i 

March 2015 

TABLE OF CONTENTS

COMMISSION DECISIONS 

03-04-15 EXCEL MINING, LLC KENT 2009-1368 Page 

03-04-15 SIGNAL PEAK ENERGY, LLC WEST 2010-1130 Page 

03-31-15 JIM WALTER RESOURCES, INC. SE 2007-203-R Page

03-31-15 NEWMONT USA LIMITED WEST 2010-652-RM Page

COMMISSION ORDERS 

03-27-15 FREEPORT-MCMORAN CHINO 

MINES COMPANY 

CENT 2014-453-M Page 

03-27-15 LCT ENERGY, LP PENN 2014-819 Page 

03-27-15 COLWELL CONSTRUCTION 

COMPANY 

SE 2014-191-M Page 

03-27-15 N.A. DEGERSTROM, INC. WEST 2014-501-M Page 

03-27-15 BRAND ENERGY & 

INFRASTRUCTURE SERVICES 

WEST 2014-526-M Page 

03-27-15 TATA CHEMICALS (SODA ASH) 

PARTNERS 

WEST 2014-582-M Page 

03-27-15 TATA CHEMICALS (SODA ASH) 

PARTNERS 

WEST 2014-586-M Page 

03-30-15 PETRO CHEMICAL INSULATION, 

INC. 

KENT 2014-606 Page 

03-30-15 RHINO EASTERN, LLC WEVA 2014-892 Page
ii 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-03-15 SEC. OF LABOR O/B/O DALLAS 

BROOKS v. KINGSTON MINING, 

INC. 

WEVA 2015-432-D Page 

03-05-15 AMES CONSTRUCTION, INC WEST 2014-274 Page 

03-12-15 HUMPHREYS ENTERPRISES, INC. VA 2012-504 Page 

03-13-15 NORTHERN AGGREGATE, INC. LAKE 2014-110-M Page 

03-16-15 BIG LAUREL MINING 

CORPORATION 

VA 2012-619 Page 

03-18-15 MACH MINING, LLC LAKE 2012-66 Page 

03-18-15 KNIGHT HAWK COAL, LLC LAKE 2014-120-R Page 

03-19-15 SIERRA ROCK PRODUCTS, INC. WEST 2011-1029-M Page 

03-20-15 HANSON AGGREGATES 

MIDWEST, LLC 

KENT 2013-931-M Page 

03-24-15 A MINING GROUP, LLC SE 2014-194M Page 

03-26-15 REMINGTON, LLC WEVA 2012-533 Page 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-12-15 SEC. OF LABOR O/B/O CARLTON 

JOHNSON v. BASF CORPORATION 

SE 2015-201-DM Page 

03-12-15 SANDRA G. MCDONALD v. TMK 

ENTERPRISE SECURITY 

WEVA 2014-387-D Page 
iii 

Review was granted in the following cases during the month of March 2015:

United Steel Workers, Local No. 5114, on behalf of Miners, v. Hecla Limited, Docket No. 

WEST 2012-466-CM (Judge Manning, February 4, 2015) 

Sandrag G. McDonald v. TMK Enterprise Security, Docket No. WEVA 2014-387-D (Judge 

Feldman, March 12, 2015) 

Review was denied in the following cases during the month of March 2015:

Secretary of Labor, MSHA, v. CONSOL Buchanan Mining Company, Docket No. VA 2013-190 

(Judge Rae, January 23, 2015) 

Secretary of Labor, MSHA, v. Jacobs Field Services, Docket No. WEST 2014-615-DM (Judge 

Simonton, February 9, 2015) 

Secretary of Labor, MSHA, v. Sally Ann Coal Company, Docket No. WEVA 2011-1028, et al 

(Judge Harner, February 5, 2015) 

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 4, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. KENT 2009-1368 

v.

EXCEL MINING, LLC 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY THE COMMISSION: 

In this proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) (]Mine Act^ or ]Act^), Excel Mining, LLC (]Excel^) seeks review of 

a citation and an order issued to it by the Department of Laborbs Mine Safety and Health 

Administration (]MSHA^). At issue are two violations of MSHAbs permissibility standard, 30 

C.F.R. § 75.507-1(a),1 for de-watering pumps in a return air course in Excelbs Van Lear Mine. 

Excel disputes the special findings made by the Secretary d in particular, the significant and 

substantial (]S&S^) and unwarrantable failure designations d and the basis for the penalty 

assessments with respect to the penalty criterion involving size of the controlling entity. 

The Administrative Law Judge found that the violations were S&S and the result of 

Excelbs unwarrantable failure to comply. 33 FMSHRC 3221, 3225-27 (Dec. 2011) (ALJ); Jt. Ex. 

9, Stips. 14, 21. He also found that Excel was highly negligent and assessed the penalties proposed 

by the Secretary. 33 FMSHRC at 3227-28. 

For the reasons that follow, we affirm the Judgebs decision.

1

 30 C.F.R. § 75.507-1(a), provides that ][a]ll electric equipment, other than 

power-connection points, used in return air outby the last open crosscut in any coal mine shall be 

permissible except as provided in paragraphs (b) and (c) of this section.^ The Judge found no 

contention that paragraphs (b) or (c) are applicable here. 33 FMSHRC at 3223. 

37 FMSHRC Page 459
I. 

Facts and Proceedings Below

A. Factual Background 

Excelbs Van Lear Mine is an underground coal mine located in Martin County, Kentucky. 

The mine liberates 295,000 cubic feet of methane in a 24-hour period from one split of air and was 

subject to a 15-day spot inspection for methane at the time of the violations at issue in this case. Tr. 

42-43. 

On May 5, 2011, MSHA Inspector Dale Howell visited the Van Lear Mine to perform an 

electrical inspection. He was unable to inspect two de-watering pumps2 d the P-40 and P-70 

pumps located in the return air course approximately 60 feet from the VL-2 seals d because they 

were submerged in three feet of water. The VL-2 seals are breathable, permitting methane to in-gas 

and out-gas, which means that during times of high barometric pressure, methane is pushed back 

behind the seals, whereas during times of low barometric pressure, methane is liberated from the 

seals. Behind the VL-2 seals are an initial set of seals put in place at an earlier time. Before the 

installation of the VL-2 seals, an explosive mixture of methane was detected behind the seals. With 

the VL-2 seals in place, there is no way to determine the current condition of the initial seals. The 

pumps were located in an entry where four entries were compressed into one, causing the air from 

five returns from active sections to move past the pumps. At the time of Inspector Howellbs visit on 

May 5, he noted that due to the accumulation of water, only two feet of passable airway travel were 

provided. 

Jake Bowen, Excelbs Assistant Chief Electrician, indicated to Inspector Howell that the 

water built up because the power had been off. Howell was concerned that, without the pumps, 

water would continue to build up, block air flow, and impede travel in the return air course. 

Inspector Howell indicated to Bowen that he would return to examine the pumps once the water 

was removed. 

On May 11, Howell returned to the mine and found a foot of water surrounding the pumps. 

Howell examined the pumps for permissibility by using a feeler gauge and pulling on the cable 

entering the box to see if it moved. Any movement in the cable indicates that the cable is not 

properly packed. When a stuffing box is not properly packed, it is not permissible because in an 

explosion, flames could escape the container by traveling past the unsecured cable. 

The permissibility requirements are designed to ensure that ignitions occurring within 

enclosures on mining equipment which contain electrical circuits will not escape into the mine 

 2

 A de-watering pump consists of the pump itself, which sits on the mine floor, usually in 

water, and a starter box, which is located 20-30 feet away in a dry location, usually suspended from 

the roof. The two are connected by an inner machine cable. Where the cable enters the starter box, 

it is insulated and secured by packing glands, which are filled with fiberglass-type rope. 

37 FMSHRC Page 460
atmosphere. Specifically, the requirements are intended to prevent the ignition of an explosive 

air-methane mixture surrounding mine equipment. An ignition inside the enclosure will generate 

hot gases. When the equipment is permissible, these gases will escape through a flame-arresting 

path built into the enclosure and will cool as they pass through. Consequently, the gas escaping 

into the surrounding atmosphere will not ignite any external explosive air. Knox Creek Coal Corp.,

36 FMSHRC 1128, 1130-31 (May 2014). 

MSHA regulations define permissible equipment as ]all electrically operated equipment 

taken into or used inby the last open crosscut of an entry . . . [that is] designed, constructed, and 

installed, in accordance with the specifications of the Secretary, to assure that such equipment will 

not cause a mine explosion or mine fire, and . . . to prevent, to the greatest extent possible, other 

accidents in the use of such equipment.^ 30 C.F.R. § 75.2. 

During his examination of the pumps, Inspector Howell found that the packing glands were 

missing from both pump starter boxes and that there was a problem with the handle on one of the 

boxes. When Inspector Howell pulled on the cables to the starter boxes, they moved back and 

forth. When he looked into the boxes, he did not see any stuffing. The cable to one of the boxes had 

been ]whittled down with a knife so that it would fit into the pump,^ and the stuffing boxes did not 

have proper lead ties to keep the packing glands from loosening. 33 FMSHRC at 3224; Tr. 27, 

31-32. 

Inspector Howell also found a note on top of the cover of the starter box with a 

non-functioning breaker handle. If functioning properly, the breaker handle would have enabled 

the breaker on the starter box to be reset without removing the cover of the box. Inspector Howell 

understood the note to be a warning to miners not to do anything that would trip the breaker, so as 

to avoid the need to take the cover off the box to reset it. 

Inspector Howell spoke with Bowen, who indicated that he had worked at the mine for 

about a month and that during that time, the pumps had not been replaced and that no work or 

repair had been done on the pumps. Inspector Howell confirmed this with Excelbs Chief 

Electrician Rick James and by checking Excelbs examination record books, which did not indicate 

that the pumps had been changed in the weeks preceding Howellbs inspection. 

Inspector Howell issued a citation for the P-40 pump and an order for the P-70 pump 

pursuant to section 104(d) of the Mine Act, 30 U.S.C. § 814(d), for failure to maintain the pumps 

in permissible condition. Howell designated the violations as S&S3

 and a result of Excelbs high 

negligence and unwarrantable failure.4

 MSHA proposed penalties of $23,200 for the citation and 

$25,800 for the order. 

3

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that ]could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.^ 

4

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30 

FRQWLQXHG

37 FMSHRC Page 461
B. The Judge@s Decision 

The Judge noted that Excel conceded the fact of the violations. The Judge concluded that 

the violations were S&S. Specifically, the Judge credited the testimony of Inspector Howell and 

MSHAbs ventilation expert and supervisor, Craig Plumey. They testified that a spark from inside 

the pump starter box could escape into the mine atmosphere where it was likely that methane could 

be present in explosive levels due to the elevated levels of methane, out-gassing of the nearby 

sealed off area, and the convergence of five returns from active sections into the one entry where 

the pumps were located. Tr. 25, 30, 41-45, 89, 93-96, 102-04. The Judge found persuasive the 

weight of the evidence regarding the ]existence of serious existing ignition sources in a mine 

liberating significant amounts of methane^ and concluded that the Secretary had proven a 

reasonable likelihood that the hazard of an explosion contributed to by the permissibility violations 

would result in serious injury to ten miners, and would result in disruption of ventilation affecting 

fifty to sixty miners. 33 FMSHRC at 3225-26. 

The Judge likewise concluded that the violations were the result of Excelbs unwarrantable 

failure. He credited testimony that the conditions existed for about a month, which he found 

aggravating as to duration; that Excel had knowledge of them, given the requirement of weekly 

examinations and the presence of the note acknowledging the malfunctioning breaker handle; and 

that the conditions were extensive and obvious given that no packing was provided at all. Tr. 

28-29, 31-34, 50-54. The Judge rejected Excelbs argument that the electrical examinersb negligent 

conduct could not be imputed to it. 33 FMSHRC at 3226-27. 

Having considered the six penalty criteria under section 110(i), the Judge assessed the 

same penalties the Secretary had proposed for both violations. 

II. 

Disposition

A. S&S

A violation is S&S if, based on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. See Cement Div., Nat6l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

4(ncontinued) 

U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by 

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

standards.^ 

37 FMSHRC Page 462
mandatory safety standard; (2) a discrete safety hazard o that is, a 

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

reasonable likelihood that the hazard contributed to will result in an 

injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted). 

An evaluation of the reasonable likelihood of injury should be made assuming continued 

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

examining whether an explosion or ignition is reasonably likely to occur, it is appropriate to 

consider whether a ]confluence of factors^ exists to create such a likelihood. Texasgulf, Inc., 10 

FMSHRC 498, 501 (Apr. 1988); see Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 (Feb. 

1991). Some of the factors to be considered include the extent of accumulations, possible ignition 

sources, the presence of methane, and the type of equipment in the area. See Utah Power & Light 

Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990); Texasgulf, 10 FMSHRC at 501-03. 

Excel challenges the Judgebs S&S finding on three grounds: (1) that the Judge erred in 

failing to apply the ]confluence of factors^ standard; (2) that the Judge misapplied the 

consideration of ]continued normal mining operations^; and (3) that the Judge erred in relying on 

]could^ statements to support a finding of reasonable likelihood of the hazard contributed to by the 

violation resulting in an injury. Each of these arguments is related to step three of the Mathies test. 

We conclude that the Judge properly applied the Commissionbs Mathies analysis to the 

circumstances of this case and that substantial evidence supports the Judgebs findings that the 

violations were S&S. 

Although the Judge did not specifically identify his findings under each step of Mathies, he 

made explicit findings tantamount to an analysis of each step. The Judge clearly found a violation 

under step one, as he noted that the parties conceded the fact of a violation. 33 FMSHRC at 3221, 

3223. Regarding the fourth step of Mathies, a reasonable likelihood that the injury in question 

would be of a reasonably serious nature, the Judge credited the testimony of Inspector Howell that 

he ]would expect to see fatal injuries from a resulting methane explosion and injuries from burns 

and smoke inhalation from a mine fire.^ 33 FMSHRC at 3225; Tr. 48-49. Substantial evidence 

supports the Judgebs finding. Inspector Howell testified that ten people would be affected by a 

methane explosion, and up to fifty or sixty people would be affected in the event of a disruption in 

the minebs ventilation system. 33 FMSHRC at 3225; Tr. 48-49. 

While the Judge did not explicitly identify the hazard under step two of Mathies, he clearly 

understood that the hazard was the danger of a spark being released from the starter box into the 

mine atmosphere, thereby providing an ignition source for methane. 33 FMSHRC at 3223 (citing 

to Howellbs testimony that ]when a stuffing box is not properly packed, it is not permissible 

because, in the event of an explosion, the flames can escape the container by traveling past the 

unsecured cable^). 

37 FMSHRC Page 463
The Judge focused his S&S analysis on the third step of Mathies d whether there is a 

reasonable likelihood that the hazard contributed to will result in an injury. 33 FMSHRC at 

3224-26. Excel argues that the Judge misapplied applicable Commission precedent. Excel 

contends that the Judge erred by relying on ]could^ statements, arguing that the Commission has 

held that ]statements that [a methane ignition] could occur, standing alone, do not support a 

finding that there was a reasonable likelihood of an ignition.^ See Zeigler Coal Co., 15 FMSHRC 

949, 954 (June 1993) (emphasis added) (citing Eastern Assoc. Coal Corp., 13 FMSHRC at 

184-85; Union Oil Co. of CA, 11 FMSHRC 289, 298-99 (Mar. 1989)). 

We conclude that the Judge properly applied Commission precedent in his S&S analysis.5

The Judge explicitly credited testimony of Inspector Howell and ventilation expert Plumey 

regarding the hazardous conditions created by the violation. Having found that there were multiple 

sources of methane and specific evidence as to the potential for explosive accumulations, he 

concluded that there was a reasonable likelihood that an ignition or explosion would occur given 

the ignition sources of the non-permissible pumps. 33 FMSHRC at 3225-26. 

The circumstances in this case, therefore, are similar to the issues addressed by the 

Commission in Knox Creek Coal Corp., 36 FMSHRC 1128 (May 2014). In Knox Creek, the 

Commission concluded that the confluence of circumstances presented by the violative conditions 

sufficiently established that there was a reasonable likelihood of an ignition resulting from the 

non-permissible continuous mining equipment. The Secretary had presented expert testimony 

regarding the scope and nature of the hazardous conditions posed by the non-permissible 

equipment in the mine which liberated excessive methane. Id. at 1132-37. 

The Judgebs decision also is consistent with longstanding Commission precedent. In U.S. 

Steel Mining Co., 6 FMSHRC 1866 (Aug. 1984), the Commission upheld an S&S finding for a 

permissibility violation involving headlights, even though at the time of the violation there 

 5

 Cases relied upon by Excel are clearly distinguishable from the present case. In Zeigler, 

the Judge had merely summarized the testimony without analyzing the confluence of factors 

necessary to establish a reasonable likelihood of an ignition. Id. at 954. Because the Judge failed to 

make necessary findings and reconcile conflicting testimony, the Commission vacated the Judgebs 

S&S determination and remanded for further analysis. Id. at 954-55. The Commission noted that 

speculative testimony, ]standing alone,^ does not support a finding of a reasonable likelihood of 

an ignition. See id. at 953-54. The Commission also recognized that the S&S terminology in 

section 104(d)(1) of the Mine Act refers to a violation which ]could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard . . .^ (emphasis added), and 

that the ]Secretary is not required to prove that the hazard contributed to will actually result in an 

injury causing event.^ Id. at 953 nn. 5-6 (citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 

678 (Apr. 1987)). In Eastern Associated and Union Oil, the Commission found that the evidence 

was speculative and failed to support a finding of the reasonable likelihood of the hazard resulting 

in an injury. Here, the Judge did make findings as to the reasonable likelihood of the violative 

conditions contributing to an ignition, crediting Inspector Howellbs testimony. 

37 FMSHRC Page 464
appeared to be adequate ventilation in the mine, and mining was not taking place at the precise 

moment the citation was issued. Id. at 1869. 

Similarly, in U.S. Steel Mining Co., 8 FMSHRC 1284 (Sept. 1986), the Commission 

affirmed the Judgebs S&S findings regarding a permissibility violation involving electric face 

equipment. The inspector had observed a bolt missing on the cover plate of the control 

compartment of a shuttle car. The control plate was designed to keep an ignition confined and the 

missing bolt could permit methane to enter the control compartment, causing an ignition. Id. at 

1289-90. The mine liberated more than one million cubic feet of methane in a 24-hour period, and 

there had been a methane ignition in the year preceding the hearing. The Commission concluded 

that this was sufficient to uphold the S&S designation. Id.

The record in this case demonstrates an even greater potential for the hazard of methane 

ignition to occur. The Secretarybs witnesses offered extensive testimony of potential methane 

sources. It is undisputed that this mine liberated high levels of methane. Tr. 42. The location of 

these pumps was in close proximity to a sealed off area known to release explosive amounts of 

methane. Tr. 42-43, 89. The pumps were also located in an entry where four entries converged into 

one, causing the air from five returns from active sections to move past the pumps. 

Tr. 103-04. Inspector Howell testified that methane could also escape from cracks in mine strata, 

such as in areas where there has been a roof fall, and that the mine had experienced a roof fall only 

one break inby the seals. Tr. 44. 

Inspector Howell and Plumey, MSHAbs ventilation expert, also testified as to their 

concerns about the reduced space for air to travel through the entry where the pumps were located 

due to the accumulation of water. 33 FMSHRC at 3225; Tr. 29-30, 49-50, 93-94. The 

egregiousness of the violations is heightened by the fact that the boxes contained no packing 

material at all. Without any packing material, the boxes could not properly contain any internal 

combustion. Tr. 25. Also significant is the fact that one of the cables into the box had been whittled 

down to fit into the opening. Tr. 32. Hence, substantial evidence supports a finding that there was a 

reasonable likelihood that the hazard of a spark being released from the starter box would result in 

a methane explosion causing serious injury. 

The Judgebs consideration of these factors demonstrates that he correctly considered the 

]confluence of factors^ that could result in an ignition. As mentioned earlier, the confluence of 

factors analysis requires consideration of the particular circumstances in the mine, including the 

possible ignition sources, the presence of methane, and the type of equipment in the area. See Utah 

Power & Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. As discussed 

previously, the Judge acknowledged the multiple sources of methane in the entry where the pumps 

were located and that the non-permissible pumps posed an ignition hazard. 

33 FMSHRC at 3225-26. 

37 FMSHRC Page 465
Excelbs argument regarding continued normal mining operations is also unpersuasive. 

Excel appears to be arguing that, in considering continued normal mining operations, the Judge 

failed to take into account contrary evidence it presented that the ventilation was adequate and that 

it was unlikely that an explosive level of methane would be present in the mine. Excelbs complaint 

that the Judge did not consider its witnessesb countervailing testimony is unavailing, as the Judge 

explicitly stated that he did consider this testimony. However, he found it unconvincing and 

credited the Secretarybs witnesses. 33 FMSHRC at 3226. 

Commission Procedural Rule 69(a) requires that a Commission Judgebs decision ]shall 

include all findings of fact and conclusions of law, and the reasons or bases for them, on all the 

material issues of fact, law or discretion presented by the record.^ 29 C.F.R. § 2700.69(a). A Judge 

is required to analyze and weigh all probative record evidence, make appropriate findings, and 

explain the reasons for his or her decision. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 

(June 1994). The Judge has adequately done so here. 

Substantial evidence supports the Judgebs conclusion that under continued normal mining 

operations there was a reasonable likelihood that the hazard would contribute to serious injuries to 

miners. As discussed above, the non-permissible pumps created potential ignition sources during 

continued normal mining operations. Water accumulation in the entry where the pumps were 

located obstructed air flow and potentially compromised ventilation in the mine. Water was an 

ongoing problem in this area of the mine. The entry where the pumps were located was the 

merging point of five active entries. If airflow diminished, the likelihood of explosive levels of 

methane accumulating would increase. Also, the location of the pumps was close to a sealed area 

known to liberate explosive levels of methane. Previously, a roof fall had occurred at the mine only 

one break inby the seals, from which methane could liberate. 33 FMSHRC at 3225. Thus, even if 

one were to accept the testimony of Excelbs witnesses that the mine had sufficient velocity and 

volume of air at the time of the violations, the Judge credited the overwhelming testimony of 

Inspector Howell and MSHA ventilation expert Plumey demonstrating the potential for Excelbs 

ventilation to be compromised and thus not adequately move and dilute methane. We conclude 

that the Judgebs credibility determinations are reasonable and find no basis to overturn them.6

B. Unwarrantable Failure

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by such conduct as ]reckless disregard,^ ]intentional 

misconduct,^ ]indifference,^ or a ]serious lack of reasonable care.^ Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 

52 F.3d 133, 136 (7th Cir. 1995) (approving Commissionbs unwarrantable failure test). 

 6

 A Judgebs credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn 

Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). 

37 FMSHRC Page 466
Whether the conduct is ]aggravated^ in the context of unwarrantable failure is determined 

by looking at all the facts and circumstances of each case, including (1) the extent of the violative 

condition, (2) the length of time that it has existed, (3) whether the violation posed a high risk of 

danger, (4) whether the violation was obvious, (5) the operatorbs knowledge of the existence of the 

violation, (6) the operatorbs efforts in abating the violative condition, and (7) whether the operator 

has been placed on notice that greater efforts are necessary for compliance. See Manalapan Mining 

Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009). 

Excel contends that the Judge failed to consider all the unwarrantable failure factors. 

However, the Judge did make findings on unwarrantable failure factors, including duration, 

extensiveness, obviousness, knowledge, danger, and lack of abatement. He found each of these 

factors to be aggravating. The Judge found that the conditions were obvious and extensive because 

the boxes lacked any packing at all. Regarding the danger of the violations, he found that the 

violations involved high gravity. He found that Excelbs failure to correct the condition was 

particularly egregious given the presence of a note on the P-70 pump which indicated that the 

breaker handle was not functioning, putting the operator on notice of the need for repair and 

maintenance. The Judge also relied on the fact that a simple examination would have informed the 

examiner that the pumps were not compliant. 33 FMSHRC at 3227. Substantial evidence supports 

the Judgebs findings as to these factors. 

Likewise, substantial evidence supports the Judgebs finding as to duration and knowledge. 

Excel disputes the evidence that the conditions lasted for more than a month but can cite no record 

evidence in support of that position. Inspector Howell testified that Excelbs Assistant Chief 

Electrician James Bowen told him that the pumps had not been changed out and the minebs record 

books corroborated this. Tr. 50-51. There was no indication that the pumps had been changed out 

or repaired between March 28 and May 11, 2009. Chief Electrician Rick James testified that the 

pumps must have been changed out between the last examination and Howellbs inspection, but 

provided no proof. Tr. 122-25. The Judge credited Inspector Howellbs testimony. In concluding 

that the conditions lasted for more than a month, the Judge drew an inference, which is reasonable 

and supported by the record. 33 FMSHRC at 3226. Such circumstantial evidence can suffice to 

satisfy the substantial evidence test to support a Judgebs finding. See Mid-Continent Res., Inc., 6 

FMSHRC 1132, 1138 (May 1984) (holding that ]the substantial evidence standard may be met by 

reasonable inferences drawn from indirect evidence^). 

Regarding the issue of knowledge, the Judge relied on the note on the starter box as putting 

Excel on notice that there was a problem with the pump. Excel contends that there is no evidence 

as to when the note was present or whether its agent wrote or saw the note. Regardless of whether 

Excelbs examiner saw the note during the last inspection of the pumps, the examiner should have 

been aware of the violation, given its obviousness. Also, the evidence with regard to duration 

established that the violations existed for more than a month, putting Excel on notice. Hence, the 

Judgebs finding that Excel knew or should have known of the violations is supported by substantial 

evidence. 

37 FMSHRC Page 467
were necessary. As Excel points out, there is no evidence in the record that it had been previously 

cited for this condition or otherwise placed on notice. However, given the Judgebs other findings 

that the conditions were dangerous, long standing, extensive, obvious, and that the operator knew 

or should have known of them, any potential mitigation related to notice of greater compliance 

could not overcome the overwhelming evidence here of other aggravating circumstances. See 

Manalapan, 35 FMSHRC at 294 (]The factor of dangerousness may be so severe that, by itself, it 

warrants a finding of unwarrantable failure.^); Jim Walter Res., Inc., 19 FMSHRC 480, 486-89 

(Mar. 1997) (finding that evidence of obviousness and extensiveness of violations sufficient to 

support finding of unwarrantable failure). 

