSHRC Page 412 
ORDER 

Accordingly, it is ORDERED that Order No. 7008316 is AFFIRMED, as issued, that 

the Secretary MODIFY Citation No. 7008315 and Order No. 7008317 to citations issued under 

section 104(a) of the Act with a "moderate" degree of negligence, Citation No. 7008313 to 

increase the degree of negligence to "high," and that Reading Anthracite Company PAY a civil 

penalty of $79,000.00 within 30 days of this Decision. Accordingly, this case is DISMISSED. 

~A~ Administrative Law Judge 

Distribution: (Certified Mail) 

Adam F. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The 

Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C., 450 West Market St., P.O. Box 450, 

. Pottsville, PA 17901 

/sdb 

32 FMSHRC Page 413 
32 FMSHRC Page 414 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

WASHINGTON,D.C. 20001 

ABUNDANCE COAL, INC., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

March 10, 2010 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

DOCKET NO. EAJ 2010-01 

Formerly KENT 2010-5-R 

KENT 2020-6-R 

Mine ID 15-18711 

No. 1 Mine 

DECISION ON LIABILITY/ 

ORDER TO SUPPLEMENT THE RECORD 

This case is before me upon a Motion for Fees and Costs filed by Abundance Coal, Inc. 

(Abundance) pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 the "Act", and the 

Commission's implementing regulations at 29 C.F.R. § 2704. 

Abundance was the prevailing party in an expedited contest proceeding, Abundance Coal, 

Inc., 31FMSHRC1241(Oct.2009) (ALJ). The citation at issue therein alleged anon-"significant 

and substantial" violation of the standard at 30 C.F.R. § 75.336(c)--which is applicable to sealed 

mine atmospheres with seals of less than 120 psi strength and requires the withdrawal of miners 

when certain action levels of methane and oxygen are found in the sealed atmosphere. In my 

decision, I found that the language of the cited standard was "perfectly clear" and that because 

Abundance was using seals of 120 psi strength separating its workings from the sealed atmosphere 

at issue, Sectio~ 75.336(c) was, in effect, inapplicable. Accordingly, the citation and related 

"Section 104(b)" order were vacated. I also noted in my decision that the Secretary (through her 

designated agent, the District Manager) had, consistent with the cited standard, previously approved 

Abundance's plan (alternate seal sampling plan-ventilation plan revision) which permitted 

Abundance to not sample behind its 120 psi seals. 

On December 23, 2009, Abundance moved for attorney fees and costs associated with the 

underlying case in the amount of $13,911.59. Abundance also submitted its financial statement, 

itemized statements for attorney fees, expert fees, and costs, and a petition for attorney fees at $17 5 

per hour. On January 22, 2009, the Secretary filed her response to Abundance's motion and, on 

February 2, 2010, Abundance filed its reply to that response. 

The Equal Access to Justice Act provides as follows: 

An agency that conducts an adversary adjudication shall award, to a prevailing party 

other than the United States, fees and other expenses incurred by that party in 

connection with that proceeding, unless the adjudicative officer of the agency finds 

32 FMSHRC Page 415 
that the. position of the agency was substantially justified or that special 

circumstances make an award unjust. Whether or not the position of the agency was 

substantially justified shall be determined on the basis of the administrative record, 

as a whole, which is made in the adversary adjudication for which fees and other 

expenses are sought. 

5 U.S.C. § 504(a)(l) 

The Commission's regulations similarly provide that: 

[A] prevailing applicant may receive an award of fees and expenses incurred in 

connection with a proceeding . . . unless the position of the Secretary was 

substantially justified .... The burden of proof that an award should not be made to 

a prevailing applicant because the Secretary's position was substantially justified is 

on the Secretary, who may avoid an award by showing that his position was 

reasonable in law and fact. 

29 C.F.R. § 2704.IOS(a) 

There is no dispute that the previous litigation was an "adversary adjudication" under 29 

C.F.R. § 2704.103, that Abundance was the prevailing party in the previous litigation as defined in 

29 C.F.R. § 2704.104 and that Abundance meets the definition of a "party" under the Act. 

Therefore, the only issue to be determined regarding the issue of liability is whether the Secretary 

has met her burden of proving that her position at trial was substantially justified. 