Excelbs argument regarding the imputation of negligence for unwarrantable failure 

purposes is misplaced. Here, the key points are the failure of Excel to provide the packing material 

initially in order to make the pumps permissible, the failure of Excelbs examiners to note this 

deficiency, and the failure of Excel to correct it. The negligence of Excelbs examiners is imputable 

to Excel for unwarrantable failure purposes. See Mettiki Coal Corp., 13 FMSHRC 760, 772 (May 

1991) (certified electrician acts as an agent when performing electrical inspections); Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 197 (Feb. 1991) (miner who failed to make examinations 

found to be agent of operator for purposes of unwarrantable failure). Thus, the Judge did not err by 

imputing high negligence to Excel under the circumstances of this case. 

Given the Judgebs findings of aggravating circumstances, substantial evidence supports the 

Judgebs conclusion that the violations amounted to Excelbs unwarrantable failure to comply with 

the cited standard. Thus, we affirm the Judgebs findings of unwarrantable failure and high 

negligence. 

C. Penalties

Excelbs argument as to the consideration of ]controller points^ in calculating the 

appropriate penalties also lacks merit. Excel claims that MSHA erred in calculating the applicable 

points for a controlling entity under its regulations in 30 C.F.R. Part 100 and that the Secretary 

provided no evidence to support his assessment on this factor.7 

As the Commission has recently emphasized, the Secretarybs Part 100 penalty regulations 

are not binding on the Commission. Jim Walter Res. Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 

2014) (]The Secretarybs Part 100 regulations apply only to the Secretarybs penalty proposals, 

while the Commission exercises independent authority to assess penalties pursuant to section 

110(i) of the Mine Act.^) (citations omitted); see also Sellersburg Stone Co. v. FMSHRC, 736 F.2d 

1147, 1151-52 (7th Cir. 1984), aff6g, Sellersburg Stone Co., 5 FMSHRC 287 (Mar. 1983) 

7

 The Secretary did present an exhibit attached to his Petition for Assessment of Penalty, 

which provided the production details related to Excel and its controlling entity, Alliance Resource 

Partners LP, for purposes of assigning points to calculate the proposed assessment under Part 100. 

Thus, contrary to Excelbs assertion, there is evidence in the record to support the Secretarybs 

proposed assessments. 

37 FMSHRC Page 468

The Judge did not address whether Excel was on notice that greater compliance efforts 
(][N]either the ALJ nor the Commission is bound by the Secretarybs proposed penalties . . . we 

find no basis upon which to conclude that [MSHAbs Part 100 penalty regulations] also govern the 

Commission.^). 

The Judge considered all six factors under section 110(i) of the Mine Act, as required. The 

Judge found that Excel is a large operator with a significant history of violations. 33 FMSHRC at 

3227. In fact, Excel conceded that it was a large operator. See Jt. Ex. 9, Stip. 6. The Judge also 

found that Excel abated the violations in good faith and that there was no evidence that the 

penalties would adversely affect Excelbs ability to remain in business. The Judge referred to his 

previous analysis of the violations, where he concluded that they involved high gravity and high 

negligence, resulting from Excelbs unwarrantable failure to comply. 33 FMSHRC at 3227. Thus, 

the Judge correctly applied section 110(i) and independently assessed penalties for the violations. 

Excel does not dispute the Judgebs decision with regard to his application of section 110(i) 

or his findings on the penalty criteria. Substantial evidence supports the Judgebs findings. 

Accordingly, we see no grounds for disturbing the Judgebs penalty assessments. Because the Judge 

was not bound by the Secretarybs Part 100 regulations in assessing penalties, he was not required 

to explicitly address Excelbs argument regarding the ]controller points.^ 

Accordingly, we affirm the Judgebs penalty assessments. 

III. 

Conclusion

For the foregoing reasons, we affirm the Judgebs decision concluding that the violations 

were S&S and resulted from Excelbs unwarrantable failure to comply. We also affirm the penalty 

amounts. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner

37 FMSHRC Page 469
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 4, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket No. WEST 2010-1130 

v. 

SIGNAL PEAK ENERGY, LLC 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY: Nakamura, Acting Chairman; Cohen, Commissioner 

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

et seq. (2012) (\Mine Act] or \Act]), and involves two citations issued to Signal Peak Energy 

by the Secretary of Labor in the wake of a roof fall (or \cave]) and a resulting injury. 

Citation No. 8463717 alleges that Signal Peak failed to immediately notify the 

Department of Laborcs Mine Safety and Health Administration (\MSHA]) of an accident, in 

violation of section 50.10 of the Secretarycs reporting requirements. The Secretary alleges that 

the injury was reportable under section 50.10(b), or alternatively, that the roof fall was reportable 

under section 50.10(d).1 Citation No. 8463718 alleges that Signal Peak failed to preserve the 

1

 Section 50.10 states in relevant part that an \operator shall immediately contact MSHA 

at once without delay and within 15 minutes . . . once the operator knows or should know that an 

accident has occurred] involving: 

. . . 

(b) An injury of an individual at the mine which has 

a reasonable potential to cause death; 

. . . or 

(d) Any other accident. 

30 C.F.R. § 50.10. For the purposes of subsection (d), the definition of \accident] includes \an 

unplanned roof or rib fall in active workings that impairs ventilation.] 30 C.F.R. § 50.2(h)(8). 

37 FMSHRC Page 470
accident site in violation of section 50.12. 2 The Secretary designated Citation No. 8463717 as 

significant and substantial (\S&S]),3 and attributed both cited conditions to reckless disregard.4

The Administrative Law Judge upheld both citations in their entirety and assessed 

penalties that were substantially higher than those proposed by the Secretary. 34 FMSHRC 1346 

(June 2012) (ALJ). The Commission granted Signal Peakcs petition for review with regard to all 

elements. For the reasons below, we affirm the Judgecs findings with regard to Citation No. 

8463717 with the exceptions of the finding of a violation of 30 C.F.R. § 50.10(d) and the 

assessed penalty. We affirm the Judgecs findings with regard to Citation No. 8463718 in their 

entirety. 

I. 

Factual and Procedural Background

A. Factual Background 

On December 23, 2009, a roof fall or \cave] occurred in the longwall gob at Signal 

Peakcs Bull Mountain Mine No. 1 in Roundup, Montana. This was the initial roof cave on the 

first longwall panel at the mine. Caves in the gob are an expected part of longwall mining, and 

the initial roof cave on a panel is often larger than subsequent falls. Tr. 93-94. The cave caused a 

blast of air which damaged approximately 78 stoppings, and propelled miner Mike Stewart 50-

80 feet. 34 FMSHRC at 1352; Tr. 62, 123. When Stewart was found by other miners shortly after 

the blast, he was in severe pain, had difficulty breathing and moving, had a significant lump on 

his back, and stated that he was not okay. He was loaded onto a backboard and slowly 

transported to the surface. 34 FMSHRC at 1356, 1358; Tr. 158, 162, 165, 429-32. 

Shift foreman and EMT Ben Harcourt5 performed an evaluation as Stewart was 

transported to the surface. He determined that Stewart had a cut on his head, noticeably broken 

ribs, pain in his chest and back, trouble breathing, and signs of shock. He stated that he found no 

obvious signs of concussion, internal bleeding, or a punctured lung, and found that Stewart had 

good respiration and circulation. Tr. 367-76. However, Harcourt was not able to take Stewartcs 

pulse, blood pressure or oxygen level, and admitted that without these three critical components 

he did not have an accurate assessment of Stewartcs vital signs. Tr. 391-92. He nevertheless 

2

 Section 50.12 states in relevant part: \no operator may alter an accident site . . . until 

completion of all investigations pertaining to the accident.] 30 C.F.R. § 50.12. 

3

 The \significant and substantial] language is found in section 104(d)(1) of the Act, 

which refers to \a violation of any mandatory health or safety standard . . . of such nature as 

could significantly and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard.] 30 U.S.C. § 814(d)(1). 

4

 The Secretarycs regulations for proposing penalties state that \reckless disregard] is 

\conduct which exhibits the absence of the slightest degree of care.] 30 C.F.R. § 100.3, Table X. 

5

 Harcourt had become certified as a basic level EMT only eight months earlier, and this 

was the first serious traumatic injury he had attended to. Tr. 356-57, 385-86.

37 FMSHRC Page 471
concluded that the injuries were not life-threatening. Tr. 380-82. Although Harcourtcs authority 

included the ability to call MSHA in the event of a reportable injury, he decided not to do so. Tr. 

389, 393. 

Once Stewart was transferred to an ambulance, EMT Kerry Halverson performed another 

evaluation and observed largely the same injuries; however, he concluded that there was a 

reasonable potential for death, because Stewartcs back pain and the distance he was thrown 

raised the possibility of spinal damage and internal injury. 34 FMSHRC at 1357; Tr. 247-50. 

Signal Peakcs Safety Director, Thomas Rice, was called at home and informed of the 

accident while Stewart was being transported out of the mine. Rice began driving to the mine, 

was called again and informed that Stewart was almost to the surface, and pulled over to wait for 

the ambulance, which he then followed to Roundup Memorial Hospital. Once at the hospital, 

Rice spoke with Harcourt, the ambulance personnel, and the attending physician. Rice testified 

that they all stated the injuries were not life-threatening, so he decided the injury was not 

reportable at that time. 34 FMSHRC at 1362-64; Tr. 452-58. Stewart was then transferred by 

life-flight to another hospital, in Billings, Montana, where it was ultimately determined that he 

had a burst thoracic vertebra, and other injuries including fractures of the left scapula, ribs, and 

sternum. 34 FMSHRC at 1349. 

MSHA learned of the incident from a newspaper reporter who called five days later, on 

December 28, 2009, to inquire about an accident which had occurred at Signal Peakcs mine. Id. 

MSHA Temporary Field Office Supervisor David Hamilton spoke with Rice on the phone that 

afternoon. The Judge credited Hamiltoncs testimony that Rice was not forthcoming with 

information regarding the roof fall or Stewartcs injuries. Id. at 1354; Tr. 212-13. 

The next morning, MSHA Inspector Wayne Johnson visited the hospitals to view 

Stewartcs medical records and speak with medical personnel. The Judge credited Johnsoncs 

recollection of his conversation with Stewartcs attending physician, in which the physician told 

Johnson that he considered Stewartcs injuries to be life-threatening due to the risk of internal 

injury caused by the miner \being blasted 50 to 80 feet down an entry.] 34 FMSHRC at 1349-50; 

Tr. 49-50. 

Johnson traveled to the mine that afternoon. After speaking with Harcourt and other mine 

personnel regarding Stewartcs initial condition and the extent of the blast, Johnson concluded 

that Signal Peak failed to timely report an immediately reportable accident. He then issued 

Citation No. 8463717. Specifically, Johnson concluded that Stewartcs injuries were reportable 

because they were obviously life-threatening, and that the roof fall was reportable because it 

impaired ventilation throughout the mine. 34 FMSHRC at 1351-53, 1377; Tr. 66-67, 77-78, 88; 

Gov. Ex. 1. Johnson also discovered that Signal Peak had mined past the accident site before 

MSHA had an opportunity to investigate, and issued Citation No. 8463718, alleging that Signal 

Peak had failed to preserve the accident site. 34 FMSHRC at 1351-52; Tr. 90-91; Gov. Ex. 2.6

6

 Johnson also issued an uncontested section 103(k) withdrawal order. 34 FMSHRC at 

1351 n.11. Section 103(k) states in part that \[i]n the event of any accident . . . an authorized 

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

insure the safety of any person in the coal or other mine.] 30 U.S.C. § 813(k). 

37 FMSHRC Page 472
Ultimately, MSHA Roof Specialist Pete Del Duca determined that the mine had a 

massive 200 foot thick sandstone roof, which, because it was not well-jointed, had trouble 

breaking up and caving in. By the time the initial cave occurred, mining had progressed 220 feet 

along a 1250 foot face, 10 to 12 feet high. 34 FMSHRC at 1378; Tr. 282-283, 296. When the 

initial cave finally occurred, it caused \a very big blast because all that air [had] to be displaced.] 

Tr. 279. Prior to the MSHA investigation, Signal Peak had done nothing to prevent a similar 

blast from the initial cave in the next longwall panel to be mined. 34 FMSHRC at 1378-79; Tr. 

300-04. Because of MSHAcs intervention, the minecs roof control plan was modified to 

encourage earlier and smaller falls on future longwall panels. 34 FMSHRC at 1378; Tr. 298-99, 

301, 309-13, 525. 

B. The Judge=s Decision 

With respect to Citation No. 8463717, the Judge found that Signal Peak failed to notify 

MSHA within 15 minutes once it knew of \injuries . . . which have a reasonable potential to 

cause death] in violation of section 50.10(b). He found that any reasonable person should have 

known almost immediately that such a reasonable potential for death existed upon finding 

Stewart, based on the distance he was thrown, his difficulty moving, and his obvious back injury. 

34 FMSHRC at 1368-69. 

Alternatively, the Judge also found that Signal Peak failed to timely notify MSHA once it 

knew of \an unplanned roof [ ] fall in active workings that impairs ventilation,] in violation of 

section 50.2(h)(8), as incorporated through section 50.10(d). He found that the roof fall clearly 

impaired ventilation by damaging 78 stoppings, was unplanned because it exceeded 

expectations, and was in active workings despite occurring in the gob because it affected 

ventilation in active workings. Id. at 1376-77, 1380-82. 

The Judge affirmed the S&S designation for Citation No. 8463717. He found that the 

failure to report delayed MSHA involvement, thereby exposing miners to uncorrected 

conditions; that such exposure was likely to occur, noting that the necessary changes to the roof 

control plan would not have happened without MSHA intervention; and that a similar fall would 

likely result in similarly serious injuries as those sustained by Stewart. Id. at 1371-74. 

In finding the violation attributable to reckless disregard, the Judge noted aggravating 

factors: Ricecs unwillingness to provide details to Hamilton over the phone, and Signal Peakcs 

general failure to take corrective action after the roof fall. The Judge rejected Signal Peakcs 

contention that its determination not to report Stewartcs injury was reasonable. Id. at 1374-75. 

Having found that the roof fall and/or injury constituted a reportable accident, and finding 

it undisputed that Signal Peak had mined past the site where the event occurred, the Judge found 

that Signal Peak failed to preserve an accident site in violation of section 50.12. Accordingly, he 

affirmed Citation No. 8463718. Id. at 1375. The Judge also upheld the reckless disregard 

designation, noting that Signal Peak took no steps to notify MSHA before resuming mining in 

the area. Id. at 1376. 

37 FMSHRC Page 473
Based primarily on his determination that both violations constituted egregious failures 

and that the operator placed miners in danger by impairing MSHAcs ability to investigate, the 

Judge increased the penalty for Citation No. 8463717 from $49,500 to $74,250, and increased 

the penalty for Citation No. 8463718 from $1,900 to $9,500. Id. at 1346 n.1, 1382-83. 

II.

Disposition

A. Citation No. 8463717 

1. Violation

a. Section 50.10(b)

Section 50.10(b) requires an operator to \immediately contact MSHA at once without 

delay and within 15 minutes . . . once the operator knows or should know that an accident has 

occurred involving . . . an injury . . . which has a reasonable potential to cause death.] 30 C.F.R. 

§ 50.10(b). We affirm the Judgecs finding that any reasonable person should have known

immediately upon finding Stewart that his injuries had a reasonable potential to cause death.7 34 

FMSHRC at 1368. The failure to notify MSHA of the injuries during the following five days 

clearly violated section 50.10(b). 

As a preliminary matter, we note that the Judge defined a \reasonable potential] as a \not 

far-fetched] possibility, id., while Signal Peak contends it is synonymous with \life-threatening.] 

SP Br. at 11-12. As discussed below, we conclude that Stewartcs injuries clearly fall within the 

realm of a \reasonable potential to cause death,] without the need to further define the term 

reasonable potential to cause death.8

7

 The Judge also delineated subsequent times at which it was clear that Stewartcs injuries 

constituted a reportable accident. 34 FMSHRC at 1369. Although we agree that Signal Peak 

should have understood the need to report the accident to MSHA at each of these later moments, 

we need not discuss them in detail. The reporting period clearly commenced when Harcourt 

reached Stewart after the blast which threw him 50 to 80 feet. 

8

 Commissioner Cohen disagrees with his colleagues that the Commission should not 

take this opportunity to define the phrase \reasonable potential to cause death] contained in 30 

C.F.R. § 50.10(b). The Judge rejected Signal Peakcs argument that a miner must sustain an 

injury that qualifies as \life-threatening] to trigger the reporting requirements of section 

50.10(b). 34 FMSHRC at 1369. The Judge concluded that Signal Peakcs position was 

contradicted by the plain language of the standard which requires only \a reasonable potential to 

cause death.] 

The term \potential] is commonly understood to mean \something [that is] mcapable of 

being,c or something which presents a mpossibility,c albeit not yet in existence.] Id. at 1368. 

 (continuedn) 

37 FMSHRC Page 474
Substantial evidence amply supports the Judgecs finding that Stewartcs condition evinced 

a reasonable potential to cause death.9 Stewart had been thrown a great distance,10 and had a 

significant back protrusion. 34 FMSHRC at 1368-69. In addition, in finding that these signs 

indicated a reasonable potential for death, the Judge relied on Stewartcs own testimony that he 

told nearby miners he was not okay, was in great pain, and had trouble moving. Id. at 1357-58.11

He also credited EMT Halversoncs testimony that the blast and impact could easily have caused 

internal injury and raised concerns that Stewart had suffered spinal damage. Id. at 1357. The 

Judge also based his findings on miner Brandon Mobleycs testimony that, in view of Stewartcs 

pain, back injury, difficulty moving and trouble breathing, Mobley believed Stewart was \really 

hurt.] Id. at 1356; Tr. 156-63. 

Notably, the preamble to the final rule for section 50.10 includes major upper body blunt 

force trauma in a list of types of injuries which pose a reasonable potential for death. 71 Fed. 

Reg. 71,430, 71,434 (Dec. 8, 2006). In addition, Stewartcs obvious back injury, pain, difficulty 

moving, and difficulty breathing increased the possibility that his injuries could be fatal. 

Stewartcs initial condition presented a sufficient possibility of internal injury and spinal damage 

8

 (ncontinued) 

Commissioner Cohen agrees with the distinction identified by the Judge -- a \reasonable 

potential to cause death] is not synonymous with \life threatening.] The Judge correctly 

discerned that the reporting requirement in section 50.10(b) contemplates a subjective immediate 

evaluation governed by the concern for the \possible,] not an objective clinical examination as 

suggested by Signal Peak. See SP Br. at 12-14. The Judgecs analysis is consistent with the 

Commissioncs decision in Cougar Coal Co., 25 FMSHRC 513, 521 (Sept. 2003), in which we 

stated that \the decision to call MSHA cannot be made upon the basis of clinical or 

hypertechnical opinions as to a minercs chance of survival. The decision to call MSHA must be 

made in a matter of minutes after a serious accident.] See also 71 Fed. Reg. 71,430, 71,434 (Dec. 

8, 2006). 

Commissioner Cohen suggests that the Commission adopt the following definition of 

\reasonable potential to cause death]: The reporting requirement of section 50.10(b) is triggered 

when a miner is injured in a manner that would cause a reasonably prudent mine operator to 

consider the possibility that the injured minercs life may be in jeopardy. Obviously, because the 

extent of an injury is not always immediately apparent, the totality of the circumstances, 

including how the injury occurred, should be considered by the mine operator. 

9

 When reviewing a Judgecs factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

\Substantial evidence] means \such relevant evidence as a reasonable mind might accept as 

adequate to support [the Judgecs] conclusion.c] Rochester & Pittsburgh Coal Co., 11 FMSHRC 

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

10 The Judge credited Inspector Johnsoncs testimony that both mine and hospital 

personnel informed him that the blast had thrown Stewart 50-80 feet. 34 FMSHRC at 1352. Even 

the 40 foot estimate provided by Rice is a significant distance. Tr. 459. 

11 According to Inspector Johnson, Harcourt told him that Stewart \was in excruciating 

pain, ten plus on a pain scale, pretty critical.] Tr. 70. 

37 FMSHRC Page 475
that a reasonable person should have recognized that an injury with a reasonable potential to 

cause death had occurred. 

Signal Peak argues that the Judge erred in giving more weight to external indicators of 

injury than to Harcourtcs evaluation of the actual injuries, which Signal Peak claims established 

that Stewartcs life was not in danger. However, the evaluation did not establish that Stewartcs 

injuries posed no reasonable potential for death. While Harcourt did find that Stewart had some 

stable vital signs and no obvious signs of concussion or internal injury, Tr. 370-74, the 

evaluation was neither conclusive nor exhaustive. Harcourt testified that he did not take all of 

Stewartcs vital signs and therefore could not get an accurate assessment, and that he \absolutely] 

did not know what was wrong with Stewart. Tr. 391-92, 396. Clearly, Stewart was severely 

injured and the fortunate fact that he did not die from the injuries does not detract from a finding 

that the readily observable nature of his injuries presented a reasonable potential to cause death. 

Section 50.10 requires operators to notify MSHA \immediately . . . at once without delay 

and within 15 minutes.] 30 C.F.R. § 50.10. Prompt reporting is clearly essential to the standard, 

and requires a prompt determination as to whether an accident has occurred. See Consolidation 

Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989) (finding that section 50.10 \accords operators a 

reasonable opportunity for investigation,] but that the investigation \must be carried out . . . in 

good faith without delay and in light of the regulationcs command of prompt, vigorous action]); 

see also 71 Fed. Reg. 12,252, 12,260 (Mar. 9, 2006) (noting that \[t]aking too much time to 

determine whether . . . an accident occurred] is a common reason for violations of section 

50.10). 

Given the need for a prompt determination inherent in section 50.10, the Commission has 

found that readily available information such as the nature of the accident is highly relevant in 

determining whether an injury is reportable, while permitting operators to wait for a medical or 

clinical opinion would \frustrate the immediate reporting of near fatal accidents.] Cougar Coal 

Co., 25 FMSHRC 513, 520-21 (Sept. 2003) (holding that an electric shock, 18-foot fall, and head 

injury had a \per se] reasonable potential for death); see also Mainline Rock & Ballast, Inc., 693 

F.3d 1181, 1188-89 (10th Cir. 2012) (holding that an operator should have been alerted to the 

potential for death by the fact that the miner was pulled through a roller). Here, the Judge 

properly considered the nature of the accident, i.e., being propelled a great distance, as well as 

readily observable indicators of trauma such as Stewartcs severely injured back, difficulty 

moving, and great pain. 

Although the testimony and the partiesc arguments primarily focused on Safety Manager 

Ricecs actions, Harcourt testified that he had the authority to notify MSHA in the event of an 

accident resulting in a reasonable potential to cause death, Tr. 389, and he failed to do so. His 

failure to call, or to have a call made, was sufficient to constitute a violation. In this respect, an 

operator may not designate one specific person, such as a safety manager, to place the immediate 

call to MSHA. Once a person with sufficient authority to call learns of an event injuring a miner, 

the clock begins to run on the period for evaluation of whether the injury presents a reasonable 

potential to cause death and a determination of whether a call is required. 

37 FMSHRC Page 476
 We emphasize that an operator, in determining whether it is required to notify MSHA 

under 30 C.F.R. § 50.10, must resolve any reasonable doubt in favor of notification. As stated in 

the preamble to the final rule addressing 30 C.F.R. § 50.10 in 2006: 

In emergencies, where delay in responding can mean the difference 

between life and death, immediate notification leads to the 

mobilization of an effective mine emergency response. Immediate 

notification activates MSHA emergency response efforts, which 

can be critical in saving lives, stabilizing the situation, and 

preserving the accident scene. Immediate notification also 

promotes Agency assistance of the minecs first responder efforts. 

In other situations, it allows for a range of appropriate Agency 

responses depending on the circumstances. It alerts MSHA to 

trends or warning signals that can trigger a special inspection, an 

investigation, or targeted enforcement. This communication also 

encourages operators and miners to work with MSHA to develop 

procedures that prevent incidents from resulting in more hazardous 

situations, ultimately leading to disasters. 

71 Fed. Reg. at 71,431. Although notification of MSHA may result in delays in production, 

Congress declared in section 2(a) of the Mine Act that \the first priority and concern of all in the 

coal or other mining industry must be the health and safety of its most precious resource o the 

miner.] 30 U.S.C. § 801(a). 

In addition, as the Commission stated in Cougar Coal, \[i]n the field, the decision to call 

MSHA cannot be made upon the basis of clinical or hypertechnical opinions as to a minercs 

chance of survival. The decision to call MSHA must be made in a matter of minutes.] 25 

FMSHRC at 521. Yet, before speaking with Harcourt and deciding not to report the injury, Rice 

spent 30 minutes in his car waiting for the ambulance. During that time, he called the mine to 

find out whether the ambulance had left, but did not gather any substantive information from onsite personnel regarding the roof fall or Stewartcs injuries. Tr. 453, 501. Ricecs testimony 

indicates that he waited for a medical opinion because he was hoping for a level of certainty with 

respect to Stewartcs prognosis. Tr. 472-74, 479. By waiting for a medical opinion at the hospital 

rather than spending that time gathering readily available information, information which in this 

case would have been sufficient to trigger the notification requirement, Rice failed to conduct a 

sufficiently prompt investigation. See, e.g., Consolidation Coal, 11 FMSHRC at 1936-38 

(finding that a supervisorcs 45-minute investigation was not sufficiently prompt, because he 

could have ascertained the necessary facts to determine that an accident occurred during the 

initial call informing him of the incident). 

Given the mechanism of Stewartcs injuries o being propelled 50-80 feet o and the 

apparent severity of his injuries, whether the incident was immediately reportable was not a close 

call. The Judge properly found on the basis of substantial evidence that a reasonable person 

would have concluded that Stewartcs injuries posed a reasonable potential for death based on the 

available information. 

37 FMSHRC Page 477
b. Section 50.10(d)

Section 50.10(d) states generally that \any other accident] is also immediately reportable. 

30 C.F.R. § 50.10(d). For the purposes of the Part 50 reporting requirements, the definition of 

\accident] includes \an unplanned roof or rib fall in active workings that impairs ventilation or 

impedes passage.] 30 C.F.R. § 50.2(h)(8) (emphasis added). It is undisputed that the roof fall at 

issue occurred in the longwall gob, which is not an active working.12 34 FMSHRC at 1377 n.54. 

The Judge nevertheless accepted the Secretarycs alternate theory of liability, finding that the roof 

fall was an accident as defined in section 50.2(h)(8) because it affected ventilation in active 

workings. Id. at 1381-82. We find that the regulatory language plainly requires that the fall occur 

in active workings; therefore the roof fall here was not an accident as defined in section 

50.2(h)(8), and the failure to report it was not a violation of section 50.10(d). 

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

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

meaning or unless such a meaning would lead to absurd results. Island Creek Coal Co., 20 

FMSHRC 14, 18-19 (Jan. 1998) (citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 

1987) (citations omitted)). The language of section 50.2(h)(8) is clear. The regulation addresses 

roof falls in active workings; use of the word \in] precludes a finding of an accident where the 

fall occurred outside of active workings. 

We note that the Secretarycs litigating position in this matter, i.e., that roof falls in the 

gob are immediately reportable if they impair ventilation in nearby active workings, is not 

reflected in MSHAcs Program Policy Letter regarding the \Reporting of Unplanned Roof Falls in 

Accordance with 30 C.F.R. § 50.10.] PPL No. P12-V-03 (May 11, 2012). The Letter repeatedly 

uses the phrase \in active workings] when enumerating the types of falls that must be reported, 

and states that \[a]n active working does not include worked out areas or areas adjacent to active 

workings.] Id. This exclusion of nearby areas suggests that MSHA has traditionally interpreted 

the \in active workings] requirement for unplanned roof falls more narrowly.13 

12 \Active workings] are defined as \any place in a coal mine where miners are normally 

required to work or travel.] 30 U.S.C. § 878(g)(4). 

13 While the Secretarycs Program Policy Letters cannot prescribe binding rules of law, see 

The American Coal Co., 34 FMSHRC 1963, 1970-71 (Aug. 2012), they can be instructive. The 

Secretarycs Program Policy Manual can clarify or explain a regulationcs language and therefore 

provide instruction to mine operators. See Tilden Mining Co., 36 FMSHRC 1965, 1969-70 (Aug. 

2014). MSHA considers Program Policy Letters \an integral part of the Program Policy 

Manual.] MSHA, Program Policy Manual, www.msha.gov/REGS/COMPLIAN/PPM/PMMA 

INTC.HTM (last visited Feb. 25, 2015). 

37 FMSHRC Page 478
 Only a fall which occurs in active workings may be an \accident] as defined in section 

50.2(h)(8), and the fall here occurred outside of active workings in the longwall gob.14 Signal 

Peakcs failure to report the roof fall did not constitute a failure to report an accident in violation 

of section 50.10(d).15 However, because Stewartcs injuries constituted an \accident] pursuant to 

section 50.10(b), the Judgecs finding of a violation is affirmed. 

2. S&S

As a threshold matter, only violations of mandatory standards may be designated as S&S. 

See supra n.3. We find that the Judge properly rejected Signal Peakcs claim that section 50.10 is 

not a mandatory standard. 34 FMSHRC at 1348. Section 50.10 was initially issued as a 

regulation. Cyprus Emerald Res. Corp., 195 F.3d 42, 44 (D.C. Cir. 1999). However, in 2006, a 

revised section 50.10 was published as an Emergency Temporary Standard (\ETS]), then 

adopted as a permanent standard in a Final Rule, in accordance with section 101 of the Act.16 71 

Fed. Reg. 12,252 (Mar. 9, 2006); 71 Fed. Reg. 71,430 (Dec. 8, 2006); see Phelps Dodge Tyrone, 

Inc., 30 FMSHRC 646, 651 n.4 (Aug. 2008). 

 

Signal Peak claims that the final rule merely revised a regulation and showed no intent to 

create a mandatory standard. These arguments were addressed in Pine Ridge Coal Co., 33 

FMSHRC 987 (Apr. 2011) (ALJ). The Judge in that case held that section 50.10 was properly 

promulgated according to procedures outlined in section 101, and that publishing the ETS and 

Notice of Formal Rule Making in the Federal Register provided notice to operators of the 

Secretarycs intent to enforce section 50.10 as a mandatory standard. Id. 1003-10. We agree. 

 14 Although the roof fall caused an air blast which damaged stoppings in active workings, 

and thus impaired ventilation, Del Duca testified that the stoppings were not hit with anything 

from the roof fall other than the air blast. Tr. 331; 34 FMSHRC at 1381 n.57. We do not address 

the question of whether a roof fall outside of active workings which expels physical debris or 

other material into active workings could be considered an \accident] within the meaning of 30 

C.F.R. § 50.2(h)(8). 

15 We can understand that from a policy standpoint, it might be useful to consider an 

unplanned roof fall in the gob which impairs ventilation or impedes passage in active areas as a 

reportable accident under 30 C.F.R. § 50.10(d). If Mike Stewart had not been injured in this 

accident, under our holding today the roof fall would not have been an occurrence which needed 

to be reported to MSHA. If that had been the case, the resulting changes to Signal Peakcs roof 

control plan, which encouraged earlier and smaller caves on future longwall panels, 34 

FMSHRC at 1378-79, would not have been made. However, we are constrained by the language 

of the regulation to rule as we have. 

16 Section 101(b) states that the Secretary shall provide an Emergency Temporary 

Standard if he determines that miners are exposed to a grave danger. The provision outlines the 

process for transforming the temporary standard into a mandatory standard through notice-andcomment rulemaking, as described in section 101(a). 30 U.S.C. § 811(b). 

37 FMSHRC Page 479
Having determined that Citation No. 8463717 may be designated as S&S, we also 

conclude that the Judge properly affirmed the S&S designation. A violation is S&S if, based on 

the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., 

Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(Jan. 1984), the Commission set forth the following four-part test to evaluate whether a violation 

is properly designated as S&S:

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.

Accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. 

Sec'y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of 

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

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

 Signal Peak contends that the failure to timely report the accident to MSHA did not 

contribute to a hazard, because MSHAcs involvement was not necessary to remedy Stewartcs 

injuries. This interpretation unduly narrows the purpose of section 50.10. While immediate 

rescue efforts are a significant concern, section 50.10 is also intended to facilitate MSHAcs 

ability to investigate and remedy the cause of the accident. The preamble to the final rule states: 

Not only can [timely reporting] be vital to the saving of lives, but it 

can be instrumental to having expert Agency personnel at the scene 

with authority to assure that the accident site remains undisturbed 

and preserved for investigation into causes. 

. . . roof falls . . . for example, may necessitate critical, pro-active 

corrective actions and the need for emergency response assistance. 

71 Fed. Reg. at 71,435. This is properly reflected in the Judgecs determination that Signal Peakcs 

failure to immediately report the accident created a hazard by interfering with MSHAcs ability to 

investigate the cause of the accident, thereby exposing miners to the danger resulting from roof 

conditions resulting in an unexpectedly massive initial roof fall.17 34 FMSHRC at 1371-73. 

17 Although the accident at issue is Stewartcs injury rather than the roof fall, an 

investigation into the cause of the accident necessarily would, and ultimately did, lead MSHA to 

discover the roof conditions that caused the unexpectedly massive initial fall and to suggest 

means (hydrofracking) to prevent such an event on future panels. Tr. 310. 

37 FMSHRC Page 480
Signal Peak also contends that the hazard was unlikely to result in a serious injury in the 

context of continuing mining operations. Specifically, Signal Peak states that a similarly 

dangerous roof fall was unlikely to recur, noting that subsequent falls on the cited panel would 

have been smaller than the initial fall which injured Stewart, and that MSHA permitted mining to 

resume on the cited panel without requiring modifications to the roof control plan. However, 

these factors at most establish that a similar fall was unlikely on the cited longwall panel.18 

We conclude that substantial evidence supports the Judgecs finding that the hazard 

contributed to the reasonable likelihood of a similarly dangerous cave when Signal Peak began 

its subsequent longwall panel. 34 FMSHRC at 1373. Signal Peakcs chief engineer agreed with 

the inspector that MSHAcs recommended changes to the roof control plan were necessary and 

effective in preventing a similarly large blast on the next longwall panel. Tr. 298-99, 523-25. 

These changes did not originate with Signal Peak. Following the roof fall and ensuing blast 

of air on December 23, the operator simply fixed the ventilation damage and resumed mining. 

34 FMSHRC at 1371. In light of Signal Peakcs failure to initiate contact with MSHA or preserve 

the accident site, the investigation and modification of the roof control plan prior to beginning 

the next panel would not have occurred without MSHAcs intervention. 

Signal Peak does not dispute that any injury that occurred from a blast resulting from a 

roof fall in the gob of the size that occurred on December 23, 2009, would be of a reasonably 

serious nature. Accordingly, we affirm the Judgecs finding that the violation was significant and 

substantial. 

3. Reckless Disregard

The Judge based his determination of reckless disregard on findings regarding several 

elements of Signal Peakcs conduct, all of which are supported by the record. First, the Judge 

found evidence, based on Ricecs evasiveness during his phone conversation with MSHA 

Supervisor Hamilton, that Signal Peak knew it had a duty to report immediately but failed to do 

so. 34 FMSHRC at 1374. He relied on Hamiltoncs testimony, which he deemed \highly 

credible,] that he had to pry every bit of information from Rice. Id. at 1354; Tr. 212-15. A 

Judgecs credibility determination is entitled to great weight and may not be overturned lightly. 

Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992). 

Second, the Judge found that Signal Peak failed to take any steps to ensure that the roof 

fall was investigated, thereby placing miners at future risk. 34 FMSHRC at 1374. It is 

uncontested that Signal Peak did not initiate contact with MSHA after the accident, and Signal 

Peak presented no evidence of an independent investigation. As discussed above, without an 

18 MSHAcs inspector and roof specialist conceded that the initial fall on a longwall panel 

is generally the largest. Tr. 93-94, 282-83. However, the record does not indicate whether 

subsequent falls would still have been large enough to cause serious injury. It is also true that 

MSHA allowed mining to resume on the cited panel without requiring modifications to the roof 

control plan. Tr. 302-03. But this happened only after additional safety precautions were put in 

place at MSHAcs instigation. Tr. 304-06. 

37 FMSHRC Page 481
investigation, necessary changes to the roof control plan would not have been made, and miners 

would have been at risk on subsequent panels. We conclude that substantial evidence supports 

the Judgecs finding of reckless disregard. 

The Judge considered and rejected Signal Peakcs argument that its determination that the 

injuries were not immediately reportable was reasonable. Instead, he found that Signal Peak 

missed several discrete points at which it was clear from Stewartcs condition that Signal Peak 

had an obligation to report immediately. In short, the duty to report was obvious at multiple 

points in time. 34 FMSHRC at 1374. As discussed above, see supra p. 6, substantial evidence 

supports the Judgecs determination that the operator should have known that Stewartcs injuries 

were immediately reportable, i.e., that it was unreasonable to conclude that the injuries were not 

immediately reportable.

To summarize the Judgecs findings, all of which are supported by substantial evidence: 

(a) a roof fall in the longwall gob occurred with such force that it damaged 78 stoppings; (b) the 

blast picked up miner Mike Stewart and threw him 50 to 80 feet; (c) Stewart suffered severe and 

obvious injuries, had trouble moving and trouble breathing, and was in \excruciating] pain; (d) it 

took one-and-a-half hours to bring Stewart out of the mine, during which time it was impossible 

to fully take his vital signs; (e) Stewart was taken by ambulance to a hospital and then by life 

flight to another hospital; (f) the doctor at the first hospital believed \absolutely] that Stewartcs 

injuries were life-threatening; (g) Signal Peak never contacted MSHA about the accident; 

(h) rather, as the Judge noted, 34 FMSHRC at 1359, Signal Peakcs concern was to resume 

production, which it did three days later, after fixing the ventilation damage; (i) in resuming 

mining, Signal Peak changed conditions at the accident scene, thereby impeding any 

investigation by MSHA; (j) Signal Peak did nothing to investigate causes of the enormous roof 

fall and resulting blast or to prevent recurrences in future longwall panels; (k) MSHA found out 

about the accident from a newspaper reporter, five days after it occurred; (l) when contacted by 

MSHA, Signal Peakcs Safety Director was \anything but forthcoming] in answering questions; 

and (m) Signal Peak filed the Form 7000-1 accident report one-and-a-half hours after the Safety 

Director first spoke with MSHA. This pattern of behavior fully supports the Judgecs conclusion 

that Signal Peak acted with reckless disregard in failing to report Stewartcs injury to MSHA. 

B. Citation No. 8463718 

Section 50.12 prohibits operators from altering an \accident site] before investigations 

are completed. 30 C.F.R. § 50.12. Signal Peak does not deny that it resumed mining at the site of 

Stewartcs injury before MSHA was able to investigate, but contends that it did not fail to 

preserve an accident site in violation of section 50.12 \[f]or the same reasons] that it did not fail 

to report an accident in violation section 50.10, i.e., the injury was not an accident. SP Br. at 27. 

Having already found that the Judge properly identified Stewartcs injury as a reportable accident, 

see supra pp. 6-8, we affirm the Judgecs finding that Signal Peak failed to preserve the accident 

site in violation of section 50.12.19 

19 Signal Peak does not explicitly challenge the Judgecs finding of reckless disregard for 

Citation No. 8463718. However, if Signal Peak intended to also challenge the reckless disregard 

(continuedn) 

37 FMSHRC Page 482
C. Penalties 

In assessing penalties, the Judge raised the amount for Citation No. 8463717 from 

$49,500 as proposed by the Secretary to $74,250, and similarly raised the penalty for Citation 

No. 8463718 from $1,900 to $9,500. 34 FMSHRC at 1346 n.1. 

First, Signal Peak contends, and the Secretary agrees, that the Judge erred by imposing a 

penalty for Citation No. 8463717 in excess of the $70,000 maximum for general non-flagrant 

violations of mandatory standards provided by section 110(a)(1) of the Act.20 We find that the 

Judge did improperly exceed the relevant statutory maximum. However, as provided in section 

110(a)(2) of the Act, the relevant maximum assessable penalty for failing to immediately report 

an injury with a reasonable potential to cause death is $60,000. 

Section 110(a)(2) states that an operator \who fails to provide timely notification to the 

Secretary as required under section 103(j) of this [Act] (relating to the 15 minute requirement) 

shall be assessed a civil penalty by the Secretary of not less than $5,000 and not more than 

$60,000.]21 30 U.S.C. § 820(a)(2). Section 103(j) requires an operator to notify the Secretary 

\within 15 minutes of the time at which the operator realizes that the death of an individual at the 

mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to 

cause death, has occurred.] 30 U.S.C. § 813(j). This is the same conduct required by sections 

19 (ncontinued) 

finding \for the same reasons] as for Citation No. 8463717, i.e., that it reasonably believed the 

injuries were not immediately reportable, that argument is again rejected. See supra p. 12.

20 Section 110(a)(1) of the Act states that the \operator of a coal or other mine in which a 

violation occurs of a mandatory health or safety standard or who violates any other provision of 

this [Act], shall be assessed a civil penalty by the Secretary which penalty shall not be more than 

$50,000 for each such violation.] 30 U.S.C. § 820(a)(1). In 2008, the maximum was adjusted to 

$70,000 through rulemaking to account for inflation, pursuant to the Federal Civil Penalties 

Inflation Adjustment Act of 1990 (Pub. L. No. 101-410, 104 Stat. 890 (28 U.S.C. § 2461 note)), 

as amended by the Debt Collection Improvement Act of 1996 (Pub. L. No. 104-134, Title III, 

Apr. 26, 1996, 110 Stat. 1321) and the Federal Reports Elimination Act of 1998 (Pub. L. No. 

105-362, Title XIII, Nov. 10, 1998, 112 Stat 3280). See 30 C.F.R. § 100.3(a); 73 Fed. Reg. 7206, 

7207-08 (Feb. 7, 2008).

21 In 2012, the $60,000 maximum was raised to $65,000 to account for inflation. See 

supra n.20; 30 C.F.R. § 100.4(c); 77 Fed. Reg. 76,406, 76,406-07 (Dec. 28, 2012). However, 

adjustments for inflation \shall apply only to violations which occur after the date the increase 

takes effect.] Sec. 6, Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. No. 101-

410, 104 Stat. 890 (28 U.S.C. § 2461 note)), as amended by the Debt Collection Improvement 

Act of 1996 (Pub. L. No. 104-134, Title III, § 31001(s)(2), Apr. 26, 1996, 110 Stat. 1321) and 

the Federal Reports Elimination Act of 1998 (Pub. L. No. 105-362, Title XIII, §§ 1301(a)(1), 

1301(a)(2), Nov. 10, 1998, 112 Stat 3280). These violations occurred in 2009; therefore the preadjustment maximum of $60,000 applies.

37 FMSHRC Page 483
50.10(a), (b), and (c) of the Secretarycs regulations. Accordingly, the assessment of a penalty for 

a non-flagrant violation of section 50.10(b) is governed by section 110(a)(2) of the Act.22 The 

Judge erred by assessing a penalty in excess of $60,000 for Citation No. 8463717. 

Additionally, Signal Peak alleges that the Judge did not provide adequate justification to 

account for the difference between the Secretarycs proposed penalties and the penalties which the 

Judge independently assessed. Although Commission Judges are accorded broad discretion in 

assessing civil penalties, such discretion is not unbounded, and must reflect proper consideration 

of the penalty criteria set forth in section 110(i) of the Act.23 See, e.g., Cantera Green, 22 

FMSHRC 616, 620 (May 2000). In this regard, the Commission has recognized that substantial 

deviations from the Secretarycs proposed assessment must be adequately explained. Id. at 621. 

However, the Judgecs findings need not be exhaustive; rather, they must be sufficient to provide 

the Commission with a basis for determining whether the Judge complied with the requirement 

to consider the section 110(i) criteria. Id. 

The Judge addressed all six section 110(i) criteria, particularly noting the impact of his 

gravity and negligence findings on the assessed penalties. 34 FMSHRC at 1382-83. With regard 

to gravity, the Judge emphasized that both violations placed miners in danger by interfering with 

MSHAcs ability to investigate. Id. at 1383. With regard to negligence, the Judge considered both 

violations \egregious failures,] noting that the \decision not to call MSHA, in violation of . . . 

[section] 50.10, was in no way a borderline call for which reasonable minds could differ,] and 

noted that the Secretary described Signal Peakcs failure to inform MSHA of the accident before 

22 Penalties for non-flagrant violations of section 50.10(d) (for failure to report \any other 

accident]) are governed by section 110(a)(1) of the Act rather than section 110(a)(2), as these 

violations have no counterpart in section 103(j). Here, however, there was no violation of section 

50.10(d) because the roof fall was not, in and of itself, a reportable accident. See supra p. 9. 

Citation No. 8463717 involves a non-flagrant violation of section 50.10(b) only. Therefore the 

maximum assessable penalty is governed by section 110(a)(2) of the Act. The lower penalty for 

an accident involving death or a reasonable potential to cause death is an anomalous result given 

Congressc concern in enacting section 103(j). Nevertheless, it is compelled by a fair reading of 

the various Acts and regulations involved. 

23 Section 110(i) states in relevant part: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operatorcs history of 

previous violations, the appropriateness of such penalty to the size 

of the business of the operator charged, whether the operator was 

negligent, the effect on the operatorcs ability to continue in 

business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

30 U.S.C. § 820(i). 

37 FMSHRC Page 484
resuming mining as a \blatant disregard of [section 50.12].]24 Id. at 1383, 1375. Given the broad 

discretion accorded to Commission Judges within the confines of the section 110(i) framework, 

the Judgecs findings of particularly high gravity and negligence adequately explain the deviation 

between the proposed and assessed penalties.25 

We therefore conclude that, except to the extent that the penalty for Citation No. 8463717 

exceeds the statutory maximum, the Judge did not abuse his discretion in raising the penalty 

amounts. 

24 The Judge also found that Signal Peak did not show good faith, as that term is 

employed under 30 U.S.C. § 820(i). 34 FMSHRC at 1383.

25 Relying on our decision in Hidden Splendor Resources, Inc., 36 FMSHRC ___ (Dec. 

2014), Commissioner Althen would vacate and remand this decision, instructing the Judge to 

explain why he substantially diverged from the Secretarycs penalty proposal. Slip op. at 17. 

However, the two cases are readily distinguishable. In Hidden Splendor, the Judge explained 

why the penalty would not affect the operatorcs ability to pay, but as for the other factors, simply 

stated: \I have reviewed the Assessed Violation History Report, which is not disputed. At all 

pertinent times, Hidden Splendor Resources, Inc. was medium in size. The violations were 

abated in good faith. The gravity and negligence findings are set forth above.] 34 FMSHRC 

3310, 3380-81 (Dec. 2012) (ALJ). In other words, the Judge did not specify how his findings on 

gravity, negligence, or any other factor (apart from the operatorcs ability to pay) impacted his 

penalty assessment. In contrast, in this case the Judgecs penalty analysis details the gravity and 

negligence associated with the citations. In addition to the negligence findings cited above, the 

Judge specified that \regarding the violation of 30 CFR § 50.12, the failure of Signal Peak to 

preserve the evidence, that can be viewed as more serious because it eliminated MSHAcs ability 

to assess the accident site.] 34 FMSHRC at 1383-84. In other words, unlike in Hidden Splendor, 

the Judge here specified which factors he weighed more heavily and why. We note that the 

Commission has held that Judges have not abused their discretion by more heavily weighing 

gravity and negligence than the other penalty criteria. Lopke Quarries, Inc., 23 FMSHRC 705, 

713 (July 2001); Musser Engineering, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010). 

Commissioner Althen also states that the Judge erred in assessing the size of the 

operation, by rejecting the tonnage in Exhibit A in favor of testimony regarding shipping goals. 

However, it is only 30 C.F.R. Part 100, governing the Secretarycs proposed penalties, that refers 

to tonnage. See 30 C.F.R. § 100.3(b). Section 110(i), governing a Judgecs assessment of 

penalties, only requires that a Judge consider whether the penalty is appropriate to the size of the 

business. Considering testimony regarding numbers of employees and shipping goals seems to fit 

within that description. 

37 FMSHRC Page 485
III. 

Conclusion

For the foregoing reasons, we vacate the $74,250 penalty imposed by the Judge for Order 

No. 8463717 and impose a penalty of $60,000. The Judgecs findings with respect to Citation 

Nos. 8463717 and 8463718 are otherwise affirmed. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

37 FMSHRC Page 486
Commissioner Althen, concurring in part, dissenting in part: 

I concur with the Majority on all issues except the decision to assess a maximum penalty 

for Citation No. 8463717 and to affirm the $9,500 assessment for Citation No. 8463178.1 I 

would find the Judge abused his discretion by increasing by fifty percent (50%) and five hundred 

percent (500%), respectively, penalties already specially assessed by the Secretary without 

acknowledging that the increases are substantial or explaining the basis for such substantial 

increases and by erroneously applying certain statutory penalty criteria. 

Background

 A. Penalty Assessments 

The Commission has held that if a Judgecs penalty assessment differs substantially from 

the Secretarycs proposal, the Judge must explain the variance in the assessed penalty from the 

proposed penalty. Sellersburg Stone Co., 5 FMSHRC 287, 293 (1983), affTd, 736 F.2d 1147 

(D.C. Cir. 1986); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC 

616, 620-21 (May 2000). The Judge need not make exhaustive findings and may assign different 

weights to different criteria, but must provide an adequate explanation of why the penalty 

assessment diverges from the penalty proposal. Cantera Green, 22 FMSHRC at 622. 

In the recent decision in Hidden Splendor Resources, Inc., 36 FMSHRC __ (Dec. 2014), 

the Commission vacated and remanded a reduction of a penalty from a proposed $6,459 to an 

assessed $5,000 o a relatively paltry reduction of $1,459 and 23% respectively. Our basis was 

that, even though the Judge considered and made findings on all six penalty criteria, he \did not 

offer any explanation for the divergence.] Id., slip op. at 6. Having so recently found an 

explanation necessary for very small dollar and percentage changes, it seems clear that an 

explanation is even more important for changes in the tens of thousands of dollars and of 50% 

and 500% o decreases and increases from penalty proposals should be subject to the same 

standard. Only if a proper explanation is provided for the assessment and if the penalty criteria 

are properly applied is the final assessment not arbitrary. Id.; Unique Electric, 20 FMSHRC 

1119, 1123 n.4 (Oct. 1998) (quoting Sellersburg Stone, 5 FMSHRC at 293); Cantera Green, 22 

1

 The Secretary proposed penalties of $49,500 and $1,900 for Citation No. 8463717 and 

Citation No. 8463178, respectively. The Judge increased the penalties to $74,250 and $9,500, 

respectively. 34 FMSHRC at 1346 n.1. The Commissioncs reduction of the penalty for Citation 

No. 8463717 to the maximum allowed by law does not obviate the abuse of discretion in failing 

to explain the substantial change from the penalty assessed by MSHA. Further, the maximum 

penalty of $60,000 and the unchanged penalty of $9,500 continue to constitute substantial 

changes from the assessed penalties. Although the Commission has not defined the term 

\substantial] or reduced the term to a percentage variance, all must agree that changes of 50% 

from $49,500 to $74,250 ($24,750) and of 500% from $1,900 to $9,500 ($7,600) are substantial.