In support ofits motion, Abundance argues that the Secretary's position was not substantially 

justified for two reasons. First, that the plain language of 30 C.F .R. § 75.336( c) provides that it only 

applies where the seals are of less than 120 psi strength and the seals at issue were of 120 psi 

strength. Abundance asserts, therefore, that the regulation is not applicable. Abundance argues, 

secondly, that because the Secretary had previously approved Abundance's ventilation plan, which 

explicitly stated that Abundance would not be sampling behind its 120 psi seals, the Secretary's 

position at trial was contradictory and, implicitly, . the Secretary was, for this additional reason, 

without justification to have cited Abundance for not sampling behind those very same seals. 

The Secretary asserts that her position at trial was reasonable, both in law and in fact, and that 

she was substantially justified under the circumstances. She first argues that because the case 

presented a novel issue of first impression under a fairly new regulatory requirement, there was no 

prior case law available. As previously noted however, the language of the cited standard is 

"perfectly clear" on its face and therefore needs no interpretive "case law". I find that the Secretary's 

attempt to ignore a cardinal rule of regulatory construction was clearly without justification. I find, 

moreover, that the so-called novel issue of first impression was solely the creation of the Secretary's 

imagination and is without rational connection to the plain meaning of the cited standard. 

The Secretary also argues that her position was substantially justified based on the facts 

presented--namely, that the abandoned workings had once been under a single legal identity and that 

32 FMSHRC Page 416 
a "Section 103(k)" order had been issued in 2006 for all three mines. These factors are, however, 

without relevance to the narrow issue presented in the underlying case i.e. whether Abundance 

violated 30 C.F.R. § 75.336(c) as charged. 

The Secretary next argues that her actions were justified because the situation presented was 

very serious. The Secretary, however, clearly contradicts herself in this regard by having issued the 

citation as not "significant and substantial". Even assuming, argu,endo, that the situation was as 

serious as the Secretary now alleges, that is no justification to misapply a safety standard. Indeed, 

there are appropriate remedies, such as "imminent danger" withdrawal orders, available in the case 

of very serious safety hazards. 

Finally, with regard to Abundance's assertion that the Secretary's prior approval of its 

ventilation plan revision made the Secretary's position unjustified, the Secretary suggests, but 

without any supportive evidence, that the approval of the ventilation plan revision may have been 

in error. The credibility of this "suggestion" is also clearly at issue, moreover, since there is no 

evidence that the Secretary attempted to modify or rescind the ventilation plan in this regard. This 

further suggests that the Secretary's position was indeed without justification. 

Under all the circumstances, I find that I am in agreement with Abundance's position and 

find that the Secretary has failed to have met her burden of proving that her position in the 

underlying proceeding was substantially justified. I find, accordingly, that Abundance is entitled to 

an award under the Equal Access to Justice Act. 

Fees and Expenses 

Abundance has failed in its motion to comply with the second sentence of 29 C.F.R. § 

2704.201(d) and in part, with the second sentence of29 C.F.R. § 2704.205. Similarly, the Secretary 

has failed in heri:esponse to support her factual allegations as required by 29 C.F. R. § 2704.203(c) 

Accordingly, no final decision can be rendered at this time regarding the issue of fees and expenses 

and the parties are directed to file, within 30 days, documentation necessary to comply with the 

aforesaid regulatory provisions. 

. A~. n-, n 

Gary \lick ·~~· :\ ~ . 

A:t;jttiveu·w\udge 

(202 4 -9977 / 

I . 

32 FMSHRC Page 417 
Distribution:(Certified Mail) 

Billy R. Shelton, Esq., Jones, Walters, Tum.er & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 

310, Lexington, KY 40509 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

/lh 

32 FMSHRC Page 418 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALEX ENERGY, INC., 

Respondent 

March 17, 2010 

CNIL PENALTY PROCEEDINGS 

Docket No. WEVA2007-742 

A.C. No. 46-07165-122306-01 

Docket No. WEVA 2007-743 

A.C. No. 46-07165-122306-02 

North Surface Mine 

Docket No. WEVA 2007-821 

A.C. No. 46-08838-124903 

Superior Surface Mine 

NOTICE OF HEARING SITE 

The captioned civil penalty proceedings are scheduled for hearing on April 7, 2010. The 

initial Prehearing Order in these matters, issued on July 14, 2009, required the parties to engage 

in, and complete, settlement negotiations by September 25, 2009. As the September 25, 2009, 

settlement deadline approached, the parties made repeated representations that they 

were continuing· to negotiate with the anticipation of reaching an agreement. Today, 

on March 17, 2010, the respondent's counsel advised my office, via email, that the parties 

''reached a settlement -agreement in principle" with respect the citations contained in 

Docket No. WEV A 2007-7 42. However, to date, no motions for the approval of settlement 

have been filed in any of the captioned proceedings. 

fu view of the above, given ·the Commission's unprecedented workload, the hearing in 

these matters will proceed as scheduled at 9:00 a.m., on Wednesday, April 7, 2010, 

at Commission headquarters. No requests for continuance will be favorably entertained. 

Any motions for the approval of settlement of these matters must be received in my office 

on or before March 31, 2010, by facsimile or regular mail. Any settlement agreement after 

March 31, 2010, must be presented by the parties for my approval on the record at the 

scheduled hearing. The failure of either party to appear at the hearing will result in the entry of a 

dismissal order or default judgment. 

32 FMSHRC Page 419 
The hearing location is: 

The Richard V. Beckley Hearing Room 

Suite 9500 - Ninth Floor 

601 New Jersey Ave, NW 

Washington, DC 20001 

Any person who plans to attend this hearing and requires special accessibility features 

and/or any auxiliary aids, such as sign language interpreters, must request them in advance 

(subject to the limitations set forth in§ 2706.160{d)). 

Distribution: (Facsimile and Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Richard D. Hosch, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

100 Bluestone Road, Mt. Hope, WV 25880 

Max L. Corley, ill, Esq., Curtis Capehart, Esq., Dinsmore & Shohl, LLP, P .0. Box· 11887, 

900 Lee Street, Suite 600, Charleston, WV 25339 

/rps 

32 FMSHRC Page 420 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

BILL SIMOLA, employed by 

UNITED TACONITE, LLC, 

Respondent 

April 6, 2010 

CNIL PENALTY PROCEEDING 

Doc,lcet No. LAKE 2010-128-M 

A.C. No. 21-03404-201338 A 

United Plant 

Mine ID 21-03404 

ORDER DENYING RESPONDENT'S 

MOTION TO DISMISS FOR LACK OF JURISDICTION 

On October 1, 2008, 104(d)(l) Citation No. 6407901 and 104(d)(l) Order No. 6407902 

were issued to United Taconite, LLC ("United Taconite"). Citation No. 6407901 was issued 

for an alleged violation of the mandatory safety standard in 30 C.F.R. § 56.11001. This standard 

requires that a safe means of access shall be provided and maintained to all working places. 

Order No. 6407902 was issued for an alleged violation of the mandatory safety standard 

in 30 C.F.R. § 56.4107(a). This standard provides that moving machine parts shall be guarded 

to protect persons from moving parts that can cause injury. 

At issue .is a Petition for Assessment of Civil Penalties filed on December 21, 2009, 

by the Secretary of Labor ("the Secretary"), pursuant to the provisions section 110( c) of the 

Federal Mine Safety and Health Act of 1977 ("the Mine Act"). The petition seeks to impose 

personal liability against Bill Simola, as an agent of United Taconite, for the violations alleged in 

Citation No. 6407901 and Order No. 6407902. Section 1 lO(c) of the Mine Act provides, in 

pertinent part: 

Whenever a corporate operator violates a mandatory health or safety 

standard ... , any director, officer, or agent of such corporation who 

knowingly authorized, ordered or carried out such violation, ... shall be 

subject to the same civil penalties, fines, and imprisonment that may be 

imposed upon a person under subsections (a) and (d) of this section. 

30 U.S.C. § 820(c). 

32 FMSHRC Page 421 
Simola is employed as the Pellet Plant Coordinator at the United Plant operated by 

United Taconite, a limited liability company ("LLC") organized under the laws of the State of 

Delaware. As a general proposition, a LLC, first recognized in 1977 by the State of Wyoming, 

is a hybrid business structure that is taxed as a partnership while benefitting from the personal 

liability shield afforded to employee agents of corporations. Secy Interpretive Bulletin, 

71 Fed. Reg. 38902. 

On February 26, 2010, Simola filed a Motion for Summary Decision asserting that 

section 110( c) of the Mine Act should be narrowly construed to limit personal liability only to 

agents of corporate mine operators. As United Taconite is a limited liability company, 

authorized under a Certificate of Formation filed with the Office of the Delaware Secretary of 

State in the Division of Corporations, Simola argues that he is not subject to personal liability 

under section l lO(c) of the Act. I construe Simola's motion as a motion to dismiss. 

The Secretary filed her opposition to Simola's motion on March 22, 2010. 