37 FMSHRC Page 487
FMSHRC at 621-23; Virginia Slate, 23 FMSHRC 482, 493 (May 2001); Rushford Trucking, 22 

FMSHRC 598, 602 (May 2000); Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).2

B. Special Assessments 

The regular penalty point schedule set out in 30 C.F.R. § 100.3 provides a basis for 

dispassionate and uniform penalty proposals. In this case, however, MSHA exercised its 

unbridled discretion to propose a penalty as a \special assessment] summarily provided for at 30 

C.F.R. § 100.5. Special assessments are made on the basis of narrative findings rather than the 

uniform tables for regular assessments. 30 C.F.R. § 100.5(b). Although the regulations do not 

explain how specially assessed penalties are calculated, the Secretary has posted information 

styled as \guidelines] on the MSHA website.3 Under the guidelines, except perhaps in very rare 

instances, specially assessed penalty proposals are based upon finding a heightened degree of 

negligence and/or gravity o that is, negligence or gravity apparently beyond the contemplation of 

the regular point system. 4 

2

 I do \rely[ ] on] Hidden Splendor for the accepted proposition that Judges must explain 

substantial divergences from the Secretarycs penalty proposal. See slip op. at 15-16 n.25. Hidden 

Splendor is most notable here, however, as a case in which the Judgecs findings on each of the 

penalty criteria were essentially parallel to the Secretary. We remanded the case for an 

explanation of a penalty reduction of less than $1,500 as compared to the nearly $25,000 

increase in this case. The sauce for the goose must be the sauce for the gander. In that vein, one 

may wonder if the majority would accept a fifty percent penalty reduction partially based upon a 

finding that the operator apparently planned to reduce production in coming years. See infra p. 

20. 

3 Available at www.msha.gov/PROGRAMS/ASSESS1.htm (follow \Special Assessment 

Guidelines] hyperlink) (last visited February 26, 2015). As it behooves Commission Judges to 

explain substantial divergence from the proposed penalty, it would seem to behoove the 

Secretary to explain substantial divergence from the regular penalty criteria. However, the Mine 

Act permits the Secretary to propose penalties on the basis of narrative findings. It is up to the 

Commission to guard against overly lenient or punitive penalty proposals by the Secretary. 

4

 The primacy of negligence and gravity is shown by MSHAcs explanation that the 

assessments are made on the basis of five of the six criteria (omitting the effect on the operatorcs 

ability to continue in business) and the description of special assessment penalty point 

assignments for the other three penalty criteria: 

(1) For size of business, the guidelines state \[f]or most special assessments, MSHA 

assigns the regular assessment penalty points for size derived from § 100.3(b), Tables I through 

V;] 

(2) For violation history, \MSHA assigns the regular assessment penalty points for 

Violation History from Tables VI and VII [of § 100.3(c)]. For special assessments MSHA 

assigns the regular assessment penalty points for Repeat Violation History from Tables VIII and 

IX [of § 100.3(c)], except for flagrant violations;] and, 

(3) For abatement and good faith, the guidelines state \[i]n general, if an operator abates 

a citation within a reasonable period of time, as prescribed by the citation, the total number of 

 (continuedn) 

37 FMSHRC Page 488
The subjective nature of special assessments does not render MSHAcs role in the 

assessment process irrelevant to a Judgecs assessment. However, it is important that the Judge 

recognize the specially assessed nature of the proposed penalty in explaining why his/her 

findings warrant a substantial increase or decrease from the penalty proposal. Otherwise, the 

Commission cannot know whether the Judge took into account, or even realized, that MSHA 

made a special penalty proposal on the basis of heightened negligence and/or gravity without the 

uniformity and predictability provided by the regular point system. 

C. The Judgecs penalty decision 

Regarding Citation No. 8463717, the Secretary specially assessed the penalty at $49,500. 

As in Hidden Splendor, the Judge essentially agreed with the findings of MSHA with respect to 

the six penalty criteria, except for a lesser degree of injury to the one affected miner and 

incorrect application of the size of business criterion. He then assessed a penalty of $74,250. 34 

FMSHRC at 1384. 

Regarding Citation No. 8463718, MSHA proposed a specially assessed penalty of 

$1,900. The Judge agreed with MSHAcs finding except he found the hazard to have occurred, 

thereby warranting a five-fold increase from the penalty proposed by MSHA from $1,900 to 

$9,500. Id.

5

 

Errors Warranting Remand

The Judgecs decision is a well-written expository opinion. However, the Judge made a 

number of errors and/or oversights affecting his penalty assessment that jeopardize the credibility 

of the penalty assessment process and fail to explain sufficiently the very substantial 

modifications to the specially assessed penalties proposed by the Secretary. 

4

 (ncontinued) 

special assessment penalty points is reduced by 2 points.] The guidelines also permit special 

assessment penalty points for an unwarrantable failure, imminent danger order, and for defiance 

of a withdrawal order. 

5

 Although explanations are best made explicitly, an explanation sometimes may be 

implicit. For example, the Judgecs finding that the hazard occurred might explain implicitly a 

substantial increase in the penalty for violation of 30 C.F.R. § 50.12. We note that, while the 

violation occurred, MSHA was able to examine the site and make suggestions to prevent 

recurrence. 

Slip op. at 3. The Judgecs finding that the hazard occurred, therefore, most likely reflects 

a finding that the hazard would have occurred if a reporter had not made an inquiry regarding the 

incident. Even that finding might have constituted an implicit explanation had the Judge not 

committed other errors indicating more may have been at work in the increased penalty than a 

different gravity finding. 

37 FMSHRC Page 489
First, with respect to Citation No. 8463717, the Judge assessed a penalty of $74,250, an 

amount that is exactly 150% of the proposed penalty of $49,500 but that clearly exceeded the 

statutory maximum penalty. It is taken as a given that every Judge knows the maximum penalties 

under the Mine Act. It is also a given that a Judge would not intentionally violate the Mine Act 

by assessing a penalty not permitted by law. We may only speculate on the reason for this error o 

simple oversight, error by an assistant, commitment to a 150% penalty, etc. The over-assessment 

standing alone might not warrant reassessment of the penalty except to comply with the Mine 

Actcs maximum. However, here, it is a template for a host of other errors casting doubt on 

whether the penalty adjustment was a well-reasoned, properly-supported change from the 

proposed penalty or an arbitrary decision to punish the operator to the limit of the law and 

beyond. 

Second, MSHAcs penalty petition, which the Judge accepted, states mine and mine 

controller production of 275,220 tons (Exhibit A). Nonetheless, the Judgecs assessment refers 

only to speculative future production. In assessing the penalty, the Judge does not refer to the 

actual production but instead opines: \[b]y any measure Signal Peak is a large mine, presently 

employing about 240 people and with a goal of shipping a million tons of coal per year.] Id. at 

1382 (emphasis added). While the Judge does not state explicitly that he considered this goal in 

increasing the penalty, such consideration is the only reasonable reason for the discussion of the 

operatorcs future production plans in the penalty assessment portion of his opinion, especially as 

he does not there identify the actual, relevant production. Thus, with respect to the penalty criterion 

of size of the business of the operator, the Judge identifies not the actual size of the mine and mine 

controller o the penalty criterion o but instead long term plans for future years. The Mine Act does not 

permit assessments based upon a Judgecs speculation about an operator or controlling entitycs 

future size o an entirely speculative future in the mining industries. 

Third, in assessing the penalty, the Judge states: \[t]he Secretary seeks a minimum 

penalty of $51,400.00 for the two violations.] Id. (emphasis in original). Thus, he asserts 

MSHAcs proposed penalty was a \minimum] o even emphasizing the term \minimum.] This 

is the only place in the opinion where the Judge identifies MSHAcs penalty proposal. Even 

then he aggregates the penalties for two violations and describes the total proposed penalty as 

a minimum. Indeed, he repeatedly expressed a finding that MSHAcs proposed penalty was a 

minimum. Id. at 1384 n.60. 

The Secretary did not propose a modified assessment during the hearing. The proposed 

specially assessed penalty in this case was not a product of the point system but instead resulted 

from an individualized review by MSHAcs special assessment office o a higher than regular 

penalty assessment. It was a deliberately arrived at penalty proposal. It was neither minimum nor 

maximum. An assertion that the Secretarycs proposed penalty is a \minimum] does not \explain] 

a substantial increase in the proposed penalty. Of course, it is most unlikely the Secretary would 

ever state that his proposed penalty was a \maximum] but certainly the Commission would not 

37 FMSHRC Page 490
accept a substantial downward adjustment based upon a claim that the Secretarycs proposal was a 

\maximum.]6 

Fourth, the Judgecs penalty discussion does not even acknowledge that increases of 50% 

and 500% respectively constituted substantial variances from the proposed penalty requiring 

explanation. The Judge makes no effort to explain the reasons for his changes. He identifies the 

Commissioncs authority to assess penalties but fails to discuss the obligation to explain (meaning 

give good, substantial reasons) for substantially changing a penalty proposal by the Secretary.

The Judge does find negligence and gravity were \egregious.] However, just as he does 

not discuss the Secretarycs assessment or reason for his changes, he does not take into account 

that MSHA had already assessed maximum penalty points for negligence and gravity and then 

gone further and substantially increased the regular assessment proposal on the basis of a special 

assessment turning on egregious negligence and gravity. It is impossible to reconcile acceptance 

of such erroneous failure to explain his increase, especially when coupled with other clear errors, 

with the Commissioncs decision in Hidden Splendor, supra. 

Fifth, the Judge either did not understand or did not think it important to note that the 

proposed assessment was a special assessment in which the penalty proposal was already 

increased above the regular point system on the basis of heightened negligence and/or gravity. 

Without that understanding, the increase is a substantial increase on top of a substantial increase 

above the otherwise predictable penalty without an explanation by MSHA for its increase or by 

the Judge for his overlapping substantial increases. 

By not explaining the very substantial modifications as compared to the proposed 

penalties, the Judge creates the danger of the appearance of arbitrariness against which 

Sellersburg Stone Co. and its progeny are designed to protect. The Judge increased an already 

increased penalty to o in fact beyond o the maximum without substantial explanation. The 

6

 It is also noteworthy that the Judge created out of whole cloth a heretofore unknown 

interpretation of \reasonable potential to cause death] by defining this phrase to mean that the 

possibility of death is \not far-fetched.] 34 FMSHRC at 1368. In creating his far-fetched 

definition, the Judge summarily rejects: (1) the inspector equated \reasonable potential to cause 

death] with \life threatening,] Tr. 189; (2) the preamble to the Emergency Mine Evacuation 

regulation equates \reasonable potential to cause death] with \life threatening,] 71 Fed. Reg. 

71,430, 71,433-34 (Dec. 8, 2006); (3) numerous Commission Judges have used \life threatening] 

in construing \reasonable potential to cause death,] Vulcan Construction Materials, L.P., 35 

FMSHRC 2868, 2879 (Aug. 2013) (Judge Gill); Cemex, Inc. 35 FMSHRC 1355, 1365 (May 

2013) (Judge Miller); Walker Stone Co., 23 FMSHRC 180, 183 (Feb. 2001) (Judge Feldman); 

Consolidation Coal Co., 9 FMSHRC 1950 (Nov. 1987) (Judge Broderick); Climax Molybdenum 

Co., 2 FMSHRC 1967, 1970-1971 (July 1980) (Judge Morris); and (4) the Secretarycs reliance in 

his post-hearing brief upon the interpretation of the standard as meaning a \life threatening] 

condition. S. Post-Hearing Brief, p. 10. An interpretation as abstruse as \not far-fetched] sheds 

no light on the nature of an event having a \reasonable potential to cause death.] The Mine Act 

is a mature statute. There is no reason to invent new and even more ambiguous interpretations of 

its terms. 

37 FMSHRC Page 491
penalty assessment appears, therefore, to be a reflexive rather than reflective action apparently 

flowing from intent to inflict maximum financial pain. 

Conclusion

Penalties should reflect as objective as possible application of the penalty criteria. Based 

upon the decision in this case, I find no assurance of such a process. 

The Judge assessed a penalty above the statutory maximum; he erred in his application of 

the appropriate size of business factor; he erred by categorizing the specially assessed proposed 

penalty as a minimum; he gave no consideration to findings by MSHA and other Commission 

Judges that \reasonable potential to cause death] equates with \life threatening;] he did not 

recognize his assessments were substantial changes from the already specially assessed proposed 

penalties; he did not recognize he had a duty to explain the change, and did not do so. 

These errors constitute an abuse of discretion. As in Hidden Splendor, I would remand 

the penalties associated with the violations to the Judge for further explanation consistent with 

the requirements for explanation of substantial divergences and for proper application of the 

penalty criteria. 

/s/ William I. Althen

William I. Althen, Commissioner 

37 FMSHRC Page 492
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

March 31, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) Docket Nos. SE 2007-203-R 

 SE 2007-294 

 v. 

JIM WALTER RESOURCES, INC. 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY: Nakamura, Acting Chairman; Althen, Commissioner 

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) ([Mine Act\), and involve a citation issued to Jim Walter Resources, 

Inc. ([JWR\) by the Department of Labor^s Mine Safety and Health Administration ([MSHA\), 

after a fatal roof fall at JWR^s No. 7 coal mine. The citation alleges a violation of the safety 

standard in 30 C.F.R. § 75.202(a), which requires that the roof of areas where persons work or 

travel be supported to protect persons from roof falls.1

The Administrative Law Judge held that the Secretary failed to prove a violation of the 

cited standard and therefore dismissed the citation. Jim Walter Res., Inc., 34 FMSHRC 1386 

(June 2012) (ALJ). The Judge held that the Secretary failed to establish that, prior to the roof fall 

at issue, the roof conditions would have alerted a reasonably prudent person of the need for 

additional support. The Secretary filed a petition for discretionary review of the Judge^s decision, 

which we granted. 

We reverse the Judge with respect to his dismissal of the citation, and conclude that 30 

C.F.R. § 75.202(a) was violated.

1

 30 C.F.R. § 75.202(a) provides that [[t]he roof, face and ribs of areas where persons 

work or travel shall be supported or otherwise controlled to protect persons from hazards related 

to falls of the roof, face or ribs and coal or rock bursts.\ 

37 FMSHRC Page 493
I.

Factual and Procedural Background

On October 12, 2006, Jerry McKinney, a miner and special projects manager, was 

seeking to improve ventilation in the underground portion of JWR^s No. 7 coal mine near 

Tuscaloosa, Alabama. As part of this work, McKinney was examining the permanent stopping 

just north of survey station, or spad, 3575. McKinney observed a large roof fall just south of spad 

3575, which measured 62 feet long, 11 to 16 feet wide, and 1 to 4 feet thick. It is undisputed that 

the roof between the location of this roof fall, just south of spad 3575, and the permanent 

stopping, located just north of spad 3575, was supported by bolts, straps, timbers and t-boards. 

While McKinney was performing this examination, he was fatally injured by the fall of a 

piece of roof rock 83 inches long, 43 inches wide and 7 inches thick. There were no eyewitnesses 

to the fatal accident. The Secretary contends that McKinney was standing under the unsupported 

brow of the prior roof fall at the time of the accident, while the operator contends that McKinney 

was standing 6 to 10 feet north of the prior roof fall at the time of the accident. 

A few hours after McKinney^s body was found, MSHA Inspector Harry Wilcox 

inspected the accident site. On February 15, 2007, MSHA issued Citation No. 7689677, alleging 

a violation of 30 C.F.R. § 75.202(a) because [[t]he mine operator failed to support or otherwise 

control the mine roof to protect persons from hazards related to falls.\ Gov^t Ex. 15. The citation 

also alleged that the violation was [significant and substantial,\ and was a result of moderate 

negligence by the operator. The proposed penalty for the citation was $35,500. 

 

The Judge dismissed the citation because he concluded that the Secretary had failed to 

prove a violation of section 75.202(a) under the [reasonably prudent person test\2 previously 

adopted by the Commission in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987), and Harlan 

Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998).3 The Judge held that the Secretary had 

failed to prove that there were objective indicia prior to the roof fall that would have alerted a 

reasonably prudent person that additional roof support was necessary. 34 FMSHRC at 1392-95. 

On appeal, the Secretary asserts that the Judge erred by applying the reasonably prudent 

person test. The Secretary argues that operators are strictly liable for Mine Act violations and 

that, as a result, if a roof falls, the roof was not supported or otherwise controlled to protect 

persons from hazards related to roof falls. Thus, the Secretary essentially claims that under the 

 2

 The Judge stated that the Secretary had [the burden of establishing the existence of 

iobjective signs [that] existed prior to the roof fall^. . . and that these objective signs would have 

alerted a reasonably prudent person to install additional roof support beyond that which had been 

actually provided at the time.\ 34 FMSHRC at 1393. 

3

 The standard at issue in Canon was the former version of 30 C.F.R. § 75.200, the 

predecessor to section 75.202(a). 9 FMSHRC at 668. 

37 FMSHRC Page 494
plain meaning of section 75.202(a), a roof fall demonstrates a per se violation of the standard.4

Alternatively, the Secretary argues that if the standard is found to be ambiguous, his 

interpretation of the standard as requiring a finding of a per se violation when a roof fall occurs is 

reasonable and entitled to deference. 

JWR contends that the Judge correctly applied the reasonably prudent person test for roof 

fall violations of section 75.202(a). JWR claims that under the plain meaning of the standard, an 

operator is liable for a roof fall only if, prior to the roof fall, a reasonably prudent person would 

have recognized that additional roof support was necessary. Alternatively, JWR argues that even 

if the Commission finds the standard to be ambiguous, the Secretary^s interpretation is 

unreasonable and thus not entitled to deference. 

II.

Disposition

The operator urges us to apply the reasonably prudent person test to the requirements of 

section 75.202(a). On the other hand, the Secretary asks us to interpret the standard to mean that, 

in all cases, if a roof falls, the roof was not supported or otherwise controlled to protect persons 

from hazards related to falls of the roof, in violation of section 75.202(a). Under the stark and 

tragic facts of this case, however, we need not decide whether to adopt one or the other of these 

tests in all roof fall cases involving allegations of unsupported roof. Such tests [are not presented 

by the [facts] now before us.\ See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 

557 U.S. 261, 275 (2009). 

The language of the standard states that [[t]he roof, face and ribs of areas where persons 

work or travel shall be supported or otherwise controlled to protect persons from hazards related 

to falls of the roof, face or ribs and coal or rock bursts.\ 30 C.F.R. § 75.202(a). Thus, under the 

plain language of the standard5 and the strict liability approach governing Mine Act violations, 

the Secretary, to prevail here, need only show (1) that the roof fall occurred in an area where 

persons work or travel and (2) that the roof was not supported to protect persons from hazards 

related to falls. 

With regard to the first question, the Judge concluded that the accident site was not an 

area where persons [work or travel.\ 34 FMSHRC at 1394 n.10. We disagree. 

The Commission has interpreted the phrase [work or travel\ as used in section 75.202(a) 

to be circumstance specific. Cyprus Empire Corp., 12 FMSHRC 911, 917-18 (May 1990). In 

 4

 In the absence of a roof fall, the Secretary would retain the reasonably prudent person 

test to determine whether the cited standard had been violated. 

5

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

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

meaning or unless such a meaning would lead to absurd results. See Dyer v. U.S., 832 F.2d 1062, 

1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); 

Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). 

37 FMSHRC Page 495
Cyprus, the Commission held that whether miners normally [work or travel\ in a particular area 

is irrelevant if the specific circumstances at issue do not reflect normal circumstances. Id. In the 

instant case, the Judge stated that the accident site was not an area where persons [work or 

travel\ due to the rocks on the floor of the green path.6

 34 FMSHRC at 1394 n.10. However, the 

Judge ignored the fact that at the time of the fatal accident, McKinney was at the accident site, 

performing a work-related function j seeking to improve ventilation in the mine. Therefore, the 

specific circumstances demonstrate that the accident site was an area where a miner worked and 

traveled. 

 This leaves the issue of whether the operator failed to support the roof [to protect persons 

from hazards related to falls.\ When Inspector Wilcox arrived on the scene, Jerry McKinney was 

lying fatally injured beneath a large roof fall. Accordingly, the only conclusion to be reached is 

that the roof was not supported to protect the miner from a roof fall. As previously mentioned, 

the Mine Act is a strict liability statute, and this fatality resulting from a fall of roof material 

where persons work or travel unquestionably demonstrates a violation of section 75.202(a). The 

roof fall that pinned McKinney under a piece of rock, resulting in his death, amply demonstrates 

that the roof was not supported in a manner to protect him from hazards related to falls. 

In light of the record in this case, we need not go further and choose between the 

reasonably prudent person test and the approach suggested by the Secretary. It is unnecessary 

under the facts here to choose between application of the reasonably prudent person test and the 

adoption of a different test applicable across the board to the host of conditions that might arise, 

especially in the absence of a record bearing upon a broader range of circumstances. It is 

sufficient here to find that the roof in this case, located in an area where persons work or travel, 

was not supported. Accordingly, we hold that the operator violated the standard.7

 

 6

 In his decision, the Judge stated that [[t]he various possible paths to the areas at issue 

from the main track entry, via various crosscuts are indicated by different colored lines in the 

Report of Investigation (Government Exhibit 10, p. 12 [Appendix B]) ([Gx\) and referred to in 

the text as green, red, or blue route, path or pathway, respectively.\ 34 FMSHRC 1391 n.3. The 

accident site was part of the rarely travelled green path, while the red path was used as the 

primary travelway. 

7

 We recognize that the decision in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987), was 

reached in a factual context similar to that in the present case. However, in light of the 

determination set forth immediately above, we decline to follow the Canon decision. 

37 FMSHRC Page 496
III.

Conclusion

We reverse the Judge^s finding that no violation occurred, and remand the case to the 

Chief Administrative Law Judge8 for further proceedings, including whether the violation was 

[significant and substantial,\ and what penalty assessment is appropriate. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ William I. Althen

William I. Althen, Commissioner 

 8

 The Judge who originally decided this case has since retired. 

37 FMSHRC Page 497
Commissioner Cohen, concurring: 

I agree with the result reached by my colleagues, as well as their reasoning. I write 

separately in order to address footnote 7 of their opinion. Essentially, I conclude that the 

disposition in this proceeding effectively overrules the Commission^s decision in Canon Coal 

Co., 9 FMSHRC 667 (Apr. 1987). 

In Canon Coal, the Commission reviewed a Judge^s decision to vacate an order alleging 

a violation of the safety standard in 30 C.F.R. § 75.200 (the predecessor to 30 C.F.R. § 

75.202(a)) that was issued by the Secretary to the operator after a fatal roof fall accident. In order 

to prove a violation in this instance, the Judge had required the Secretary to demonstrate, in 

essence, [that objective signs existed prior to the roof fall that would have alerted a reasonably 

prudent person to install additional roof support beyond the support that actually had been 

provided by the operator.\ Id. at 668. The Commission affirmed the Judge^s decision to vacate 

the order. 

 

 The analysis in Canon Coal does not reflect an appropriate interpretation of the requirements 

of the safety standard considering the standard^s specific directive to protect miners and the strict 

liability nature of the Mine Act. A roof that falls and kills a miner was obviously not supported 

[to protect persons from hazards related to falls of the roof\ as required by the safety standard. 

30 C.F.R. § 75.202(a); see also 30 C.F.R. § 75.200 (1987). Because the Commission^s holding in 

Canon Coal conflicts with both the language of the safety standard and the Mine Act, I have to 

conclude that it was wrongly decided. 

 The overruling of Canon Coal does not necessarily affect subsequent Commission 

decisions which cited it, one of which, Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 

1998), was also relied on by the Judge in the present case. In Harlan Cumberland, the 

Commission, citing Canon Coal, applied the reasonably prudent person standard to a violation of 

30 C.F.R. § 75.202(a) in a situation where a roof fall had not actually occurred. The 

Commission^s decision today does not disturb Harlan Cumberland.

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner 

37 FMSHRC Page 498
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

March 31, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

 v. Docket Nos. WEST 2010-652-RM 

 WEST 2010-1584-M 

NEWMONT USA LIMITED 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

 

BY: Nakamura, Acting Chairman; and Althen, Commissioner 

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) ("Mine Act"). At issue is a single order issued by the Department of 

Labor's Mine Safety and Health Administration ("MSHA") pursuant to section 104(d)(2) of the 

Mine Act, 30 U.S.C. § 814(d)(2),1 to Newmont USA Limited ("Newmont") at its Midas Mine, a 

gold mine in Nevada. The order alleges a violation of 30 C.F.R. § 57.8528, which provides: 

"Unventilated areas shall be sealed, or barricaded and posted against entry." 

On January 5, 2012, the Judge issued his decision in this case. 34 FMSHRC 146 (Jan. 

2011) (ALJ). The Judge concluded that a violation occurred and that the violation was significant 

 1

 Section 104(d)(2) provides: 

If a withdrawal order with respect to any area in a coal or other 

mine has been issued pursuant to paragraph (1), a withdrawal order 

shall promptly be issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that resulted in the 

issuance of the withdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable 

to that mine. 

30 U.S.C. § 814(d)(2). 

 

37 FMSHRC Page 499
and substantial ("S&S").2

 He further concluded that the violation was not attributable to an 

unwarrantable failure to comply with the standard3 and reduced the civil penalty from $35,500 to 

$5,000. 

 

The Secretary and the operator filed cross-petitions for discretionary review of the 

Judge's decision, which the Commission granted. For the reasons that follow, we affirm the 

Judge's finding of violation, vacate and reverse his S&S finding, and vacate and remand his nonunwarrantable failure finding. We also remand his penalty assessment. 

I.

Factual and Procedural Background

A. Factual Background

On January 26, 2010, MSHA inspector Shon Guardipee began his regular inspection of 

the Midas Mine at the top of a spiral4

 with Newmont employee Ivan Castellanos and Jamie 

Wallake, the Miner Representative. As Guardipee approached the 5301 heading, which was the 

access off of the main haulage, he observed that the sill or auxiliary fan at the 5301 level was off 

and that the ventilation bags in the headings were tied off. There were signs hanging by a rope 

across the headings stating: "Danger, Heading Inspection Required." When Guardipee 

questioned the operator's and miners' representatives accompanying him, they informed 

Guardipee that the headings had been inactive for a week and a half. Guardipee subsequently 

issued the Order, and designated the violation as S&S and attributable to an unwarrantable 

failure to comply. 

 2

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that "could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard." 30 U.S.C. § 814(d)(1). 

3

 The unwarrantable failure terminology is also taken from section 104(d)(1) of the Act, 

which establishes more severe sanctions for any violation that is caused by "an unwarrantable 

failure of [an] operator to comply with . . . mandatory health or safety standards." 30 U.S.C. 

§ 814(d)(1). 

4

 The mine's headings are located off of vertical spirals connecting to main haulage roads. 