The Secretary's opposition primarily relies on her July 10, 2006, Interpretive Bulletin regarding 

section 110( c) of the Mine Act as it relates to agents of LLCs. Id. The relevant history of LLC 

entities noted in the bulletin is not disputed by Simola. Although LLCs were first recognized in 

1977, LLCs did not achieve significant popularity until 1988, when the Internal Revenue Service 

announced that LLCs could be taxed as partnerships despite their limited corporate-like liability. 

Id. fu recent years, the number of mine operators doing business as LLCs has significantly 

increased. According to Mine Safety and Health Administration (MSHA) records at least 

10 percent of mine operators now identify themselves as LLC business entities. Id. 

The Secretary asserts that LLCs should be treated the same as corporate mine operators 

because both business structures enjoy the benefits of shielding personal liability. Since LLCs 

were first repognized and have become popular as business entities after section 110( c) of 

the Mine Act was promulgated, the Secretary contends that the reach of the provisions of 

section 110( c) that limit personal liability to agents of corporations can be reasonably interpreted 

to extend to agents of limited liability companies. 

Findings and Conclusions 

At the outset, I note that the first inquiry in statutory construction is ''whether Congress 

has directly spoken to the precise question at issue." Chevron, US.A., Inc., v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842 (1984), Thunder Basin Coal Co., 18 FMSHRC 582, 

584 (April 1996). "If the intent of Congress is clear, that is the end of the matter; for the court as 

well as the agency must give effect of the unambiguously expressed intent of Congress." 

Chevron at 842-843. If the statute is silent or ambiguous with respect to the specific issue, the 

question is whether the Secretary's interpretation is based on a reasonable construction and 

application of the statute. Id. at 843. 

32 FMSHRC Page 422 
Here, Congress obviously did not consider the applicability of section 110( c) to agents of 

LLCs because the operation of mines as LLC entities occurred after the legislation was adopted. 

Accordingly, the focus shifts to whether the Secretary's interpretation of section 110( c) is 

reasonable. Generally speaking, the Secretary's interpretation of the enabling statute she is 

authorizedto enforce should be given deference so long as it is consistent with the intent 

of the statutory language, and if the interpretation serves a permissible regulatory function. 

Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 234 (Feb. 1977) (citations omitted). In addition, 

the legislative history of the Act provides that "the Secretary's interpretations of the law and 

regulations shall be given weight by both the Commission and the courts." Id. at 234-35 citing 

S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 637 (1978). 

The Commission has addressed the purpose and intent of the limited personal liability 

provisions of section 110( c) in Donald Guess, 15 FMSHRC 2440 (Dec. 1993 ), a.ff' d sub nom. 

Sec'yofLabor v. Shire!, 52 F.3d 1123 (D.C. Cir. 1995). In Guess, the Commission affirmed the 

dismissal of civil penalty proceedings under section 110( c) against two employees of the 

Pyro Mining Company doing business as a partnership. The Commission noted that unlike 

corporations, agents of partnerships were not shielded from personal liability. Id. at 2442-43. 

The Commission emphasized that: 

The legislative history of section 110( c) of the Mine Act, and its predecessor, 

section 109( c) of the Coal Act, manifests a Congressional intent to proceed 

individually against persons employed by corporate operators "to assure that the 

decision-makers responsible for illegal acts of corporate operators would also be 

held personally liable for violations." 

Id. citing Richardson v. Secretary of Labor, 689 F.2d 632, 633 (6th Cir. 1982), aff'g, Kenny 

Richardson, 3 FMSHRC 8(January1981), cert. denied, 461U.S.928 (1983)(emphasis added). 

See also H.R. Rep. No. 563, 91st Cong., l51 Sess. 11-12 (1969), reprinted in Senate Subcommittee 

on Labor, Committee on Labor and Public Welfare, 94th Congress, 1st Sess., Part I Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969, at 1041-42 (1975). 

Simola, in essence, seeks to differentiate a limited liability company from a corporation 

based on its Internal Revenue Service tax treatment despite the fact that both business entities 

shield agents from personal liability. Thus, Simola relies on a distinction without a difference. 

As the purpose of section 1 IO(c) is to pierce the corporate-like liability shield, the Secretary's 

interpretation that the provisions of section 110( c) apply to agents of mine operators operating 

as both corporate and limited liability companies is manifestly reasonable and consistent with 

the intent of the legislation. In the final analysis, United Taconite is a "limited liability" 

company that has registered in the Division of Corporations in the Office of the Delaware 

Secretary of State. Consequently, it should receive the same coverage as a corporation under 

section l lO(c). 

32 FMSHRC Page 423 
ORDER 

In view of the above, IT IS ORDERED that Simola's motion to dismiss for lack of 

jurisdiction under section 110( c) of the Act with respect to his personal liability as an agent of a 

limited liability company IS DENIED. · 

:::::::::. 

~:1!2 2 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 

/rps 

32 FMSHRC Page 424 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

U.S. CUSTOM HOUSE 

72119TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

SPARTAN MINING CO., INC., 

Contestant, 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

_ Petitioner, 

V. 

SPARTAN MINING CO., INC., 

Respondent.· 

April 9, 2009 

CONTEST PROCEEDINGS 

Docket No. WEVA2007-517-R 

Citation No. 7261540; 05/16/2007 

Docket No. WEVA2007-518-R 

Citation No. 7261541; 05/16/2007 

Docket No. WEVA 2007-519-R 

Citation No. 7261542; 05/16/2007 

Docket No. WEVA 2007-520-R 

Citation No. 7261543; 05/16/2007 

Ruby Energy Mine 

Mine ID 46-08808 

CNIL PENALTY PROCEEDING 

Docket No. WEV A 2008-1756 

A.C. No. 46-08808-158980 

Ruby Energy Mine 

ORDER DENYING MOTION FOR CONTINUANCE OF HEARING 

On January 14, 2010 a hearing on the above captioned matters was set to commence on 

Tuesday, April 13, 2010. On Wednesday, April 7, 2010, less than one week prior to the hearing 

date, and more than two and one-half months after the matter had been set for hearing, counsel 

for Spartan Mining Company ("Spartan") filed a Motion for Continuance of Hearing (the 

"Motion"). The Secretary opposes the Motion. 

32 FMSHRC Page 425 
Following the filing of the Motion, counsel for Spartan requested a telephone conference 

call to discuss the matter. Counsel was advised that the Motion would be denied and that a 

conference call was not necessary. Counsel subsequently requested a written denial of the 

Motion in order to seek review by the Commission. Counsel was advised that any additional 

information, beyond that which was included in the Motion, could be submitted via email and 

would be considered in making a determination about rescheduling the hearing and in this 

written ruling on the Motion. Counsel's response failed to include any additional information 

beyond that which was included in the Motion. Instead, Counsel for Spartan said that she wished 

to have the opportunity to "orally expound" on the Motion. 

Spartan contends that hearing preparation had been suspended as a result of a "pending 

settlement offer [by the Secretary] and intended acceptance [by Spartan]." Mot. at 2. Further, 

Spartan contends that, in light of the April 5, 2010 tragedy at Upper Big Branch Mine1

, its 

corporate counsel has been unable to provide settlement approval. Id. Finally, Spartan states 

that its witnesses "have asked that this case be rescheduled due to their inability to focus on the 

issues in this case due to their grief and help needed with the Upper Big Branch [M]ine." Id. 

Both Spartan and the Secretary have had ample time to settle this matter. By next week, 

nearly three months will have elapsed since these dockets were set for hearing. Further, these 

citations are very old, having been issued in May of 2007. While I am conscious of and deeply 

saddened by the events at the Upper Big Branch Mine, I am also aware that close to a week 

remains before the commencement of the hearing. If the parties are as close to settlement as 

Spartan' s Motion alleges, then little effort is required on the part of its corporate counsel, and 

more than enough time remains for the case to settle before hearing. The same applies for the 

Secretary to obtain the District Manager's approval of the settlement. 

I am.sympathetic to Spartan's concerns regarding its witnesses' "lack of focus" and 

"grief' stemming from the Upper Big Branch Mine tragedy. However, Spartan's lack of 

specificity in describing its witnesses' actual involvement in, or connection to, the Upper Big 

Branch Mine tragedy leaves me without the information necessary for a potential finding of good 

cause shown to continue the hearing. Spartan has listed three witnesses for the hearing, but has 

not described the witnesses' locations or their positions at the mine. 

As a result of the current case backlog, Commission judges are inundated with cases, 

many of which are set for hearing. At present, my own hearing docket extends into October of 

this year. Where good cause for a continuance is not shown, I cannot be held hostage by the 

parties' decision to suspend hearing preparation in the days leading up to a hearing that has been 

set for almost three months. For this reason, and the reasons cited above, I DENY Spartan's 

Massey Energy Company is the current controller of both Performance Coal, 

which operates the Upper Big Branch Mine, and Spartan Mining Co., Inc., which operates the 

mine at issue in this matter. 

32 FMSHRC Page 426 
Motion for Continuance of Hearing. I will, however, allow any Spartan witness who finds it a 

hardship to attend the hearing based upon incidents at the Upper Branch Mine to appear by 

telephone to present testimony. 