Tr. 23, 215; see also Sec'y Ex. B (cross-sectional map looking west at the Midas Mine and 

depicting the main haulage roads and spiral system as well as the ventilation). Newmont uses 

both a primary and secondary ventilation system. The primary ventilation is comprised of main 

fans and booster fans, as well as two intakes and four exhaust ducts, which are used to provide 

general airflow for the main haulage roads and spirals within the mine. Newmont's secondary 

ventilation system provides additional airflow for the specific spirals and their headings. This is 

done through sill fans, or auxiliary fans, which pull air from the main haulage roads into internal 

raises developed alongside each spiral. Subsequently, the spiral is fed air from the internal raise, 

and ventilation bags then direct the air toward the working faces in each spiral's heading. See

Sec'y Ex. QQ. Each heading within a spiral is located 50 feet above or below the other heading. 

The air pulled upward into Spiral 1 ''Ts off" into the 1-5301 North and South Headings. 

37 FMSHRC Page 500
On January 5, 2012, the Judge affirmed the violation and the S&S designation. He 

vacated the unwarrantable failure designation and assessed a civil penalty of $5,000 rather than 

the $35,500 proposed by MSHA. 

B. The Judge's Decision

 

1. Whether a Violation Occurred

The Judge concluded the operator violated section 57.8528 by failing to barricade the 

headings and failing to adequately post signs against entry. He found that the headings were 

"unventilated" under the language of the standard, because the operator had shut down the 

auxiliary fan and tied off the ventilation bags in the headings. Id. at 161. 

The Judge found that the plain language of 30 C.F.R. § 57.2 unambiguously defines 

"barricade" to require the "prevent[ion] [of] vehicles, persons or flying materials" from entering 

unventilated areas, such as the headings in question. Id. According to the Judge, this requirement 

was not met because the operator had merely strung a rope barrier from rib-to-rib at the entrance 

to each heading and the signage merely stated: "Danger, Heading Inspection Required." The 

signage did not state that entry into the headings was prohibited or that the headings were 

unventilated. Id. 

 

2. Whether the Violation Was S&S 

The Judge also concluded that the violation was S&S. Id. at 161-62. He found that the 

hazards of low oxygen and a build-up of toxic gases were reasonably likely to occur and that the 

rope across the entry to a heading with a warning sign that inspection was needed was an 

insufficient barricade and signage to comply with the standard. 

Although the Judge acknowledged that new miners at the Midas Mine are required to 

take a four-week training class that included inspection procedures for entering headings, Tr. 

228, he further found that subcontractors do not have to take this training. Thus, he concluded 

that subcontractors might unwittingly enter an unventilated heading notwithstanding the rope and 

signage that an inspection was required. 

The Judge also considered the testimony of Kevin Hirsch, Assistant District Manager for 

the Western District of MSHA, that mines need to be ventilated to ensure that oxygen remains at 

the appropriate levels above 19.5 %. The Judge subsequently reasoned that, without proper 

ventilation, oxygen levels may not be continually adequate. 34 FMSHRC at 151, 162; Tr. 119. 

Consequently, he concluded that low oxygen was reasonably likely to occur, assuming 

continuation of normal mining operations. 

The Judge further found that a build-up of toxic gases was reasonably likely to occur. 34 

FMSHRC at 161-62. Although the Judge recognized that the mine was non-gassy and that this 

may be a mitigating factor for S&S purposes, he concluded that the operation of the diesel and 

other equipment in the mine made it reasonably likely that the build-up of toxic gases would 

occur. Accordingly, the Judge found that the barricade procedures did not reduce the reasonable 

37 FMSHRC Page 501
likelihood of miners suffering exposure to toxic gases or a lack of oxygen. As a result, the Judge 

found that the violation was S&S. 

3. Whether the Violation Resulted from an Unwarrantable Failure to Comply 

 

 The Judge concluded that the violation did not result from an unwarrantable failure to 

comply with the standard. He referred to a meeting in June 2009 between MSHA and mine 

operators, including members of Newmont management, at which the parties discussed the 

requirements of section 57.8528. He found, however, that they only discussed what MSHA 

would accept as a "barricade," as opposed to the meaning of "unventilated," which would 

determine when a "barricade" must be used in the first place. 34 FMSHRC at 151, 164; Tr. 40-

44. While noting that Newmont was cited six times under the standard after the 2009 meeting, 

based upon the testimony of Newmont witnesses, the Judge held that the operator possessed a 

good faith belief that its policy of roping off headings due to be worked on in the near future 

complied with the standard. 

The Judge further found that, in response to the six citations, Newmont updated its 

barricading procedures. Under the revised procedure, Newmont continued the practice of 

stringing a rope with a sign cautioning "Danger, Heading Inspection Required" across headings 

that were presently in production or development, or scheduled for production or development 

within four weeks. The Judge found that Newmont considered such headings to be active 

headings. Based upon his finding that Newmont had a good faith belief that its procedures 

complied with MSHA's requirements, the Judge held that the operator's violation of section 

57.8528 did not result from an unwarrantable failure to comply with the standard. 

 

4. The Penalty 

 

The Judge assessed a civil penalty of $5,000 rather than the $35,500 penalty proposed by 

the Secretary. In doing so, he relied in part on the settled penalty amounts for the prior citations 

to conclude that the proposed penalty in the instant case was "excessive." Id. at 165. 

II. 

Disposition

 

A. The Judge Properly Concluded that a Violation Occurred.

1. The Secretary's definition of "unventilated" is reasonable and entitled to 

deference. 

 

30 C.F.R. § 57.8528 provides: "Unventilated areas shall be sealed, or barricaded and 

posted against entry." The Secretary asserted that the face of the heading was "unventilated" 

because air did not sweep the face in a manner that would provide oxygen and clear 

contaminants. The term "unventilated" is not defined in the standard. Thus, the standard is silent 

with respect to whether a face is "unventilated" if airflow is insufficient to sweep the face. 

 

37 FMSHRC Page 502
When a standard does not provide a definition for a term, the Commission looks to the 

term's ordinary meaning. See, e.g., Jim Walter Res. Inc., 28 FMSHRC 983, 987 (Dec. 2006). 

"Unventilated" is the opposite of "ventilated," and "ventilate" has been defined as "to expose to 

air and esp[ecially] to a current of fresh air (as for purifying, curing, or refreshing)." Webster's 

Third New Int'l Dictionary Unabridged 2541 (1986). This indicates that airflow must be 

sufficient to "purify" or "refresh" the area that is being ventilated. This definition supports the 

Judge's interpretation that air must sweep the face in order for the area to be ventilated. Although 

we do not find the dictionary definition to lead inexorably to a plain meaning for "unventilated," 

we arrive at the same outcome as the Judge, for we must defer to the Secretary's interpretation. 

If a term is ambiguous, the Commission defers to the Secretary's interpretations of his 

own regulations as long as they are reasonable. Tilden Mining Co., 36 FMSHRC 1965, 1967 

(Aug. 2014) (Secretary's interpretation is reasonable and entitled to deference); Wolf Run Mining 

Co., 32 FMSHRC 1669, 1678-82 (Dec. 2010). In Auer v. Robbins, the Supreme Court found that 

an agency's interpretation of its own regulation is entitled to deference unless it is plainly 

erroneous or inconsistent with the regulation. 519 U.S. 452, 461 (1997). Here, the Secretary's 

interpretation clearly is reasonable and is neither erroneous nor plainly inconsistent with the 

language and the purpose of the standard. 

In the context of underground mining, a heading is not "refreshed" unless the airflow is 

sufficient to sweep its face, regardless of any primary ventilation or natural airflow. MSHA has 

noted that "auxiliary ventilation is often necessary to supply air to dead-end working places, 

maintain uncontaminated environments, and to condition air in faces for temperature and 

humidity control." New and Revised Safety and Health Standards for Radiation (Radon Daughter 

Exposure); Fire Protection and Control; Ventilation, Loading, Hauling and Dumping; 

Travelways and Escapeways; Hoisting; and Sanitary Facilities, 44 Fed. Reg. 31908, 31912 (June 

1, 1979) (adopting section 57.8534, which describes procedures for the shutdown or failure of 

auxiliary fans). Further, the Secretary's interpretation is consistent with the standard's purpose, 

which is to protect miners from the dangers posed by headings with inadequate oxygen and 

accumulations of noxious gases. Thus, the term "unventilated" includes airflow that is 

insufficient to sweep a heading's face, and we hold that the term "unventilated" in section 

57.8528 includes the failure to provide sufficient airflow to sweep the face.5

 5

 Newmont argues that the Secretary's interpretation would reduce the flexibility of 

operators to direct air where it is neededlthat is, to areas where miners are working and where 

equipment is emitting potentially noxious gases. It contends that, under the Secretary's 

interpretation, the failure to barricade a heading when turning off a fan for short periods of time, 

e.g., two minutes or so, to have a conversation, talk on a radio, or repair a ventilation bag, would 

violate the standard. Such a brief stoppage is not the case before us, and the Secretary has not 

asserted the position put forward by the operator. But see Tr. 123-24. We decline to act on the 

basis of conjecture of events that are not before us. Moreover, policy decisions to promulgate 

regulations effectuating the safety purposes of the Mine Act are the province of the Secretary. 

The Commission adjudicates whether a regulation is reasonable and not plainly inconsistent with 

the Act. See Sec'y of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003). 

37 FMSHRC Page 503
2. Substantial evidence supports the Judge's finding that the airflow in the 1-

5301 headings was insufficient to sweep the face when Newmont turned off 

the auxiliary fan and tied off the ventilation bags. 

 

 Newmont's witnesses did not dispute Guardipee's conclusion that the airflow in the 

headings was insufficient to sweep the face. Tr. 271. On the contrary, Sid Tolbert, the Mine 

Supervisor at the Midas Mine, admitted on cross-examination that the natural flow in the mine 

was insufficient to sweep the face. He acknowledged that air would sweep the face only when 

the auxiliary fan was running and the ventilation bags were operational. 34 FMSHRC at 162; Tr. 

271. As a result, we find that substantial evidence supports the Judge's finding that the airflow in 

the 1-5301 headings was insufficient to sweep the face when the operator turned off the auxiliary 

fan and tied off the ventilation bags. Accordingly, we affirm the Judge's finding of a violation. 

B. The Judge Erred in Concluding that the Violation was S&S.

 

A violation is S&S if, based on the particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 

1981). In Mathies Coal Co., the Commission further explained: 

 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

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

standard; (2) a discrete safety hazard n that is, a measure of danger 

to safety n contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

There is not substantial evidence to support a finding that the violation contributed to a 

discrete hazard reasonably likely to result in an injury. Guardipee's air readings in the North 

Heading showed no evidence of any build-up of contaminants. Tr. 64; Sec'y Ex. A, at 6. 

Furthermore, Guardipee failed to take any readings in the South Heading, and he went no further 

into the South Heading than immediately after the point where the ventilation bags were choked 

off, which was only about 13 feet into the heading. Tr. 322. Significantly, the mine is non-gassy. 

Furthermore, the operator presented undisputed testimony that whenever the equipment 

would be running in the headings, the operator, as a precautionary measure, would block off the 

opposite, unventilated heading to prevent access by miners. Tr. 294. In addition, any air that 

could become contaminated from drilling and blasting in the headings would not recirculate 

through the mine, but rather vent upwards through the portal exhaust. Tr. 226. The Secretary did 

not offer any evidence to the contrary. These factors do not support a finding of a build-up of 

toxic gases in the headings creating a reasonable likelihood of injury to a miner. 

37 FMSHRC Page 504
Concerning the likelihood of any oxygen deficiency, Guardipee's air readings in the 

North Heading showed no evidence of any loss of oxygen, and, as stated above, he failed to take 

any readings in the South Heading. Further, the operator's witnesses testified that the rock strata 

of the mine would not allow for any loss of oxygen to occur, a point which the Secretary did not 

dispute. Tr. 256, 291. The record evidence of the geology of the mine thus mitigates the 

likelihood of any oxygen deficiency. We note that the Secretary failed to introduce evidence of 

the likelihood of a hazard from oxygen-deficient air. In sum, substantial evidence does not 

support the reasonable likelihood of the build-up of toxic gases or lack of sufficient oxygen that 

would be reasonably likely to result in injury to miners.6

 Accordingly, we reverse and vacate the 

Judge's S&S finding. 

C. The Judge Erred in Vacating the Secretary's Unwarrantable Failure 

Designation.

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," 

or a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991); see also Buck Creek, 52 F.3d 133, 136 (7th Cir. 1995) 

(approving unwarrantable failure test). 

Whether the conduct is "aggravated" in the context of unwarrantable failure is determined 

by looking at all the facts and circumstances of each case, including (1) the extent of the 

violative condition, (2) the length of time that it has existed, (3) whether the violation posed a 

high risk of danger, (4) whether the violation was obvious, (5) the operator's knowledge of the 

existence of the violation, (6) the operator's efforts in abating the violative condition, and (7) 

whether the operator has been placed on notice that greater efforts are necessary for compliance. 

See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), 

rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999). All of the relevant facts and circumstances 

of each case must be examined to determine if an operator's conduct is aggravated or whether 

mitigating circumstances exist. Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 

 The Judge erred by failing to determine whether the operator's belief that it was in 

compliance was objectively reasonable. The Judge found that "Hirsch gave 'operators specific 

guidance about what the Western District would accept as a barricade,'" but no guidance 

regarding when a barricade must be used. 34 FMSHRC at 164. The Judge therefore concluded 

that the operator possessed a good faith belief that its policy of roping off headings that were to 

 6

 The Secretary argues that Kevin Hirsch, the MSHA Assistant District Manager, stated 

that headings need to be ventilated to ensure that oxygen remains at the appropriate levels above 

19.5 %, and to prevent oxygen levels from changing unexpectedly in the future. Tr. 27. This 

statement, however, is contradicted by Tolbert's testimony that even with the auxiliary fans off, 

there would still be sufficient air circulation in the mine. Tr. 227, 236, 241. For example, 

Newmont checked the air circulation in August 2011 during a power outage. The mine did not 

have any problems with air quality or quantity at that time. Tr. 242. 

37 FMSHRC Page 505
be worked in the near future in non-working areas complied with the standard. His analysis, 

however, overlooks the fact that, as a matter of law, an operator's belief that it is in compliance 

constitutes a defense to an unwarrantable designation only if the belief was objectively 

reasonable. See IO Coal, 31 FMSHRC at 1356-60. The Judge erred by failing to make a finding 

as to whether the belief was "objectively" reasonable and explaining the reasons for such a 

finding. 

 

 We remand the case to the Judge to make factual findings on the elements of an 

unwarrantable failure and whether the operator had an objectively reasonable belief that the rope 

and sign utilized by the operator complied with the regulation. 

 

D. The Judge's Penalty Assessment Must be Remanded.

The Judge assessed a civil penalty of $5,000 rather than the $35,500 penalty proposed by 

the Secretary. The penalty assessment must be remanded. 

In reviewing the Judge's assessment, it appears that he improperly relied in part on 

penalty amounts from similar citations that had previously been settled in finding that the 

proposed amount was "excessive." 34 FMSHRC at 164-65; see also Tr. 312-13. This constitutes 

an abuse of discretion, as the amount of penalties assessed in the context of a settlement should 

not be used to arrive at penalties assessed in a very different contextlin a decision on the merits 

after a hearing.7 There is no way a Judge can know the facts in settled cases sufficiently to 

consider the penalty in such cases in determining a penalty in a litigated case. Further, the Judge 

cannot know other factors that may have played a role in reaching settlement. Use of settlements 

as templates for penalty assessments, therefore, would violate the obligation of the Judge to 

make an independent judgment and would be made based on insufficient knowledge of facts, 

including the motivations for settlement. In short, the results of settlements should not be 

considered in the assessment of penalties. 

Accordingly, in light of the foregoing, we remand the case to the Judge to re-assess the 

penalty. In so doing, he should also consider: (1) our deletion of the S&S designation; and (2) his 

unwarrantable failure finding made on remand.8

 7

 As in Sequoia Energy, LLC, 36 FMSHRC 832, 835 n.5 (Apr. 2014), we need not reach 

the broader question of whether the Judge acted improperly by considering past penalty amounts 

assessed against the operator. We find error based on the narrower issue of the use of past 

settlements as a point of comparison. 

8

 Furthermore, as with all penalty cases, if the Judge's assessment of the penalties 

"substantially diverge[s]" from those originally proposed, the Judge must "provide a sufficient 

explanation of the bases underlying the penalties assessed by the Commission." Sellersburg 

Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).

37 FMSHRC Page 506
III.

Conclusion

For the reasons stated above, we affirm the Judge's finding of a violation, but reverse and 

vacate the Judge's S&S finding. We also reverse and remand the case to the Judge to make 

additional factual findings regarding whether the violation resulted from an unwarrantable 

failure. Finally, we remand the case so that the Judge may re-assess the penalty in accordance 

with this decision. 

 /s/ Patrick K. Nakamura

 Patrick K. Nakamura, Acting Chairman 

 

 /s/ William I. Althen

 William I. Althen, Commissioner 

 

37 FMSHRC Page 507
Commissioner Cohen concurring in part and dissenting in part: 

I dissent because I conclude that the Judge's decision to affirm the order as a significant 

and substantial (S&S) violation is supported by substantial evidence in the record. I concur with 

my colleagues as to the need to vacate and remand the Judge's unwarrantable failure findings, but 

write separately on that issue because I conclude that Newmont's alleged "good faith" belief that 

it was in compliance cannot be found to be objectively reasonable. I join with the majority on all 

other issues. 

A. Significant and Substantial 

 The Judge determined that the Secretary sustained his burden of proof regarding each of 

the four elements of the test outlined in Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). 34 

FMSHRC 146, 161-62 (Jan. 2012) (ALJ). My colleagues reverse the Judge, finding that his 

decision is not supported by substantial evidence in the record. They conclude that the evidence 

does not "support a finding that the violation contributed to a discrete hazard reasonably likely to 

result in an injury." Slip op. at 6. 

 

 In reviewing a Judge's decision to affirm or reject a S&S designation, the Commission 

traditionally examines his findings regarding each of the four Mathies elements to see if they are 

supported by substantial evidence. See, e.g., Black Beauty Coal Co., 34 FMSHRC 1733, 1741-

44, 1748-49 (Aug. 2012). I conclude that the Judge's findings here regarding each of the four 

elements of the Mathies test are supported by substantial evidence. "Substantial evidence" only 

requires "such relevant evidence as a reasonable mind might accept as adequate to support [the 

Judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) 

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

1. The underlying violation of a mandatory standard 

I join my colleagues in finding a violation of the standard. Slip op. at 6. 

2. A discrete safety hazard W that is a measure of danger to safety W contributed 

to by the violation 

The Judge found that the violation contributed to the danger that a miner will "access the 

area and be overcome by noxious air or a lack of oxygen." 34 FMSHRC at 161. I conclude that 

while the Judge articulated the relevant hazard, his description of the hazard was over-inclusive. 

See Black Beauty, 34 FMSHRC at 1741. It is sufficient to describe the relevant hazard as a 

danger that a miner will access the area and be exposed to noxious air or a lack of oxygen. 

The Judge's conclusion that the Secretary sustained his burden of proof with respect to 

the second element is supported by substantial evidence in the record. The rope that hung across 

the 1-5301 headings was insufficient to prevent either the intentional or unintentional access of 

the area by a miner. 34 FMSHRC at 161-62; see also Dep. Tr. 46, 51, 52; Sec'y Ex. A, at 6. The 

Judge correctly concluded that the rope would not prevent a miner from traveling under or 

stepping over it. 

37 FMSHRC Page 508
While Newmont may provide rigorous training to its own employees regarding the 

inspection of headings, the Judge noted that Newmont's subcontractors do not receive the same 

benefit. As a result, the Judge found that the signs hanging from the rope which stated, "Danger, 

Heading Inspection Required" were not a sufficient warning. The sign failed to state that the area 

was unventilated or inactive, and as a result contributed to the danger that a miner may access the 

area. 34 FMSHRC at 162-63. 

 The hazard in this case includes a miner being exposed to noxious air or lack of oxygen. I 

disagree with my colleagues' conclusion that there is no substantial evidence in the record which 

supports the existence of this hazard. While the limited readings the inspector took in the 

headings neither indicated a lack of oxygen nor the build-up of gases at the exact time the 

inspection took place, this is not dispositive. As the Judge noted, conditions in a mine can change 

unexpectedly. 34 FMSHRC at 162. This is particularly true in this instance as the headings at 

issue were in a development area of the mine. See Tr. 213, 216. During this process, which can 

range from several weeks to years, the area is not mined continuously; instead, miners regularly 

visit the headings to take samples. Tr. 235, 285, 288-89. Depending on the information obtained 

from the samples, mining activities may proceed in these areas. Tr. 235. Significantly, the 

development process also includes drilling, blasting, and the use of diesel equipment which 

produces carbon dioxide and nitrogen dioxide. Tr. 255. Drilling and blasting work had occurred 

in the 1-5301 North heading during the month prior to the inspection. Tr. 264-65. As the Judge 

noted, the gases emitted by diesel and other equipment "can build up over time in unventilated 

areas." 34 FMSHRC at 162. 

 The actions of the inspection party are themselves indicative of the potential that noxious 

gases and/or lack of oxygen existed in the unventilated 1-5301 headings. MSHA Inspector Shon 

Guardipee proceeded about 13 feet into the South Heading when he saw that the ventilation bag 

was tied off. He turned around and realized that Mine Foreman Ivan Castellanos and the other 

members of the inspection party had not crossed the rope and followed Guardipee into the 

heading. Tr. 322. Castellanos testified that he did not enter the heading, and had "held my people 

back," because "there was a hazard present." Id. He explained that it was against company policy 

to enter a heading which was unventilated. Tr. 327. 

3. A reasonable likelihood that the hazard contributed to will result in an 

injury 

The issue for the third element of the Mathies test is whether the hazard contributed to by 

the violation was reasonably likely to result in injury. Musser Eng'g, Inc., 32 FMSHRC 1257, 

1281 (Oct. 2010). The Judge found that it was reasonably likely that a miner accessing the 

unventilated areas would be overcome by noxious air or a lack of oxygen. 34 FMSHRC at 161. I 

conclude that the Judge's decision is supported by substantial evidence. 

 

I decline to join my colleagues in reweighing the testimony to account for the operator's 

precautionary measures that are taken during development work in the mine, or to make factual 

findings as to how air in the mine would potentially circulate. See Slip op. at 6. As stated above, 

the hazard of exposure to noxious air or inadequate oxygen has already been established under 

step 2 of the Mathies test. 

37 FMSHRC Page 509
I disagree that the Secretary "failed to introduce evidence of the likelihood of a hazard 

from oxygen-deficient air." Slip Op. at 7.9 The Secretary's evidence included the identification of 

a similar situation at the nearby Barrick Meikle Mine, not long before the violation in this case, 

where one miner entered an unventilated area and lost consciousness, a second miner attempted 

to save him and either lost consciousness or became disoriented, and it took a third miner turning 

on ventilation fans to get the other two to safety. 34 FMSHRC at 150. It was this incident which 

triggered the inclusion of a presentation on the barricading required by 30 C.F.R. § 75.8528 at 

MSHSA's meeting with mine operators in Elko, NV in June 2009. Tr. 40-41, 76; 34 FMSHRC at 

151. 

4. A reasonable likelihood that the injury in question will be of a reasonably 

serious nature 

The Judge concluded that it was reasonably likely that an injury that would occur would 

be of a reasonably serious nature. 34 FMSHRC at 161. The inspector concluded the injury would 

be expected to be fatal. Sec'y Ex. F. The Judge noted that Inspector Guardipee provided specific 

examples of miners losing consciousness from noxious air in similar situations. 34 FMSHRC at 

150. Newmont does not dispute that losing consciousness due to exposure to noxious air is a 

reasonably serious injury. 

In conclusion, I would affirm the Judge's factual findings and conclusions regarding each 

of the Mathies elements as they are supported by substantial evidence in the record. 

B. Unwarrantable Failure

 I agree with my colleagues that the Judge erred in vacating the Secretary's unwarrantable 

failure designation and that the case must be remanded for reconsideration of that issue. The 

Judge vacated the unwarrantable failure designation because he found that Newmont was not on 

notice of the Secretary's interpretation of the regulations. 34 FMSHRC at 164. Thus, the Judge 

determined that Newmont "possessed a good faith belief that its policy of roping off headings 

that were to be worked in the near future complied with the regulations." Id. 

 My colleagues rightly conclude that the Judge erred by failing to make a finding on 

whether Newmont's belief was objectively reasonable. However, I would go further and find, 

under the facts in this case, that any belief which Newmont had that its procedures complied with 

the regulations was not objectively reasonable. 

 9

 It really should not be necessary for the Secretary to introduce case-specific evidence 

that noxious gases or inadequate oxygen can result in injury to miners. The history of mining is 

replete with such examples, including the 2010 disasters at the Sago and Aracoma Mines. As the 

Commission has noted, "[t]he dangers of low oxygen are well-known and obvious," and so 

"[o]xygen levels less than the required level constitute substantial evidence of a reasonable 

likelihood of an injury-producing event occurring." Kellys Creek Res. Inc., 19 FMSHRC 457, 

462 (Mar. 1997). 

37 FMSHRC Page 510
 The Judge's determination that Newmont was not on notice is based on his finding that at 

the June 2009 meeting in Elko, NV, MSHA Assistant District Manager Kevin Hirsch gave 

specific guidance as to what its Western District would accept as a barricade, but did not set forth 

policy as to when a barricade must be used under 30 C.F.R. § 57.8528. However, the Judge's 

determination does not take into consideration what occurred between the June 2009 meeting 

and the issuance of Order No. 6482848 on January 26, 2010. Sec'y Ex. F. 

 Between October 14 and October 22, 2009, MSHA issued six separate citations to 

Newmont at the Midas Mine for violations of section 57.8528. Sec'y Exs. Q, W, CC, GG, JJ, 

MM. Four of these citations (Sec'y Exs. W, CC, GG, MM) explicitly stated that the heading in 

question lacked a barricade, and a fifth citation (Sec'y Ex. JJ) stated that there was only a partial 

barricade. Any question in the minds of Newmont's management from the June meeting as to 

when a barricade was needed should have been dispelled by the six citations issued in October. 

 Moreover, MSHA Inspector Jack Stull testified, without contradiction, that on October 

20, 2009, in the course of his issuing Citation No. 6488537 for lack of a barricade and a proper 

sign at the 1-4750 South Heading (Sec'y Ex. W), Midas Mine Health and Safety Specialist Sandy 

McFarland became "really mad," swore at Stull, and "said that they're not going to put a barrier 

up in all the headings that are going to be mined soon." Tr. 145-46. The next day Stull and his 

supervisor Jim Fitch met with McFarland and other Newmont officials. Tr. 153-54. In a meeting 

lasting an hour, Fitch explained barricading as required by 30 C.F.R. § 57.8528. Tr. 155-57; 

Sec'y Ex. K, at 15-16. Surely, any reasonable question of what section 57.8528 required was 

dispelled by the events of October 20-21. 

 In November, following the issuance of the October citations, Newmont changed its 

barricading procedures. Tr. 237-38, 295. The new policy created three categories of headings n 

"Active Heading" (headings are presently in production or development or scheduled for 

production or development within four weeks), which only require a rope barrier; "Short Term 

Inactive Heading" (headings which are scheduled for production nor development within 4 to 12 

weeks, or have been removed from active status due to changes in ground or ventilation), which 

require a snow fence barricade or a berm; and "Long Term Inactive Heading" (headings which 

are scheduled for production or development beyond 12 weeks, or where mining activities are 

complete), which require a chain link fence. NM Ex. 8.10 Significantly, while the barricades for 

Short Term Inactive and Long Term Inactive Headings are "intended to restrict access into the 

area", the rope barrier for Active Headings is only "intended to impede access." Id. Moreover, 

the signage required for Active Headings does not clearly restrict access but only says "Heading 

Inspection Required." Id. 

 The distinction in the new barricading policy between areas requiring a snow fence, berm 

or chain link fence designed to "restrict access," and areas requiring only a rope barrier designed 

to "impede access" is keyed to the length of time until production or development n i.e., more or 

less than four weeks. Although Newmont's new barricading policy explicitly references and 

quotes section 57.8528, it totally ignores the distinction which triggers the need for a barricade n 

 10 In the transcript, the updated barricade procedures are referred to as "Exhibit 4." Tr. 

237-40, 295, 306. However, this document is marked as "Exhibit 8" in the record. 

37 FMSHRC Page 511
whether an area is "unventilated." Despite the series of section 57.8528 citations and the meeting 

with MSHA in October, Newmont's new barricading policy simply does not require a barricade 

for an unventilated area if the area is scheduled for production or development within four 

weeks. 

 Moreover, the 1-5301 headings which are the subject of the January 26, 2010 Order in 

this case do not appear to even be within Newmont's new policy allowing rope barriers for areas 

scheduled for production or development within four weeks. According to Midas Mine 

Supervisor Sid Tolbert, on January 26, 2010, Newmont was still evaluating whether it would 

continue developing the 1-5301 North and South Headings, and had not scheduled either heading 

for production or development. Tr. 263. Hence, in merely putting up a rope barrier, Newmont 

was ignoring its own policy that rope barriers were to be used only for those headings actually 

scheduled for production or development within four weeks. 

 Given the series of six citations for section 57.8528 violations in October, McFarland's 

adamant behavior on October 20, the meeting with MSHA the next day, the promulgation of a 

new policy which does not recognize that the gravamen of section 57.8528 is whether or not an 

area is "unventilated," and Newmont's ignoring of its own policy in permitting the 1-5301 

headings to be unbarricaded on January 26, 2010, the Judge's finding of "good faith" is doubtful. 

Even crediting the Judge's finding, it certainly cannot be said that Newmont's actions constituted 

objectively reasonable compliance with section 57.8528. 

 Finally, I note that in the Judge's unwarrantable failure analysis, he did not explicitly 

consider and weigh several of the factors enumerated in Commission decisions such as 

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013) and IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009). Such factors include the duration of the violation, the danger posed 

by the violation, and the history of violations of section 57.8528 showing that Newmont had 

been placed on notice that greater efforts were necessary for compliance. In considering the issue 

of unwarrantable failure on remand, the Judge should consider these factors. 

 /s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

37 FMSHRC Page 512
COMMISSION 25'(56

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

FREEPORT-MCMORAN CHINO   

MINES &203$1<

Docket No. 

A.C. No. 

CENT 2014-453-M 

29-00708-349622 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (ZMine Act[). On June 23, 2014, the Commission received from 

Freeport-McMoran Chino Mines Company (ZFreeport[) a motion seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (Zthe 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).

37 FMSHRC Page 513
Records of the Department of Laborcs Mine Safety and Health Administration 

(ZMSHA[) indicate that the proposed assessment was delivered on May 5, 2014, and became a 

final order of the Commission on June 4, 2014. Freeport asserts that it failed to timely contest the 

proposed assessment since during the allotted time period for contesting the proposed 

assessment, its Health and Safety Manager was out of the country on other company business. 

Freeport attempted to file its contest on June 6, 2014, two days late. The Secretary does not 

oppose the request to reopen and urges the operator to take steps to ensure that future penalty 

contests are timely filed. 

Having reviewed Freeportcs request and the Secretarycs response, in the interest 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 Commissioncs Procedural Rules, 29 C.F.R. 

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

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

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

37 FMSHRC Page 514
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

LCT ENERGY, LP 

Docket No. 

A.C. No. 

PENN 2014-819 

36-09939-342560 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On April 29, 2014, the Commission received from LCT 

Energy, LP ([LCT\) a motion seeking to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

37 FMSHRC Page 515
 Records of the Department of Labords Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on February 3, 2014, and 

became a final order of the Commission on March 5, 2014. LCT asserts that it failed to timely 

contest the proposed assessment due to a clerical error, and has altered its procedures to ensure 

that future proposed assessments are timely contested. LCT made timely payment to MSHA for 

the citations it did not contest, and filed its motion to reopen very shortly after receiving a notice 

of delinquency. The Secretary does not oppose the request to reopen.

 Having reviewed LCTds request and the Secretaryds response, in the interest 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 Commissionds Procedural Rules, 29 C.F.R. Part 

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

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

 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 516
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

COLWELL CONSTRUCTION 

 COMPANY 

Docket No. 

A.C. No. 

SE 2014-191-M 

38-00738-323449 PPJ 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On March 10, 2014, the Commission received from Colwell 

Construction Company ([Colwell\) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

37 FMSHRC Page 517
 

 Records of the Department of Laborcs Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on June 6, 2013 and became a 

final order of the Commission on July 8, 2013. Colwell asserts that it is a sub-contractor and did 

not contest the violations due to a lack of information or access to the relevant documentation at 

its office. The Secretary does not oppose the request to reopen and notes that some confusion 

may have existed with the initial issuance of the citation naming the mine owner, Bluegrass 

Materials, as the operator. The Secretary urges the operator to take steps to ensure that future 

penalty contests are timely filed. 

 Having reviewed Colwellcs request and the Secretarycs response, in the interest 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 Commissioncs Procedural Rules, 29 C.F.R. Part 

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

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

 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 518
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

N.A. DEGERSTROM, INC. 

Docket No. 

A.C. No. 

WEST 2014-501-M 

26-00550-339911 AT0 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On March 26, 2014, the Commission received from N.A. 

Degerstrom, Inc. ([Degerstrom\) a motion seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

37 FMSHRC Page 519
 Records of the Department of Labords Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on January 3, 2014, and became 

a final order of the Commission on February 3, 2014. Degerstrom asserts that it timely contested 

the proposed assessment at issue. Degerstrom filed its motion to reopen immediately upon 

receiving the Secretaryds delinquency notice. 

The Secretary does not oppose the request to reopen, but he says there is no record of a 

notice of contest being received for this proposed assessment. 

 Having reviewed Degerstromds request and the Secretaryds response, in the interest 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 Commissionds Procedural Rules, 29 C.F.R. 

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

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

 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 520
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BRAND ENERGY & 

 INFRASTRUCTURE SERVICES 

Docket No. 

A.C. No. 

WEST 2014-526-M 

26-02673-337166 

D405 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (]Mine Act^). On April 1, 2014, the Commission received from Brand Energy 

and Infrastructure Services (]Brand^) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

37 FMSHRC Page 521
 Records of the Department of Laborfs Mine Safety and Health Administration 

(]MSHA^) indicate that the proposed assessment was delivered on November 25, 2013, and 

became a final order of the Commission on December 26, 2013. Brand asserts that its counsel, 

who contested the underlying citation, did not receive the proposed assessment as it was mailed 

to a company address in Georgia, rather than to its regional office in California. The Secretary 

does not oppose the request to reopen, but he notes that the proposed assessment was delivered 

to the companyfs address of record, where receipt was acknowledged, and urges the operator to 

take steps to ensure that future penalty contests are timely filed. 

 Having reviewed Brandfs request and the Secretaryfs response, in the interest 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 Commissionfs Procedural Rules, 29 C.F.R. Part 

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

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

 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 522
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

TATA CHEMICALS (SODA ASH) 

 PARTNERS 

Docket No. 

A.C. No. 

WEST 2014-582-M 

48-01497-344166 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On April 25, 2014, the Commission received from Tata

Chemicals (Soda Ash) Partners ([Tata\) a motion seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

37 FMSHRC Page 523
 Records of the Department of Laborcs Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on March 3, 2014, and became a 

final order of the Commission on April 2, 2014. Tata asserts that it failed to timely contest the 

proposed assessment due to the individual who was responsible for contests being on medical 

leave, and his assistant being reassigned to different duties as part of a corporate reorganization. 

The person who then received the proposed assessment, Brett Harding, was inexperienced with 

the procedures for contesting MSHA penalties and did not realize that the citations and orders 

had been split into two proposed assessments. Harding mistakenly believed that the citations and 

orders in proposed assessment No. 000344166 had been timely contested since Tata had properly 

contested other citations and orders issued during the same inspection. When he discovered the 

mistake, he acted to rectify it. Tata filed this motion to reopen within less than a month of the 

proposed assessments becoming final, and accompanied it with an affidavit containing a detailed 

explanation of the cause of the default. 

The Secretary does not oppose the request to reopen, and urges the operator to take steps 

to ensure that future penalty contests are timely filed. 

 Having reviewed Tatacs request and the Secretarycs response, in the interest 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 Commissioncs Procedural Rules, 29 C.F.R. Part 

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

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

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

 

37 FMSHRC Page 524
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

TATA CHEMICALS (SODA ASH) 

 PARTNERS 

Docket No. 

A.C. No. 

WEST 2014-586-M 

48-00155-344161 

 

 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On April 28, 2014, the Commission received from Tata 

Chemicals (Soda Ash) Partners ([Tata\) a motion seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

37 FMSHRC Page 525
 Records of the Department of Laborcs Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on March 3, 2014, and became a 

final order of the Commission on April 2, 2014. Tata asserts that it failed to timely contest the 

proposed assessment due to the individual who was responsible for contests being on medical 

leave, and his assistant being reassigned to different duties as part of a corporate reorganization. 

The person who then received the proposed assessment, Brett Harding, was inexperienced with 

the procedures for contesting MSHA penalties and did not realize that the citations and orders 

had been split into two proposed assessments. Harding mistakenly believed that the citations and 

orders in proposed assessment No. 000344161 had been timely contested since Tata had properly 

contested other citations and orders issued during the same inspection. When he discovered the 

mistake, he acted to rectify it. Tata filed this motion to reopen within less than a month of the 

proposed assessments becoming final, and accompanied it with an affidavit containing a detailed 

explanation of the cause of the default. 

 The Secretary does not oppose the request to reopen, and urges the operator to take steps 

to ensure that future penalty contests are timely filed. 

 Having reviewed Tatacs request and the Secretarycs response, in the interest 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 Commissioncs Procedural Rules, 29 C.F.R. Part 

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

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

 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 526
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 30, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

PETRO CHEMICAL INSULATION, 

INC. 

Docket No. 

A.C. No. 

KENT 2014-606 

15-00365-348946 V7D 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (\Mine Act]). On June 25, 2014, the Commission received from Petro 

Chemical Insulation, Inc. (\Petro]) a motion seeking to reopen a penalty assessment that had 

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

30 U.S.C. § 815(a). 

 On May 3, 2014, Petro received a proposed penalty assessment from the Secretary. On 

May 26, 2014, MSHA deemed the proposed assessment to be a final order of the Commission 

when it appeared, due to an MSHA error, that the operator had not filed a Notice of Contest 

within 30 days. However, the proposed assessment did not become a final order of the 

Commission until June 2, 2014. 

 

 Petro asserts that it timely contested the penalty as it mailed its contest on May 30, 2014, 

and its contest was received by MSHA on June 2, 2014. The Secretary does not oppose the 

request to reopen and notes that the operator had timely contested the penalty, but due to an 

MSHA error, the case had been marked as delinquent. 

 

 Having reviewed Petrobs request and the Secretarybs response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because the 

operator timely contested the proposed assessment. Section 105(a) states that if an operator \fails 

to notify the Secretary that he intends to contest the . . . proposed assessment of penalty, . . . the 

citation and the proposed assessment of penalty shall be deemed a final order of the 

Commission.] 30 U.S.C. § 815(a). Here, Petro notified the Secretary of the contest. This obviates 

any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure in order to consider 

reopening a final order.

37 FMSHRC Page 527
 Accordingly, the operatorbs motion to reopen is moot, and this case is remanded to the 

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

Commissionbs Procedural Rules, 29 C.F.R. Part 2700. 

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 528
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

March 30, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

RHINO EASTERN, LLC 

Docket No. 

A.C. No. 

WEVA 2014-892 

46-08758-341184 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) ([Mine Act\). On May 2, 2014, the Commission received from Rhino Eastern, 

LLC ([Rhino\) a motion seeking to reopen a penalty assessment that had become a final order of 

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

37 FMSHRC Page 529
 Records of the Department of Labords Mine Safety and Health Administration 

([MSHA\) indicate that the proposed assessment was delivered on January 16, 2014, and 

became a final order of the Commission on February 18, 2014. Rhino asserts that it timely 

contested the proposed assessment, but for some reason, MSHA did not receive its contest. 

Rhino also represents that it has added a second oversight level to the process of contesting 

citations and orders to ensure that paperwork is timely filed. The Secretary does not oppose the 

request to reopen, but he asserts that there is no record of a notice of contest filed for these 

penalties.

 Having reviewed Rhinods request and the Secretaryds response, in the interest 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 Commissionds Procedural Rules, 29 C.F.R. Part 

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

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

 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

 William I. Althen, Commissioner 

37 FMSHRC Page 530
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 3, 2015 

DECISION AND ORDER OF REINSTATEMENT

Appearances: J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of 

Labor, Arlington, VA for Complainant 

Arthur Wolfson, Esq., and R. Henry Moore, Esq., Jackson & Kelly, PLLC, 

Pittsburgh, PA for Respondent 

Before: Judge Rae 

This case is before me upon an application for temporary reinstatement brought by the 

Secretary of Labor, on behalf of Dallas Brooks, under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, as amended, 30 U.S.C. §815(c) and 29 C.F.R. §700.45. The application 

seeks reinstatement of Mr. Brooks as a roof bolter at the Kingston No. 2 mine pending final 

disposition of the discrimination complaint he filed on January 6, 2015 as a result of his 

suspension on September 24, 2014 and termination on October 1, 2014. 

A hearing was held on February 25, 2015 in South Charleston, WV. For the reasons set 

forth below, I grant the application for temporary reinstatement and retain jurisdiction over this 

matter until final disposition of the complaint on the merits. 

Statement of Facts 

Brooks has been a roof bolter at the Respondent`s Kingston No. 2 mine on the day shift 

for the past three years. In his position, he installs roof bolts using a two-man bolter which he 

operates with his partner Timothy Patterson. After the continuous miner makes the cut into the 

coal, the bolter comes in behind it in the return air course and installs the bolts. The approved 

mine ventilation plan restricts the miners to bolting only once per shift in the return air (or 

downwind). Working downwind more than once per shift is a violation of state and federal law 

and poses a health risk to the miners.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

RQEHKDOIRI DALLAS BROOKS 

v. 

KINGSTON MINING, INC., 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEVA 2015-432-D 

HOPE-CD 2015-03 

Mine: Kingston No. 2 Mine 

37 FMSHRC Page 531
 Brooks testified that it was common practice to bolt downwind three or four times a shift 

at least three days per week. The frequency of this practice increased in 2014 when, according to 

Brooks, management cut down on the overtime that was authorized. Prior to that, the bolters 

would install the second set of bolts after the end of the regular shift four or five nights a week. 

According to Brooks, he felt pressured into bolting downwind several times per shift by his 

section foreman, Josh Bullard. Brooks testified that Bullard told him that if the bolting was not 

done during the shift, Brooks would be forced to work overtime or would be replaced. Brooks 

further testified he and Bullard commuted to and from work together and Bullard told Brooks 

that he didn`t want to stay late so Brooks would have to get the bolting done during the shift. 

Repeated comments of this nature from Bullard made Brooks believe that if he didn`t bolt 

downwind several times per shift to complete the bolting by the end of the shift, he would be 

fired. This prompted Brooks to make safety complaints. He testified that he made verbal 

complaints to Bullard at morning meetings. Bullard`s response was that he reported it to his boss 

who said it had to be done because the miner could not be idled. Bullard said he had also spoken 

with Superintendent Daniel Helmondollar about it but nothing was done. Brooks testified that 

upper management was aware of the practice as he and other roof bolters had filled out the 

eRunning Rightf cards as well making anonymous complaints about working downwind. These 

cards are reviewed by upper management and are displayed on a television monitor stamped 

eaddressedf although it was never corrected. The issue came to a head when Brooks` roof 

bolting partner, Patterson, walked into Helmondollar`s office on September 23, 2014 and stated 

that he would not work in this manner any further. Helmondollar then contacted Shad West, 

Human Resources manager, and together they commenced an investigation the following day 

which led to the suspension and eventual termination of Bullard, Patterson, Brooks and the two 

other section roof bolters. 

 

 Both Helmondollar and West testified that they had no knowledge of Brooks making any 

safety complaints about working downwind. Bullard had never communicated any such 

complaints to them. If he had, the matter would have been addressed immediately. During the 

investigation of Patterson`s complaint, West and Helmondollar interviewed Bullard and each of 

the roof bolters. Bullard said he told the bolters that if they did choose to operate in the dust more 

than once per shift, that he can`t be held responsible for that if he`s not around where they are or 

able to see them. He denied any complaints being made to him by Brooks. West testified that 

when he questioned Brooks, Brooks told him that he was never asked to do anything illegal and 

the he bolted downwind so he didn`t have to stay late. Brooks did not allege that he made any 

complaints to anyone when questioned by West. West further testified that each of the bolters 

confirmed that they voluntarily bolted downwind several times per shift. At that point, the 

decision was made to suspend the four roof bolters and Bullard. The only miner not suspended 

was the scoop operator who filled in as a roof bolter on occasion. He told West that he had 

refused to bolt downwind and had never done so. 

 Helmondollar testified that he was aware of eRunning Rightf cards being submitted 

complaining of working downwind in violation of the ventilation plan in 2013. There were three 

or four of them and he immediately held safety talks with all foremen and miners and told them 

the ventilation plan must be followed. No further complaints were received until Patterson came 

to his office on September 23rd. Although Brooks testified that he raised the issue with 

Helmondollar at a meeting in August 2014, Hellmondollar denied this allegation. Helmondollar 

37 FMSHRC Page 532
did state that when Brooks was questioned on September 25th, Brooks did mention that he had 

made safety complaints to Bullard. Brooks also stated he didn`t want to work overtime as a 

reason for bolting more than once in return air. 

Application of Law 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Act. The purpose of the protection is to encourage miners eto play an 

active part in the enforcement of the Actf recognizing that eif miners are to be encouraged to be 

active in matters of safety and health they must be protected against any possible discrimination 

which they might suffer as a result of their participation.f S. Rep. No. 181, 95th Cong. 1st Sess. 

35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 

(1978). 

 Unlike a trial on the merits of a discrimination complaint brought by the Secretary where 

the Secretary bears the burden of proof by the preponderance of the evidence, the scope of a 

temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act, as well 

as Commission Rule 45(d), 29 C.F.R. §2700.45(d), limit the issue in an application for 

temporary reinstatement to whether the subject discrimination complaint has been efrivolously 

brought.f 

 In its decision in Jim Walters Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), 

the Court noted that the efrivolously broughtf standard is entirely different from the scrutiny 

applicable to a trial on the merits of the underlying discrimination complaint. The standard is 

whether a miner`s complaint appears to have merit. The Commission has set forth the elements 

to be considered under this standard: 1) that the miner has engaged in some protected activity 

under the Act, and 2) that the adverse action complained of was at least in part motivated by the 

protected activity. SecEy of Labor o/b/o Baier v. Durango Gravel, 21 FMSHRC 953 (Sept. 1999). 

The motivation can be established by showing knowledge of the protected activity, hostility or 

animus towards the protected activity, and coincidence in time between the activity and the 

adverse action. The last element alone may be sufficient to find improper motive. Durango 

Gravel at 957. A temporary reinstatement hearing is not the appropriate forum for a 

determination of credibility between competing versions of events in evaluating whether a 

complaint appears to have merit. CAM Mining LLC, 311 FMSHRC 1085 (Oct. 2009). 

 While there are several statements made by Brooks in his testimony and written 

statements that contradict each other, I find sufficient evidence under the enot frivolously 

broughtf standard to find he engaged in protected activity. He testified that he made safety 

complaints to Bullard, a member of management, on several occasions most notably within the 

three month period before he was terminated. He also testified that he filled out complaint cards 

previously which Helmondollar acknowledged he was aware of a year or so earlier although he 

testified that he believed the issue had been resolved. Helmondollar testified that Brooks made 

no safety complaints that he was aware of yet he admitted that Brooks did say to him that he had 

made such complaints to Bullard. Bullard stated to Brooks that he brought the complaints to the 

attention of upper management, including to Helmondollar, but nothing was done in response. 

37 FMSHRC Page 533
Helmondollar denied that Bullard did so. Even though Helmondollar admitted that Brooks told 

him he had complained about working downwind, Helmondollar and West made the 

determination that Brooks did so voluntarily which caused him to be terminated. 

 Whether Helmondollar had knowledge of safety complaints made by Brooks requires an 

assessment of credibility not properly addressed in this forum. The same holds true as to whether 

Brooks actually made safety complaints to Bullard or whether he elected to bolt in return air in 

violation of the ventilation plan voluntarily. The fact that Brooks told Helmondollar when 

interviewed that he had made safety complaints to his supervisor as Helmondollar confirmed is 

sufficient at this juncture to find that Brooks engaged in protected activity by complaining about 

illegal bolting. That the miners bolted in return air more than once per shift has been established. 

His suspension and termination were directly related to this conduct. The nexus in time between 

the safety complaints Brooks testified to making and his termination is sufficient to establish 

motivation for the purposes of this hearing. 

 I find the complaint is not frivolously brought. 

 The Respondent made a motion to dismiss the complaint as untimely. Brooks was 

suspended on September 25, 2014 and ultimately discharged on October 1, 2014. He filed his 

complaint on January 9, 2015, 100 days later. While the statute provides that a complaint be filed 

with the Secretary within 60 days after the discriminatory action has occurred, Commission case 

law is clear that the filing period is not jurisdictional. Morgan v. Arch of Illinois, 21 FMSHRC 

1381 (Dec. 1999). Whether a complaint is untimely requires a factual determination on a case by 

case basis. A late filing may be excused on the basis of justifiable circumstances including 

ignorance, mistake, inadvertence, and excusable neglect. When a serious delay causes legal 

prejudice to the respondent, dismissal may be required. Perry v. Phelps Dodge Morenci, Inc., 18 

FMSHRC 1918 (Nov. 1996). Brooks testified that he was unaware of his right to file a complaint 

for being discharged. MSHA Investigator Humphrey testified that when he interviewed Brooks 

in relation to an anonymous complaint of a violation of the ventilation plan, it was obvious to 

him that Brooks had no idea of his rights. On the other hand, Kingston failed to present any 

evidence of prejudice suffered as a result of this insubstantial delay. It is highly unlikely that any 

could be found. 

 

 I deny Respondent`s motion to dismiss. 

37 FMSHRC Page 534
 Kingston Mining, Inc., is hereby ORDERED to immediately reinstate Dallas Brooks to 

his duties as a roof bolter as of the date of his suspension and termination at the same rate of pay 

and number of weekly hours with restoration of all other benefits to which he was then entitled. 

 Mr. Brooks` reinstatement will end upon a final order on the underlying discrimination 

complaint case in chief. 30 U.S.C. §815(c)(2). 

/s/ Priscilla M. Rae

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., 22nd Floor West, Arlington, VA 22209-2247 

Arthur Wolfson, Esq., Jackson & Kelly, PLLC, Three Gateway Center, 401 Liberty Ave., Ste. 

1500, Pittsburg, PA 15222 

R. Henry Moore, Esq., Jackson & Kelly, PLLC, Three Gateway Center, 401 Liberty Ave., Ste. 

1500, Pittsburg, PA 15222 

Dallas Brooks, 97 Whip Road, Craigsville, WV 26206 

37 FMSHRC Page 535
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th S7. S8,7( 443 

D(19(5, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 5, 2015 

DECISION

Appearances: Ryan Pardue, U.S. Department of Labor, Office of the Solicitor 

 1244 Speer Blvd., Suite 216, Denver, CO 80204 

 Donna V. Pryor, Jackson Lewis P.C. 

 950 17th Street, Suite 2600, Denver, CO 80202 

Before: Judge Simonton 

I. INTRODUCTION 

This case is before me on a civil penalty petition filed by the Secretary of Labor, acting 

through the Mine Safety and Health Administration (MSHA), against Ames Construction, Inc. 

(Respondent), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 

and 820. This case involves one 104(a) citation issued on November 4, 2013 at the Barrick Gold 

Mill Autoclave Operations site for alleged improper housekeeping within a mobile storage 

trailer. The parties presented testimony and documentary evidence at a hearing held in Salt Lake 

City, Utah beginning December 10, 2014 followed by submission of post hearing briefs. 