Distribution: 

Carol Ann Marunich, Esq., Sarah Ghiz Korwan, Esq., Dinsmore & Shohl LLP, 215 Don Knotts 

Boulevard, Suite 310, Morgantown, WV 26501 (via regular mail, email and fax) 

Jessica R. Brown, Esq., Judson H.P. Dean, Office of the Solicitor, U.S. Dept. Of Labor, The 

Curtis Center, Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

(via regular mail, email and fax) 

/ksv 

32 FMSHRC Page 427 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-99 / FAX: 202-434-9949 

JIM WALTER RESOURCES, INC., 

Contestant, 

V. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner, 

v. 

JIM WALTER RESOURCES, INC., 

Respondent. 

April 14, 2010 

CONTEST PROCEEDINGS 

Docket No. SE 2008-124-R 

Citation No. 7693357, 11102/2007 

Mine ID: 01-00758 

CNIL PENALTY PROCEEDINGS 

Docket No. SE 2008-792 

A.C. No. 01-00758-148659 

Mine: No. 3 

ORDER GRANTING THE SECRETARY'S 

MOTION FOR A PROTECTIVE ORDER 

Before: Judge Barbour 

On March-30, 2010, Jim Walter Resources ("JWR") served upon the Secretary of Labor 

("Secretary") a supplemental 30(b)(6) Deposition Notice and Request for Production of 

Documents. The notice requested the Secretary to make available for deposition ''the person or 

persons designated by [MSHA] as being able to testify as the MSHA representatives in regard to 

the following topic: 

9. MSHA District 11 's citation history and enforcement actions related to all 

citations and/or orders issued to Jim Walter Resources, fuc., and/or any 

independent contractor or subcontractor from January 1, 2000 through November 

2, 2007 alleging violations of30 C.F.R. §77.1710(g) on any Jim Walter 

Resources, fuc. Mine site or property, including but not limited to each citation 

32 FMSHRC Page 428 
listed and/or included in Exhibit A attached hereto. 1 

JWR also requested that the Secretary produce 

1. The complete investigation file of each of the citations listed ... in 

Exhibit A, and 

2. Any and all documents relating to the citations listed in Exhibit A. 

Although the subject citation contested in Docket No.·SE 2008-124-R and Docket No. SE 2008-

792 was issued on November 2, 2007, the citations listed on Exhibit A were issued between 

October 12, 2000 and December 12, 2007. 

The Secretary objects to the broad nature of the topic upon which the company seeks to 

depose MSHA's representatives. She asserts that "[the] citation history and enforcement actions 

relating to all citations and/or orders issued to [JWR] and/or any independent contractor or 

subcontractor from January l, 2000 through November 2, 2007 alleging violations of [section] 

77 .171 O(g)," is information not likely to produce relevant evidence. She further argues that 

producing the nine inspectors required to give the requested deposition testimony would be 

"oppressive and unduly burdensome," as would be the production of the requested documents. 

Further, in the Secretary's view, the documents can lead to no admissible evidence because she 

has ''unlimited discretion" to cite a contractor or a production operator. Therefore, and contrary 

to JWR's assertions, she cannot have abused her discretion when she cited JWR for the alleged 

violation at issue. {The Secretary cites Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 318 (4th 

Cir. 2008).) 

RULING 

The Secretary's motion IS GRANTED. She need not comply with the requests made in 

JWR's March 30, 2010 supplemental 30{b)(6) Deposition Notice.2 In a letter directed to 

Counsels on April 7 and before I was aware of the Secretary's motion, I stated my belief that 

JWR's request was a distraction from "the matter at hand." I further stated that I viewed the 

issues in the captioned matters as being "relatively simple." I stated that they were whether ''the 

alleged violation [of section] 77.l 710(g) occur[ed]; if so, [whether] JWR is liable; if so what is 

the amount of the civil penalty I must assess." I noted that "the company's relevant history of 

previous violations can easily be obtained from the agency's print-out of past violations." Since I 

1

Exbibit A is an MSHA computer print-out that lists 22 citations issued for alleged violations of section 

77.l 710(g). Seven of the citations were issued to JWR, three were issued to JWR's agents and 12 were issued to 

JWR's contractors. 

2

Because I believe other principals resolve this matter, I, like the Secretary, take no position on whether a 

request under Rule 30(b )( 6) is appropriate at this juncture of the case. Fed. R. Civ. P. 30 (b )( 6). 