At hearing, MSHA Inspector Jack Stull testified for the Secretary. Ames Site Foreman 

David Jackson and Carpenter Jose Rodriguez testified for the Respondent. For the reasons that 

follow, Citation No. 8701612 is VACATED. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

AMES CONSTRUCTION, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2014-274 

A.C. No. 26-02674-339615 

Mine: Mill/Autoclave Operations 

37 FMSHRC Page 536
II. MOTION IN LIMINE

Prior to hearing, the Respondent moved to exclude photos and training documents 

created after the alleged housekeeping violation had been abated to Inspector Stullbs satisfaction. 

Resp. Mot., 1. The Respondent argued that post-abatement photos did not have any relevancy in 

proving the existence of a violation prior to mandatory abatement efforts. Id. at 3-5 citing FRE 

407; Sec&y of Labor v. B&S Trucking Co., 17 FMSHRC 411, 414 (ALJ Melick)(March 1995). 

The Secretary opposed the Respondentbs motion, arguing that the photos and training documents 

would only be entered to detail abatement efforts and document what clutter was removed from 

the trailer. Secby Response, 4. At hearing the court allowed counsel to present brief oral 

arguments on this issue. Tr., 8-11. Upon questioning by the Court, both the Secretary and the 

Respondent confirmed that the operator had successfully and promptly abated the alleged 

violation. Tr. 9. The parties also confirmed that MSHA Inspector Stull had taken photos prior to 

issuing the citation that documented the condition of the trailer prior to the requested abatement. 

Tr. 8. Based on these representations, the undersigned excluded post abatement photos from 

consideration as the photos did not have any relevancy to the existence of a prior violation and 

were inadmissible per Federal Rule of Evidence 407.1 Tr., 10. 

III. FINDINGS OF FACT

A. Citation No. 8701612 

MSHA Inspector Jack Stull issued Citation No. 8701612 for an alleged violation of 30 

CFR §56.20003(a) on November 4, 2013. Stull alleged within the citation that: 

At the T.C.M Leach Project, Elutions Area, Contractor Trailer 

#730804, housekeeping was an issue. Multiple tripping hazards 

were found in and around the travel area located inside the trailer. 

Two miners were observed accessing the trailer earlier in the shift 

to get tools. In the event of an accident involving a miner tripping 

and falling, lost workdays or restricted duty injuries would be 

expected to occur. The Foreman in the area was aware that the 

trailer was (in) need of cleaning, but failed to take action to ensure 

that the work was performed prior to miners accessing it. 

GX 11, 1. 

Stull designated Citation No. 8701612 as a high negligence violation that was reasonably 

likely to contribute to the occurrence of an injury resulting in lost workdays or restricted duty. 

1

 The court has previously admitted post-abatement photos of a condition in a separate 

proceeding. SCH Terminal, Inc., 2014 WL 6723959, *14 (November 2014)(ALJ Simonton). 

However, in that, case, the admitted post-abatement photos were the only photos depicting the 

relevant condition and the court relied on them for the limited purpose of corroborating the 

inspectorbs testimony regarding pre-abatement conditions. 

37 FMSHRC Page 537
Stull also determined that the housekeeping violation was significant and substantial. The 

Secretary has proposed a regularly assessed penalty of $12,248.00 for Citation No. 8701612. 

1. Testimony 

a. The Secretary 

 MSHA Inspector Jack Stull testified for the Secretary. Stull testified that when he 

approached a mobile trailer at approximately 8:30 AM on November 4, 2013 he observed two 

workers exiting the trailer with buckets. Tr. 34-35. Stull stated that when he looked into the 

trailer he observed a yellow box2 with rounded feet at the entrance of the trailer sticking out, a 

folding chair with a water cooler on top, and several sheets of plywood lying at an angle. Tr., 27-

28. Stull determined that these items presented a tripping hazard and measured the narrowest part 

of middle walkway in the trailer at 13 inches. Tr. 31. Stull testified that he considered walkways 

less than 24j wide unsafe but stated that this standard was kjust (his) own opinion.j Id. 

 Stull testified that the two workers he saw exiting the trailer appeared to head towards a 

concrete project approximately 15-20 feet away from the trailer. Tr. 33, 34-35. Stull stated that 

he attempted to ask the workers where their boss was but the workers appeared to be 

uncomfortable communicating in English and left. Tr. 35. Stull stated that an Ames supervisor 

arrived shortly thereafter. Id. Stull stated that the Ames supervisor told him that khe knew that 

the trailer needed cleaning but he was busy with this concrete project right now.j Id. Stull 

determined that this comment indicated high negligence on the part of Respondentbs 

management. Tr. 35-36, 44. Stull stated that lost workday injuries including broken bones and 

contusions were likely to occur from the alleged tripping hazards present in the trailer. Tr. 43. 

Stull indicated that he had reviewed accident reports where significant injuries had resulted from 

trips and falls. Tr. 44. 

 Stull stated that Ames management informed him that the trailer had just been moved that 

morning. Tr. 45. Stull did not consider that a credible mitigating factor because the trailer was 

not connected to a truck and a grounding wire was already connected to the trailer at 8:30 AM, 

one and a half hours after. Id. Stull did not believe that the trailer had just been moved. Id. 

 On cross-examination, Stull stated that prior to abatement, it was not necessary to step 

over anything to access any tool or material in the trailer. Tr. 51-52. Stull did maintain that a 

broom head was sticking out into the aisleway at head level and needed to be pushed back. Id. 

Stull testified that after being notified of the alleged violation, Ames abated the violation 

by widening the walkway in the trailer and hanging tools up on nails or stacking them in the 

shelving. Tr. 47-48. Stull stated that the abatement was complete by 9:00 AM. Tr. 47. 

 2

 The kyellow boxj described by Inspector Stull was readily identified in the inspection 

photo as a standard temporary power box as later confirmed by Ames Foreman Jackson. Tr. 100. 

37 FMSHRC Page 538
b. The Respondent 

 Amesbs carpenter, Jose Rodriguez, testified for the Respondent. 3 Tr. 78. Rodriguez 

stated that he worked on a small labor crew at the Barrick mine site directed by Foreman Dave 

Jackson. Tr. 80. 

 Rodriguez testified that Ames had recently moved the storage trailer in order to clear 

space for another company. Tr. 81. Rodriguez stated that he opened the trailer after the company 

had its morning meeting on Monday. Tr. 82. Rodriguez testified that Foreman Jackson had told 

them when they first moved in and on Monday morning to clean the trailer. Tr. 83. Rodriguez 

stated that he removed several buckets from the trailer to get them out of the way before 

Inspector Stull spoke with him. Tr. 85. Rodrigues stated that he did not have any trouble moving 

around in the trailer. Id. Rodriguez stated that Inspector Stull only asked him where the foreman 

was and did not ask him any other questions. Tr. 87. 

 Concrete Foreman David Jackson testified regarding Citation No. 8701612 and the 

conditions of the cited trailer. Jackson stated that the cited trailer was a tool trailer that was 

approximately 20 feet wide by six feet wide inside to inside. Tr. 96, 98. Jackson testified that he 

and his crew relocated the trailer the Friday evening before the citation was issued to make way 

for a crane move. Tr. 101-02. Jackson testified that the temporary power box, water cooler, 

sheets of expansion material, and power (screed) pointed out by Inspector Stull were moved into 

the trailer for the crane move. Id. 

 Jackson stated that when his crew returned to the jobsite the next Monday he conducted a 

safety meeting with his crew that lasted about thirty minutes. Tr. 103. Jackson testified that he 

instructed Mr. Rodriguez and Mr. Sherez early on Monday morning to remove the material 

stored temporarily in the trailer. Tr. 103-04. Jackson stated that extension cords, spare harnesses, 

and other tools were stored in their normal position. Tr. 104-05. 

 Jackson testified that when Inspector Stull asked him if he knew there was a hazard he 

answered yes. However, Jackson became frustrated when Stull accused him of willfully exposing 

his workers to a hazard and did not inform Inspector Stull that he had assigned workers to clean 

up the trailer. Tr. 106. On cross-examination, Jackson stated that when he acknowledged that 

there was a hazard in the trailer he was simply agreeing that some material needed to be removed 

from the trailer. Tr. 117. 

 3

 Jose Rodriguez testified with the aid of a translator. Tr. 79. Mr. Rodriguez stated in 

English that he could understand and speak English but felt more comfortable using a translator 

to avoid possible confusion. Id. 

37 FMSHRC Page 539
B. The Cited Standard 

 30 CFR 56.20003(a) mandates: 

Workplaces, passageways, storerooms, and service rooms shall be 

kept clean and orderly. 

30 CFR 56.20003(a). 

The MSHA Program Policy Manual does not provide any guidance regarding what 

constitutes a violation of 30 CFR § 56.2003. A Commission Administrative Law Judge has 

upheld an alleged violation of 56.20003(a) even in the absence of a significant hazard when the 

Secretary has shown that deficient housekeeping conditions were extensive. Baker Rock 

Crushing Company, 2010 WL 3616493, *6 (August 2010)(ALJ Barbour)(affirming non S&S 

56.20003(a) citation when Secretary demonstrated existence of an kaccumulation of dirt, dust 

and hydraulic fluid spillage throughout the rock breaker area.j(emphasis added). However, an 

ALJ has vacated an alleged violation of 30 CFR 56.20003(a) when the judge has found that: 

The photograph taken by the inspector shows a trailer that is 

relatively clean and orderly. (Ex. P-8). Spare hoses and belts are 

hung from hooks on the wall; other hoses are coiled along one 

side; various cans, including oil barrels, are located along that 

same side; and a pathway leads into the area. The only slightly 

cluttered area is at the back of the trailer, but even that area is 

rather clear of impediments to walking. There are long pieces of 

metal along one side, but the floor is clearly visible along the 

pathm 

Beco Construction Company, 23 FMSHRC 1182, 1194 (October 2001) (ALJ Manning). 

 An ALJ has also vacated an alleged violation of 30 CFR 56.20003(a) when the 

Respondent credibly demonstrated that workers had not been exposed to recently formed 

accumulations and the Respondent had already initiated clean-up efforts. Stringtown Materials 

LP, _4, Docket No. CENT 2004-229-M, (unpublished May 18, 2005)(ALJ Zielinski). 

C. Analysis

As an initial matter, I find that 30 CFR § 56.20003(a) applied to the mobile trailer cited 

by Inspector Stull. Ames uses the trailer to store small tools and construction materials. Tr. 81, 

98-99. Accordingly, the trailer fits the definition of a kstoreroomj listed in 30 CFR 56.20003(a). 

After reviewing all testimony and evidence presented, I find that the Secretary has not 

established by a preponderance of the evidence that the Respondent failed to maintain the mobile 

trailer in a kclean and orderly condition.j Although Inspector Stull objected to the positioning of 

a temporary power box, folding chair, and water cooler at the front of the trailer; it appears there 

were at least several feet of clear space to the side of these items through which the workers 

37 FMSHRC Page 540
could enter the trailer. GX 3. The photo submitted by the Secretary also indicates that small 

tools, including shovels, brooms, and breaker bars were placed upright and out of the main 

walkway within secure shelving. Id. On the opposite side of the trailer it appears that rain gear, 

safety harnesses and extension cords were placed on racks and hung in an orderly fashion. Id. 

The point Inspector Stull marked on the inspection photo as measuring at 13 inches wide is a 

small isolated section of the center walkway that otherwise appears to be approximately three 

feet wide throughout trailer. Id. As such, I find that the evidence submitted indicates that the 

trailer was, in fact maintained in a relatively clean and orderly fashion prior to the issuance of 

Citation No. 8701612. Beco Construction Company, 23 FMSHRC 1182, 1194. 

The inspection photo does indicate that there were two sheets of expansion material 

toward the back of the trailer leaning at a low angle. GX 3. However, as these sheets were butted 

up against a large metal concrete finishing screed, I do not credit Inspector Stullbs testimony that 

the plywood was likely to slide out into the walkway and cause an accident. GX 3; Tr. 29-30. I 

also note that Inspector Stull stated that it was not necessary to step over any item to walk in the 

trailer, and did not provide for any support for his individual belief that a continuous 24j wide 

walkway was necessary to comply with 30 CFR § 56.20003(a). Tr. 31, 51-52. Accordingly, I 

find that the Secretary has not demonstrated that conditions in the trailer presented a hazard. 

I also credit the testimony of Rodriguez and Jackson that the items Inspector Stull 

objected to had been placed there temporarily for a recent trailer move. Tr. 81, 100. Foreman 

Jackson credibly testified that it was necessary to move the trailer the Friday before and store 

extra material in the trailer over the weekend while a large crane was moved on site. Tr. 100. 

Jackson and Rodriguez both testified that Jackson instructed his crew to remove those temporary 

materials after the Monday morning safety meeting. Tr. 83, 103-04. Rodriguez stated that after 

he opened up the storage trailer on Monday morning, he and his partner removed the buckets 

from the front of the trailer and intended to remove the expansion material, temporary power 

box, and concrete finishing screed before Inspector Stull contacted them. Tr. 83-86. 

Inspector Stull testified that he thought the two Ames laborers were not cleaning the 

trailer on the basis that no other materials had been removed from the trailer and the laborers 

appeared to leave the trailer and head towards a concrete project with buckets. Tr. 34-35, 36-37, 

46. However, according to Stull, the concrete project was only 15 to 20 feet away from the 

trailer. Tr. 33. Additionally, after observing the workers remove the buckets from the trailer, 

Stull quickly contacted the workers and asked them where their boss was. Tr. 35. Given that 

Stull first observed the Respondentbs laborers only shortly after the conclusion of the morning 

safety meeting, it is unsurprising that Rodriguez and his partner had not yet made significant 

progress in reorganizing the trailer. Tr. 85, 104. As such, I find the record demonstrates that the 

Respondentbs employees were actively engaged in cleaning the trailer prior to the time Inspector 

Stull issued Citation No. 8701612. Stringtown Materials LP, _4, Docket No. CENT 2004-229-

M. 

Inspector Stull emphasized that after he issued Citation No. 8701612, the Respondentbs 

employees cleared out the materials he objected to and significantly widened the interior 

walkway. Tr. 48. However, I have already found above that the Secretary has failed to prove that 

the presence of these items violated 30 CFR 56.20003(a). Thus, evidence showing that Ames 

37 FMSHRC Page 541
removed and rearranged additional items in the mobile trailer after Inspector Stull issued the 

citation is not sufficient to sustain the alleged violation. 

Having found that the trailer was kept in a relatively clean and orderly condition free of 

safety hazards, and that the Respondentbs employees were actively removing materials normally 

stored elsewhere at the time of the citation in order to clean the trailer; I find that the Secretary 

has not established a violation of 30 CFR 56.20003(a). 

 

IV. ORDER 

 Accordingly, Citation No. 8701612 is VACATED and this matter is DISMISSED. 

 /s/ David P. Simonton

 David P. Simonton 

 Administrative Law Judge 

Distribution: (First Class U.S. Mail) 

Ryan Pardue, U.S. Department of Labor, Office of the Solicitor 

1244 Speer Blvd., Suite 216 

Donna v. Pryor, Jackson Lewis P.C. 

950 17th Street, Suite 2600 Denver, CO 80202 

37 FMSHRC Page 542
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 12, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

HUMPHREYS ENTERPRISES, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2012-504 

A.C. No. 44-07133-290886 

Mine: No. 26 Strip 

DECISION AND ORDER

Appearances: Najah A. Farley, Esq., and Ryan M. Kooi, Esq., U.S. Department of 

Labor, Office of the Solicitor, Philadelphia, Pennsylvania, for Petitioner; 

 William J. Sturgill, Esq., Sturgill Law Office, P.C., Wise, Virginia, for 

Respondent. 

Before: Judge Paez 

 This case is before me upon the Secretarycs Petition for the Assessment of Civil Penalty 

filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). In dispute are one section 104(d)(1) citation and one section 104(d)(1) order issued to 

Humphreys Enterprises, Inc. (hereinafter eHumphreysf or eRespondentf) by the Mine Safety 

and Health Administration (eMSHAf) at the Lyons Pit section of Humphreysc No. 26 Strip mine. 

In order to prove the citation and order before me in this proceeding, the Secretary must establish 

the existence of each violation eby a preponderance of the evidence,f that is, the trier of fact 

must find the existence of fact is more probable than its nonexistence. RAG Cumberland Res., 

22 FMSHRC 1066, 1070 (Sept. 2000). 

I. STATEMENT OF THE CASE 

Both of the alleged violations in this docket were issued following a quarterly inspection 

of Respondentcs No. 26 Strip mine by MSHA Inspector Stonewall Eldridge. Citation No. 

8172475 charges Humphreys with a violation of 30 C.F.R. § 77.1000 for failing to maintain spoil 

slopes at a 45-degree angle as required by the minecs ground control plan. Order No. 8172476 

alleges a violation of 30 C.F.R. § 77.1313(a) for failing to conduct an adequate on-shift 

examination. Both of these alleged violations are designated as esignificant and substantialf 

37 FMSHRC Page 543
(eS&Sf)1

 and determined to be the result of Respondentcs unwarrantable failure to 

comply with a mandatory health or safety standard.2 The Secretary proposes a penalty of 

$2,000.00 for each alleged violation for a total proposed civil penalty of $4,000.00. 

Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. VA 2012-504 to 

me, and I held a hearing on May 8, 2014, in Abingdon, Virginia.3 The Secretary presented the 

testimony of MSHA Inspector Stonewall Eldridge and Geotechnical Engineer Gregory 

Rumbaugh. (Tr. 15:18j25, 105:1j8.) Humphreys presented the testimony of four witnesses: 

Mine Foreman Terry A. Brooks, Surveyor Jewell E. Carty, Engineer James R. Jones, and 

Humphreysc Safety Director Lawrence E. Clapp. (Tr. 144:1j5, 167:1j8, 173:2j8, 183:3j9.) 

The briefing schedule closed in August 2014, with both the Secretary and Humphreys submitting 

simultaneous post-hearing briefs, and the Secretary filing a reply brief.4

II. ISSUES 

The Secretary asserts that both the citation and order in this docket were properly issued 

and that each was an S&S violation of the Mine Act and an unwarrantable failure to comply with 

a mandatory health or safety standard. (See Seccy Br. at 13j32.) Accordingly, the Secretary 

believes his proposed penalty is appropriate. (Id. at 32.) In contrast, Respondent believes that 

the conditions at the Lyons Pit section of Humphreysc No. 26 Strip mine on December 27, 2011, 

were safe and that the mine was following its MSHA-approved ground control plan. (Respct Br. 

at 37j38.) In particular, Respondent disputes not only the accuracy of Inspector Eldridgecs angle 

 1

 The S&S terminology is taken from section 104(d)(1) of the Mine Act, which 

distinguishes violations eof such nature as could significantly or substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard.f 30 U.S.C. § 814(d)(1).

2

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Mine Act, 

30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused 

by an eunwarrantable failure of [an] operator to comply with . . . mandatory health or safety 

standards.f

3

 At the hearing, the Secretary and Respondent submitted exhibits and a list of 

stipulations. In this decision, the Secretarycs exhibits are referenced as eGovct Ex. #,f 

Respondentcs exhibits are referenced as eRespct Ex. #,f and the stipulations are referenced as 

eJoint Stip. #.f Government Exhibit 19 includes four photographs, which were also admitted 

separately as Respondent Exhibits 1, 2, 5, and 6. Government Exhibit 20 includes four 

photographs also marked Respondent Exhibits 3, 4, 7, and 8. For ease of description, the 

photographs are referenced in this decision as Respondent Exhibits 1 through 8. Further, the 

cross-section map of the Lyons Pit was marked as Government Exhibit 21 and Respondent 

Exhibit 10, and is referred to as eGovct Ex. 21f throughout this decision. Similarly, a map of the 

Lyons Pit area was marked as Government Exhibit 22 and Respondent Exhibit 9, and is referred 

to as eGovct Ex. 22f in this decision. 

4

 In this decision, Respondentcs Brief will be referenced as eRespct Br.,f the Secretarycs 

Post-Hearing Brief will be referenced as eSeccy Br.,f and the Secretarycs Reply Brief as eSeccy 

Reply.f

37 FMSHRC Page 544
measurements but also the meaning of Humphreysc notations in its on-shift examination records. 

(Respct Br. at 15j16, 23j24.) Therefore, Respondent contends Citation No. 8172475 and Order 

No. 8172476 should be vacated. (Respct Br. at 37j38.) Respondent further contends, in the 

event the alleged violations are upheld, that the cited conditions were neither S&S nor due to the 

operatorcs unwarrantable failure. (See Respct Br. at 13j36.) Thus, Respondent argues that the 

Secretarycs proposed penalties should be vacated or reduced. (Id.) 

Accordingly, the issues before me are: (1) whether the Secretary has carried his burden of 

proof that the conditions described in Citation No. 8172475 violated 30 C.F.R. § 77.1000; (2) 

whether the record supports the gravity and unwarrantable failure designations for Citation No. 

8172475; (3) whether the Secretary has carried his burden of proof that the conditions described 

in Order No. 8172476 violated 30 C.F.R. § 77.1313(a); (4) whether the record supports the 

gravity and unwarrantable failure designations for Order No. 8172476; and (5) whether the 

proposed penalties for each alleged violation are appropriate. 

III. FINDINGS OF FACT 

A. Operations at Humphreys Enterprises No. 26 Strip Mine

Respondent Humphreys Enterprises operates the No. 26 Strip mine, located in Norton, 

Virginia. (Joint Ex. 1: Stip. 1; Govct Ex. 3.) The No. 26 Strip mine contains four coalbeds. 

(Govct Ex. 3.) The alleged violations in this matter relate to Humphreysc mining activity of the 

Lyons coalbed, in an area of the mine known as the Lyons Pit. The coal seam at the Lyons Pit 

was initially covered by espoil,f which is material, such as rock, dirt, and tree roots, that has 

accumulated over the coal seam. (Tr. 23:4j8.) To access the coalbed to remove coal, 

Humphreys had to dig a path through the spoil for their equipment to reach the coalbed. 

(Tr. 149:8j150:13.) 

MSHA regulations at 30 C.F.R. § 77.1000 require operators such as Humphreys to 

eestablish and follow a ground control plan for the safe control of all highwalls, pits, and spoil 

banks,f and to file a copy of their ground control plan with their local MSHA district office. See 

30 C.F.R. § 77.1000, 77.1000-01. Humphreys Enterprises submitted the ground control plan for 

their No. 26 Strip mine to the appropriate MSHA District Manager in Norton, Virginia on April 

27, 2009. (Govct Ex. 3.) The plan was developed in conjunction with engineering services 

provided to Humphreys by Appalachian Technical Services, and establishes pit dimensions and 

mining practices for the No. 26 Strip mine that are designed to ensure safe and stable ground 

conditions. (Id.) The ground control plan specifies that the maximum angle of deposited spoil at 

the Lyons Pit is 45 degrees. (Id. at 2.) 

In December 2011, Humphreys Enterprises began operations in the Lyons Pit. 

(Tr. 149:21j23.) First, dozers started removing spoil and pushing it into piles to create a 

pathway for rubber-tired mining equipment to get to the coalbed. (Tr. 149:8j150:11.) As the 

dozers moved toward the coal seam, they pushed spoil into two spoil banks running along the 

left and right sides of their path. (Id.) The right-side spoil bank was part of an existing highwall 

that had been created by a previous mining company. (Tr. 22:7j25.) The left-side spoil bank, in 

contrast, consisted completely of spoil that Humphreys had dug out to access the coalbed. 

(Tr. 22:20j25.) The etoef of the right-side spoil bank, where the spoil bank meets the pit floor, 

37 FMSHRC Page 545
had been dug back to widen the floor so the path would be wide enough for etwo production 

loaders and a truck in between themf to travel abreast for double loading while removing spoil 

material. (Tr. 36:19j37:8, 51:16j52:6; see Joint Ex. 1: Stips. 14j17.) This equipment moved in 

to the area on December 21, 2011, which meant the Lyons Pit became eactivef on that day. 

(Tr. 148:8j14; Joint Ex. 1: Stip. 6.) By December 27, the day of the inspection, Humphreysc 

productions loaders and haulers had advanced past the spot between the two spoil banks but had 

not yet reached the exposed coalbed; Humphreys was still in the process of removing the spoil 

material in front of the coalbed but now only one hauler (or truck) at a time was driving between 

the spoil banks. (Tr. 24:10j24, 51:22j52:11.) 

B. Inspection at the Lyons Pit on December 27

 Ground Control Violation

On December 27, Inspector Eldridge arrived at the Lyons Pit portion of the No. 26 Strip 

Mine at approximately 7:15 a.m. to conduct a regular EO1 (or quarterly) inspection. (Tr. 19:5j6, 

20:23, 21:4.) Prior to arriving at the mine, Eldridge had prepared for the inspection by reviewing 

the minecs files, including its ground control plan. (Tr. 19:11j17.) Once Eldridge arrived at the 

mine, he met with Mine Foreman Terry Brooks and began traveling around the facility with him. 

(Tr. 20:24j21:3.) He traveled with Brooks down into the pit area, where equipment operators 

were loading overburden and hauling it to the overburden dump area with both production 

spreads.5 (Tr. 21:7j11.) 

As Eldridge walked into the pit, he followed the path Humphreys created between the 

right and left spoil banks to access the coal seam. (Tr. 21:23j22:11.) While in the pit, Eldridge 

immediately noticed the spoil banks on each side of the Lyons Pit appeared to be too steep. 

(Tr. 26:7j11.) He discussed the spoil banks with Brooks and documented the conversation 

contemporaneously in his inspection notes. Eldridge wrote, eI commented that the left side of 

the pit the spoil had been sloped some but was not finished. [Brooks] stated that they had started 

sloping it but pulled off of it. The Right [sic] side spoil has not been touched (sloped) at all.f 

(Tr. 26:17j22, 29:15j22; Govct Ex. 2 at 5j6.) 