32 FMSHRC Page 429 
will not consider as relevant past violations cited prior to November 2, 2005, JWR's deposition 

and production request clearly includes irrelevant material. Moreover, I agree with the Secretary 

that the voluminous nature of the material sought and the number of personnel required to testify 

about it, make the request oppressive and unduly burdensome. 

Finally, as I read the law, the Secretary enjoys broad discretionary authority to cite the 

operator, the independent contractor, or both for contractor violations. See Jim Walter 

Resources, Inc., 31 FMSHRC 724, 726-727 (May/June 2009). As the court in Speed Mining 

expressly noted, the strong presumption in favor of judicial review of agency actions is overcome 

when the authorizing act provides "no judicially manageable standards ... for judging how and 

when an agency should exercise its discretion." Speed Mining, 528 F.3d at 317 (citing Heckler v. 

Chaney, 470 U.S. 821, 832 (1985).) The court went on to find the Mine Act to provide no 

manageable standard by which to judge MSHA's exercise of discretion and concluded, as the 

Secretary rightfully states, that the Secretary's "citation decisions are 'committed to agency 

discretion by law' and, and therefore, are unreviewable." Id. I am compelled to follow the 

court's holding. Therefore, in the cases at bar, if the Secretary can show the violations occurred, 

that JWR was the operator of the mine, that Hooper and Chandler Steel Erectors ("Hooper'') was 

an independent contractor of JWR, and that Hooper committed the contested violation, the issue 

of whether JWR was properly cited will not arise because the Secretary has unreviewable 

discretion to cite Hooper, JWR or both. For this reason too, JWR's request is unlikely to lead to 

the discovery of admissible evidence and must be rejected . 

Distribution: 

..P#/·~1,~ 

David F. Barbour 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, 1N 372l9 

David M. Smith, Esq., Maynard Cooper & Gale P.C., 1901 Sixth Avenue North, Suite 2400, 

Birmingham, AL 35203 

JohnB. Holmes, III, Esq., Maynard Cooper & Gale P.C., 1901 Sixth Avenue North, Suite 2400, 

Birmingham, AL 35203 

/crp 

32 FMSHRC Page 430 
· FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA). 

Petitioner, 

V. 

ORCHARD COAL COMP ANY, 

Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

V. 

S & M COAL COMP ANY, 

Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

ALFRED BROWN COAL COMP ANY, 

-Respondent. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

B & B COAL COMPANY, 

Respondent. 

April 15, 2010 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-339-E 

Citation No. 7000116 

Primrose Slope Mine 

Mine ID 36-08346 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-340-E 

Citation No. 7000440 

Buck Mountain Slope Mine 

Mine ID: 36-02022 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-342-E 

Citation No. 7000117 

7 Ft. Slope Mine 

Mine ID: 36-08893 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN 2010-343-E 

Citation No. 7000115 

Rock Ridge No. 1 Slope Mine 

Mine lD: 36-7741 

ORDER ON MOTION FOR STAY 

These consolidated cases are before me on referrals of Emergency Response Plan 

("ERP") disputes by the Secretary of Labor ("Secretary") pursuant to Commission Rule 24, 

32 FMSHRC Page 431 
29 C.F.R. § 2700.24, and section 316(b)(2)(G)(iii) of the Federal Mine Safety and Health Act of 

1977 (the "Mine Act"). I issued my decision in these proceedings on Aprill, 2010. 1 Orchard 

Coal Co., 31 FMSHRC _,PENN 2010-339-E et al. (Apr. I, 2010) (ALJ). In that decision, I 

affirmed four section 104(a) citations charging each of the Respondents for failing to comply 

with section 3 l 6(b )(2)(F)(ii) of the Act, which requires operators to provide for post-accident 

communication between underground and surface personnel via a wireless, two-way 

communication and electronic tracking ("C&T") system in ERPs, mandated under section 

3 l 6(b )(2)(A) of the Act. I also ordered the Respondents to submit revised and compliant ERPs 

to the district manager within 20 days of the date of the decision. 

I retain jurisdiction over the proceedings for the limited pu.rposes set forth in Commission 

Procedural Rule 24(f)(2), which provides: 

Stay of plan provision. Notwithstanding § 2700.69(b ), a Judge 

shall retain jurisdiction over a request for a stay in an emergency 

response plan dispute proceeding. Within two business days 

following service of the decision, the operator may file with the 

judge a request to stay the inclusion of the disputed provision in the 

plan during the pendency of an appeal to the Commission pursuant 

to paragraph (g) of this section. The Secretary shall respond to the 

operator's motion within two business days following service of 

the motion. The judge shall issue an order granting or denying the 

relief sought within two business days after the filing of the 

Secretary's response. 

29 C.F.R. § 2700.24(f)(2). 

In a motion dated April 7, 2010, Alfred Brown Coal Company, on behalf of itself and the 

other Respondents, Orchard Coal Company, S & M Coal Company, and B & B Coal Company, 

filed a Request for Stay of Plan Provision.2 The Secretary filed a Statement in Opposition to 

Respondent's Request on April 13, 2010. 

1 My decision was served on all the parties by facsimile on April I, 2010. However, the 

Commission did not send the Respondents' facsimiles to the Independent Miners & Associates 

number as previously requested by the Respondents. This error was corrected on April 5, 2010. 

The decision was also served to all parties by certified mail, return receipt requested. 

2 There is no automatic time and date stamp typically generated by a facsimile on 

Respondents' Request for Stay of Plan Provision. Although the request filed by Alfred Brown 

Coal is date stamped by the Commission as having been received on April 9, 2010, for purposes 

of ruling on it, I deem it to have been timely filed on April 7, 2010. The request was not served 

properly upon the Secretary, who received it from the Commission on April 12, 2010. 

32 FMSHRC Page 432 
In their request for a stay of the plan provision at issue in these proceedings, the 

Respondents argue that the safety of C&T systems in their particular mines remains in doubt. 

They rely heavily on comments made by Commission Administrative Law Judge Michael E. 

Zielinski in a decision issued December 9, 2009, involving an anthracite operator and issues 

similar to those in this case. See RS&WCoal Co., 31FMSHRC1440 (Dec. 2009) (ALJ). In his 

decision, Judge Zielinski noted, inter alia, that "[t]here is no question that requiring RF [radio 

frequency energy] sources in its mine would create hazards that did not exist under RS&W's 

currently approved plan." 31 FMSHRC at 1455; But he went on to note that "it has been 

conclusively demonstrated that currently approved [C&T] systems can be used safely in RS&W's 

mine," and affirmed the citation issued by the Secretary to RS&W Coal. Id. at 1455, 1457. The 

Respondents' reliance on Judge Zielinski's comments, taken out of context, is thus unavailing. 

·Moreover, I found in my April 1, 2010, decision that •'that the chances of an unintentional 

ignition or detonation of a blasting cap from C&T devices, which emit such low levels of RF 

energy, is infinitesimally remote to the point that it is nearly non-existent." Orchard Coal Co., 

slip op. at 15. The Respondents' request for a stay fails to convince me otherwise. I thus reject 

their request for a stay based on their arguments that C&T systems are too dangerous for use in 

their mines. 

The Respondents' also argue that, as to S&M Coal Company, the Secretary has failed to 

engage in good faith negotiations with the company. In response, the Secretary attached to her 

statement in opposition a letter dated April 12, 20 l 0 from the District Manager, John A. Kuzar, 

to S&M Coal offering "to work with S&M Coal to develop a compliant ERP that provides 

upgraded communication and tracking capability." (Sec'y Statement in Opp'n, Attachment at 1.) 

In light of my April 1, 2010 decision on S&M Coal's economic feasibility arguments, I need not 

reach this issue. 

Accordingly, the Respondents' Request for Stay of Plan Provision is DENIED.3 

tdl_G?~ AlanG. Paez 

Administrative Law Judge 

3 In light of my denial of the Respondents' request for stay, I need not reach any of the 

other arguments made by the Secretary in her statement in opposition. 

32 FMSHRC Page 433 
Distribution: (Facsimile and Certified Mail) 

Stephen D. Turow, Esq., Mary Forrest-Doyle, Esq., and Matthew Babington, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-

2296 

Kerry Harris, Owner, Orchard Coal Company, Primrose Slope, 15 Motter Drive, Pine Grove, PA 

17963 

Darryl Kopema, Superintendant, S & M Coal Company, 1744 E. Grand Avenue, Tower City, PA 

17980 

Alfred J. Brown, Foreman, Alfred Brown Coal Company, 7 Ft. Slope, 71 Hill Road, Hegins, PA 

17938 

Richard E. Bender & Donald C. Bender, Partners, B&B Coal Company, Rock Ridge No. 1 Slope, 

225 Main Street, Tremond, PA 17981 

/Ip 

32 FMSHRC Page 434 

G:O- U.S. GOVERNMENT PRINTING OFFICE: 201~58-021/83802