Because the slope on both the left and right spoil banks appeared to be greater than the 

required maximum angle, Eldridge took out his Abney hand level and began to measure the 

angles on the spoil banks.6 (Tr. 32:5j14.) Using the hand level, Eldridge measured the rightside spoil slopecs angle to be sixty-nine degrees, and the left-side spoil slopecs angle to be sixty 

degrees. (Tr. 34:25.) To support his measurements, Eldridge took several photographs of the 

spoil slopes. (Tr. 35:1j5; Govct Exs. 4j10.) Eldridge also noted that the etoef of the slope, 

where the spoil bank met the mine pit floor, had been dug out of the spoil banks, presumably to 

5

 A eproduction spreadf at the Lyons Pit consists of a production loader and a couple of 

haulers. (Tr. 19:20j22.)

6

 The Abney hand level is a standard MSHA-issued piece of equipment often used to 

measure slope angles and grades. (Tr. 34:16j20.) 

37 FMSHRC Page 546
allow equipment removing spoil material to get through, thus increasing the slope angle. 

(Tr. 36:7j11.) 

 

 Eldridge considered the left and right spoil banks to be hazardous to miners because they 

had not been sloped down to the required 45-degree angle, and he had documented equipment 

traveling within approximately three feet of the recently cut-out etoef of the slope. (Tr. 37:11j

19.) In addition, Eldridge observed larger diameter boulders and water seepage on the right-side 

spoil slope. (Tr. 38:9j11; Govct Ex. 5.) The seepage concerned him because it indicated the 

spoil was saturated with water and thus unstable.7

 (Tr. 38:10j15.) Eldridge believed these 

conditions were S&S and an unwarrantable failure under section 104(d)(1) of the Act. 

To abate the spoil slope condition, the mine constructed two earth berms 30 feet away 

from the toe of each spoil bank, which would prevent any miners or equipment from getting too 

close to the spoil banks and being covered with spoil in the event of a structural failure. 

(Tr. 50:10j51:16.) Humphreys flagged each berm with red tape so miners could easily identify 

and avoid the hazardous area. (Tr. 51:7j13, 53:6j10, 162:19j23; Govct Exs. 11j14.) This 

method of abatement was appropriate because equipment no longer needed to be close to the toe 

of the spoil bank (nor did any additional material need to be cut out of the toe); at that point in 

the mining process at the Lyons Pit, the operator was moving only haulers in and out one at a 

time, rather than digging between the spoil banks with both loaders abreast as a unit and a truck 

in between to haul out the spoil. (Tr. 51:16j52:14.) After Humphreys constructed the berms, 

Eldridge issued Citation No. 8172475, which reads verbatim: 

The mine operator is not following the established ground control 

plan for the safe control of all highwalls, pits and spoil banks. The 

spoil banks located in the Lyons Strip Pit are not being sloped to 

45 Degrees or less as stated in the Ground Control Plan dated April 

27, 2009. The spoil bank on the right side of the pit is on a 69 

Degree slope and stands 35c to 40c high. The left side spoil bank is 

on a 60 Degree slope and stands 50c to 55c high. Two production 

loaders are working sideways underneath the high spoil while 

loading two haulers. The foreman engaged in aggravated conduct 

constituting more than ordinary negligence by allowing the 

equipment to work underneath the hazardous spoil. This violation 

is an unwarrantable failure to comply with a mandatory standard. 

 

(Govct Ex. 1; see Joint Ex. 1: Stips. 12, 14j15.) 

 7

 The rainfall and temperature changes during December caused freeze and thaw cycles, 

which create further instability. (Tr. 39:19j23.) When water freezes, it expands, wedging into 

the spoil around it. (Tr. 39:17j24.) When the ice thaws, it contracts, allowing the same area to 

accommodate more water than before. (Id.) When the water freezes again it will wedge the 

spoil out even further. (Id.) Thus, over time, these freeze-thaw cycles contribute to instability. 

(Id.)

37 FMSHRC Page 547
Eldridge marked this citation as ereasonably likelyf due to both the steepness of the spoil 

banks and the recent rain and consequent water saturation that would contribute to the slopecs 

instability. (Tr. 54:6j22.) He also determined this violation could cause epermanently 

disablingf injuries because, in the event of a spoil slope failure, spoil material would come down 

over equipment on the pit floor. (Tr. 55:10j18; Govct Ex. 1.) Eldridge believed this was S&S 

and would lead to serious injuries, even though the body of the equipment itself might provide 

some protection from the crushing injuries. (Id.) Because Eldridge had not observed any miners 

on foot in the area, he marked the type of injury as epermanently disablingf rather than efatal.f 

(Id.) Eldridge also designated this citation as an unwarrantable failure with high negligence 

because he thought an experienced foreman should have easily recognized the condition, given 

how obvious the steepness of the spoil banks had been upon entering the Lyons Pit. (Tr. 55:19j

56:22.) 

2. On-shift Examination Violation 

Eldridge continued his inspection by looking at the minecs examination records, noting 

that the day shift examination notes for December 21 state espoil highf under the eHazardous 

Conditionf section of notes on the Lyons Pit. (Tr. 56:1j4; Joint Ex. 1: Stip. 8; Govct Ex. 16.) 

These on-shift examination notes also state under the eAction Takenf section, eworking down 

with dozers.f (Joint Ex. 1: Stip. 9; Govct Ex. 16.) Yet, the high spoil conditions Eldridge 

observed on December 27 were not recorded in the on-shift examination book for either the 

December 21 evening shift or on December 22. (Joint Ex. 1: Stips. 10j11; Govct Exs. 17j18.) 

As a result, Eldridge issued Order No. 8172476, which states verbatim: 

Adequate on shift examinations are not being done in the Lyons 

strip pit. The Lyons strip pit became active on December 21, 

2011, on the day shift at which time the foreman recorded in the on 

shift examination book that the pit had eHigh Spoilf and the 

corrective action recorded was eworking down with dozersf. No 

hazards were reported in the exam book for the night shift, also 

working in the Lyons pit on December 21, 2011. No spoil hazards 

are reported in the exam book for either shift on December 22, 

2011. The mine was idle four days during the holidays and 

resumed work today, December 27, 2011. The spoil banks in the 

Lyons pit are not sloped to a maximum of 45 Degrees as stated in 

the Ground Control Plan. No entries of any kind have been 

documented in the exam book for today. The foreman engaged in 

aggravated conduct constituting more than ordinary negligence by 

not documenting and correcting the spoil bank hazards. This 

violation is an unwarrantable failure to comply with a mandatory 

standard. 

(Govct Ex. 15.) 

Mine Foreman Terry Brooks conducted both pre-shift and on-shift examinations on 

December 27. (Tr. 150:15j20.) Over the course of the shift, Brooks explained he would look at 

37 FMSHRC Page 548
the spoil banks in the Lyons Pit approximately once an hour, and they appeared safe and stable to 

him during the shifts prior to the inspection. (Tr. 154:18j23, 159:17j22.) Brooks also 

acknowledged that the minecs on-shift examination notes on December 21 indicate high spoil in 

the Lyons Pit area but maintained this was in reference to the spoil in a different area than the 

one Eldridge had cited. (Tr. 154:1j6.) 

C. Humphreysc Spoil Bank Survey 

When Humphreysc Safety Director Clapp arrived at the Lyons Pit on December 27, 2011, 

he spoke with Brooks and learned that the mine had been issued a section 104(d)(1) citation and 

a section 104(d)(1) order during the inspection earlier that day. (Tr. 184:8j14.) He then walked 

to the pit and saw the cited area had been barricaded and flagged. (Tr. 184:18j25.) Because 

Clapp did not believe the spoil banks were sloped at an unsafe angle, he decided to conduct his 

own survey of the spoil slopes. (Tr. 185:2j10.) He had ordered similar surveys in the past 

because he felt his surveyorsc equipment was far more accurate than hand-held equipment, such 

as the Abney hand level. (Id.) Clapp instructed the foreman and night shift foreman not to 

disturb the areas that had been flagged off. (Tr. 184:24j25.) On his way home from the mine 

that day, Clapp stopped by the mine office and told Humphreysc surveyor Roger Jones that their 

surveyors should meet him in the Lyons Pit to conduct a survey the next morning. (Tr. 185:8j

10.) 

On December 28, 2011, Humphreysc surveyor Jewell Carty went to the Lyons Pit to 

conduct a survey of the cited spoil slopes. (Tr. 168:22j69:15.) Upon arriving at the pit, Carty 

and a survey team met with Brooks and Clapp. (Tr. 169:1j6.) Clapp informed them that a 

citation had been written on the slope and instructed them as to where he wanted them to take a 

cross-section of the slope. (Tr. 206:15j24.) The surveyors then conducted a survey of the 

sections of the spoil slopes that had been flagged the day before. (Tr. 169:10j18.) They sent 

their survey data to the engineering department, where a cross-section survey map was produced 

under the supervision of Cartycs supervisor, Roger Jones. (Tr. 168:13j17, 169:16j170:7; Govct 

Ex. 21.) This map shows the slope angles on the right and left side spoil bankss to be 

approximately 44.4 and 45.8 degrees, respectively. (Govct Ex. 21.) Although both Carty and 

Jones had surveying experience, neither one is a licensed land surveyor. (Tr. 170:21j25, 

181:24j25.) 

IV. PRINCIPLES OF LAW 

A. 30 C.F.R. § 77.1000

 Section 77.1000 requires that: 

 

Each operator shall establish a ground control plan for the safe 

control of all highwalls, pits, and spoil banks to be developed after 

June of 1971, which shall be consistent with prudent engineering 

design and will insure safe working conditions. The mining 

methods employed by the operator shall be selected to insure 

highwall and spoil bank stability. 

37 FMSHRC Page 549
30 C.F.R. § 77.1000. The Commission has recognized that this section requires operators of 

surface coal mines to establish and follow a ground control plan. RNS Servs., Inc., 18 FMSHRC 

523, 523 n.1 (Apr. 1996). Humphreysc ground control plan required the spoil banks in the Lyons 

Pit to be sloped at an angle no greater than 45 degrees. (Govct Ex. 3.) 

 

B. 30 C.F.R. § 77.1713(a)

 Section 77.1713(a) requires that: 

At least once during each working shift, or more often if necessary 

for safety, each active working area and each active surface 

installation shall be examined by a certified person designated by 

the operator to conduct such examinations for hazardous 

conditions and any hazardous conditions noted during such 

examinations shall be reported to the operator and shall be 

corrected by the operator. 

30 C.F.R. § 77.1713(a). Under this standard, an operator must ensure that a certified person 

regularly checks active working areas for hazards, records them, and corrects any hazardous 

conditions. See Black Castle Mining Co., 36 FMSHRC 323 (Feb. 2014). In order to establish a 

violation of this standard, the Secretary must show hazardous conditions were present in the 

Lyons Pit when the mine was active on December 22 and 27, 2011, and that these conditions 

were not recorded in the on-shift examination book or corrected as required by the applicable 

standard. 

C. Significant and Substantial

Both of the alleged violations in this docket were designated as S&S violations. A 

violation is S&S if, ebased on the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.f Cement Div., Nat?l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: e(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazardnthat is, a measure of danger to safetyn

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.f Mathies Coal Co., 6 FMSHRC 1, 3j4 (Jan. 1984) (footnote omitted); 

see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 

1995) (affirming ALJcs application of the Mathies criteria); Austin Power, Inc. v. Sec?y of Labor, 

861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). 

Besides specifying the elements I must consider in examining an S&S designation, the 

Commission has also provided guidance to Administrative Law Judges in applying the Mathies

test. The Commission found that ean inspectorcs judgment is an important element in an S&S 

determination.f Mathies, 6 FMSHRC at 5 (citing Nat?l Gypsum, 3 FMSHRC at 825j26); see 

also Buck Creek Coal, 52 F.3d at 135j36 (stating that ALJ did not abuse discretion in crediting 

the opinion of an experienced inspector). The Commission has also observed that ethe reference 

to ohazardc in the second element is simply a recognition that the violation must be more than a 

37 FMSHRC Page 550
mere technical violationni.e., that the violation present a measure of danger.f U.S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (citing Nat?l Gypsum, 3 FMSHRC at 827). Moreover, 

the Commission has indicated e[t]he correct inquiry under the third element of Mathies is 

whether the hazard identified under element two is reasonably likely to cause injury.f Black 

Beauty Coal Co., 34 FMSHRC 1733, 1742 n.l3 (Aug. 2012). In addition, ethe absence of an 

injury-producing event when a cited practice has occurred does not preclude a determination of 

S&S.f Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citations omitted), 

aff?d on other grounds, 717 F.3d 1020 (D.C. Cir. 2013). Finally, the Commission indicated an 

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

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

Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

D. Unwarrantable Failure

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

30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a 

violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined 

that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id.

at 2001. Unwarrantable failure is characterized by such conduct as ereckless disregard,f 

eintentional misconduct,f eindifference,f or a eserious lack of reasonable care.f Id. at 2003j04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,194 (Feb. 1991); see also Buck Creek Coal, 

52 F.3d at 135j36 (approving Commissioncs unwarrantable failure test). 

Whether conduct is eaggravatedf 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. 

The Commission has identified several such factors, including the length of time that the 

violation has existed, the extent of the violative condition, whether the operator has been placed 

on notice that greater efforts are necessary for compliance, the operatorcs efforts in abating the 

violative condition, whether the violation is obvious or poses a high degree of danger, and the 

operatorcs knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000), appeal docketed, No. 01-1228 (4th Cir. Feb. 21, 2001), appeal 

voluntarily dismissed (Oct. 19, 2001) (eConsolf); 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, 1243j44 (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 actorcs 

conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 

V. ANALYSIS, FURTHER FINDINGS OF FACT, AND CONCLUSIONS OF LAW 

A. Additional Findings of Fact 

The parties disagree on the angle at which the spoil banks in the Lyons Pit were sloped. 

The parties presented conflicting evidence regarding their perceptions of the slope angles, the 

accuracy of angle measurements taken with an Abney hand level, and the reliability of the cross37 FMSHRC Page 551
section map produced by Humphreys. The parties also disagree as to the meaning of the espoil 

highf notation in the minecs examination book during the day shift on December 21. 

1. Angle of the Spoil Bank Slopes at the Lyons Pit 

Several witnesses testified about their visual impressions of the spoil bank slope angles at 

the Lyons Pit, based on both their recollections and analysis of photographs. Inspector Eldridge 

testified it was immediately apparent to him that the spoil banks in the Lyons Pit appeared to be 

steeper than 45 degrees, and he supported his observations by taking photographs and angle 

measurements. (Tr. 26:6j11, 32:7j34:25; Govct Exs. 4j14.) I find Eldridgecs testimony to be 

credible, particularly because his photographs depict spoil slopes that appear very steep. (See 

Govct Exs. 4j14.) To further support Eldridgecs contention that the spoil banks were steeper 

than 45 degrees, the Secretary presented the testimony of Gregory Rumbaugh, an MSHA 

engineer asked to investigate the spoil slope citation at the Lyons Pit. Rumbaugh has extensive 

relevant experience, and he sufficiently and competently explained why the photographs and 

documents he reviewed indicated that Humphreys was in violation of its ground control plan.8 

As he pointed out, several features in the photographs indicate the spoil banks were steeper than 

45 degrees, including reference objects and areas where the toe had been cut back to create a 

steeper angle. (Tr. 113:14j116:23; Govct Exs. 4j14.) Throughout their testimony, both Eldridge 

and Rumbaugh convincingly explained why the spoil slopes were sloped at approximately 60- to 

70-degree angles. 

In contrast, Humphreysc Foreman Brooks testified that he had regularly examined the 

slopes for potential hazards, that they appeared safe to him, and that he knew the ground control 

plan required the slopes to be at a 45-degree angle. (Tr. 146:22j147:18, 154:15j23.) However, 

Brooks later admitted he had never reviewed the ground control plan in its entirety. (Tr. 165:10j

15.) He was also unable to tell Inspector Eldridge the plancs maximum allowable spoil slope 

angle when asked on the day of the inspection. (Tr. 30:14j20.) Brooksc testimony indicates he 

was not sufficiently familiar with the minecs ground control plan. It is unclear how Brooks could 

be certain the spoil slopes were safe and in compliance with the ground control plan without 

knowing the specifics of the plan. Because of the inconsistencies in Brooksc testimony, I find it 

to be unreliable and outweighed by Inspector Eldridgecs testimony. 

Respondent also argues that the Secretarycs photographs and measurements were not 

accurate enough to support a violation. Safety Director Clapp argued that the angle at which a 

photograph is taken can have a great impact on the perceived slope, and he took his own pictures 

to show this. (Tr. 186:6j7, 188:1j10; Respct Exs. 1j8.) Clapp and surveyor Jewell Carty also 

doubted the precision of Inspector Eldridgecs Abney hand level, suggesting that his 

measurements might be off by several degrees. (Tr. 193:13j194:7, 171:11j172:16.) Both men 

 8

 Prior to joining MSHA, Rumbaugh had approximately 10 years of work experience as a 

land engineer, which included experience with the excavation of new slopes at a mine, as well as 

investigations of various geotechnical aspects of engineering projects. (Tr. 105:18j106:14.) 

Specifically, Rumbaugh has experience investigating a fatal accident caused by an embankment 

failure, as well as evaluating embankment and highwall stability. (Tr. 107:22j25, 109:19j24.)

37 FMSHRC Page 552
suggested that correct use of the hand level required a steady hand and some estimation, and both 

felt that modern surveying equipment might be more accurate. (Id.) Although the Secretarycs 

expert, Rumbaugh, admitted that both the angle of a photograph and the estimation involved for 

Abney hand level use might affect an angle perception by a few degrees, the difference between 

a 45-degree slope and a 60-degree slope is well beyond these margins. (Tr. 132:4j11, 136:15j

24.) Ultimately, I find that any discrepancies between an angle measurement taken with 

different instruments would be minor, and thus agree with the Secretary that the Abney hand 

level provided a reasonable approximation of the slope angles in this case. (Tr. 132:4j11.) 

Furthermore, Respondent relies on the cross-section map created from Humphreysc 

surveyorsc data as evidence that both spoil slopes in the Lyons Pit were sloped at close to a 

45-degree angle, as required by Respondentcs ground control plan. (Govct Ex. 21.) However, 

several circumstances surrounding Humphreysc survey and creation of this cross-section map 

lead me to determine that the survey map is not reliable. Primarily, I find convincing 

Rumbaughcs explanation as to why Respondentcs survey and cross-section map are unreliable. 

Rumbaugh drew on his extensive geotechnical engineering experience and review of conditions 

at the Lyons Pit. He opined that Humphreysc cross-section map could not be representative of 

the actual condition of the spoil banks because the data points selected for the survey were not 

spread out or numerous enough to depict an accurate representation of the slope angles. 

(Tr. 122:19j127:14, 142:16j19; Govct Exs. 21j22.) For an accurate survey, Rumbaugh stated 

that surveyors would have taken roughly 100 to 200 ground surface eshots,f in contrast to the 

mere 12 taken by Humphreysc unlicensed surveyors.9 (Tr. 127:8j19.) Additionally, the 

Humphreys employee actually taking shots for the survey, Jewell Carty, was not a licensed land 

surveyor. (Tr. 170:21j25.) Although Carty testified that Roger Jones would stamp his work if 

necessary, Jones himself was also not a licensed land surveyor and had not stamped the survey. 

(Tr. 171:1j4, 181:24j25.) These deficiencies cast into question the level of professional 

accountability and supervision present in Humphreysc survey and map production, and thus 

undermine the surveycs reliability. For these reasons, I give no weight to the cross-section map 

produced by Respondent. 

Thus, I find that the Secretary has shown by a preponderance of the evidence that the 

spoil banks in the Lyons Pit on December 27 were sloped at an angle greater than 45 degrees in 

violation of Humphreycs ground control plan. 

2. Interpretation of examination notes 

The parties also presented conflicting testimony regarding the espoil highf notation in the 

minecs on-shift examination book for December 21, 2011. (Govct Ex. 16.) Respondent 

maintains that the espoil highf notation in the on-shift examination book on December 21 was 

referring to high spoil in front of the loaders, not to the cited areas on the side spoil banks. 

(Tr. 151:21j154:6; Respct Br. at 8, 23.) Brooks testified that on December 21, he observed high 

 9

 The minecs safety director, Eddie Clapp, believed that the Humphreysc surveyors took 

the appropriate points ewhere they need to.f (Tr. 189:11j17.) However, Clapp himself is not a 

surveyor.

37 FMSHRC Page 553
spoil in front of the loading equipment, recorded this in his examination book, and had a dozer 

work down the material so it would not be unsafe for the loaders going in to pick up the spoil 

material in front of them. (Tr. 152:1j20.) According to Brooks, the espoil highf notation in his 

examination notes on December 21 had been in reference to a different area, that is, the spoil in 

front of the loading equipment. (Tr. 154:1j6.) 

Yet, Brooksc own contemporaneous actions give me significant pause about the accuracy 

of his testimony on this point. As the parties have stipulated, Brooks recorded espoil highf and 

eworking down with dozersf in his December 21 on-shift examination. However, Brooksc onshift record does not reference the location of the espoilf in question. Although he may have 

testified to the best of his recollection at the hearing, his own contemporaneous account provides 

no basis for determining which espoilf he meant. Even more troubling, Brooks admitted that he 

did not raise this point with Inspector Eldridge at the time of the inspection. (Tr. 154:7j9.) 

Given his position as a foreman responsible for safety hazards and the potentially costly penalty 

facing Humphreys, it is reasonable infer that Brooks would have mentioned the meaning of his 

espoil highf notation when Eldridge issued the citation. In view of the above, I have serious 

doubts regarding the accuracy of Brooksc claim that his espoil highf notation referred to a third 

spoil pile. 

In contrast, Inspector Eldridgecs account corresponds well with his contemporaneous 

inspection notes. Eldridge testified that he was certain the on-shift examination notes on 

December 21 referred to conditions on the left- and right-side spoil banks because, e[t]he two 

spoil banks on the left side and the right side going into the Lyons Pit were the only two spoil 

banks that they had going as far as getting on the Lyons seam . . . .f (Tr. 61:12j16.) Eldridge 

also testified that when he discussed the spoil slopes with Brooks, Brooks stated that the spoil 

had been high and that he had started sloping down a particular area with dozers but had pulled 

off to do something else. (Tr. 62:23j63:1.) When observing the area Brooks referred to, 

Eldridge noted that it was obvious to him where they had started sloping the spoil. (Tr. 62:22j

23.) On each point, Eldridgecs notes from the day of the inspection buttress his account. (See 

generally Govct Ex. 2 (recording his observations).) 

Based on the testimony and evidence before me, I therefore credit Eldridgecs testimony 

on this point, and I find that the plain and direct espoil highf notation on December 21 

referenced material on the spoil banks in the same location as the cited condition. 

B. Citation No. 8172475 j Spoil Bank Slope

 

 1. Fact of Violation 

Section 77.1000 requires each operator to establish a ground control plan for the safe 

control of all highwalls, pits, and spoil banks, and to follow their established ground control plan. 

See 30 C.F.R. § 77.1000. Humphreysc ground control plan established that spoil banks in the 

Lyons Pit would be sloped at an angle no greater than 45 degrees. (Joint Ex. 1; Govct Ex. 3.) 

For the reasons discussed above, I have found the Secretarycs evidence regarding this 

violation to be credible, and that the photographs and testimony support upholding the violation. 

37 FMSHRC Page 554
I give little weight to Respondentcs evidence. At best, Respondentcs arguments suggest that the 

angle measurements and the photographs of the slopes could overstate the slope of the spoil 

banks by a few degrees. Yet, the slopes were measured at 60 and 69 degrees, far greater than the 

45 degrees required by the ground control plan, and photographs of the area support that finding. 

(Tr. 34:24j25, Govct Exs. 4j14; Respct Exs. 1j8.) Even after accounting for a small margin of 

error, it is still obvious from the photographs that the slopes were fairly steep. (Govct Exs. 4, 6.) 

Therefore, I determine that Respondent Humphreys Enterprises violated 30 C.F.R. § 77.1000. 

2. Gravity and S&S determination 

To establish an S&S violation, the Secretary must prove: e(1) the underlying violation of 

a mandatory safety standard; (2) a discrete safety hazardnthat is, a measure of danger to 

safetyncontributed 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.f Mathies, 6 FMSHRC at 3j4. 

As discussed above, the first element of the Mathies test, a violation of a mandatory 

safety standard, has been established. Further, Eldridge and Rumbaugh credibly testified that the 

steepness of the spoil slopes could create a hazard because the spoil material could slide or 

topple, particularly when considering the water seepage and freeze-thaw conditions present at the 

Lyons Pit in December 2011. (Tr. 38:4j15, 128:5j10.) Thus, the Secretary has shown the 

presence of the second Mathies factor, that this violation contributed to a discrete safety hazard 

of the steep spoil slopes failing and causing rocks and spoil material to drop into the pit below. 

With respect to the third Mathies element, this hazard was reasonably likely to result in 

an injury for several reasons. First, the etoef of the spoil bank had been cut out and dug back. 

Because the toe of a spoil bank helps prevent the failure of the material above it, the removal of 

the toe can lead to slope instability. (Tr. 113:19j114:5.) In addition, there had been recent rain 

as well as water seepage on the spoil banks, which Rumbaugh testified can create slope 

instability by as much as a factor of two.10 (Tr. 57:7j10, 114:24j115:2, 159:10j15, 165:22j

166:2; Govct Ex. 2 at 11.) Particularly in December when the inspection took place, any water 

present in the slopes would have undergone freeze and thaw cycles, which means that the 

expansion of water would create gaps in the spoil material and lead to further instability. 

(Tr. 38:11j12, 39:14j24.) 

 10 Respondent objects to the Secretarycs evidence regarding the presence of water on the 

spoil slopes in the Lyons Pit. Specifically, Respondent asserts that neither the text of Citation 

No. 8172475 nor Eldridgecs notes mention water seepage. (Respct Br. at 21.) Although water 

seepage is not mentioned in the text of the eviolationf portion of Citation No. 8172475, the 

inspector had designated the citation as S&S, and evidence of water seepage is relevant to 

consideration of the third Mathies factor (rather than for showing the violation itself). A Judgecs 

decision as to whether a particular violation is S&S is a circumstantial inquiry that must be based 

on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 

1988) (citing National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981)). In this instance, the 

particular facts surrounding this violation include the weather conditions and water content of the 

spoil slopes in the Lyons Pit during December 2011.

37 FMSHRC Page 555
Respondent argues that the likelihood of a spoil bank failure was low because the spoil 

banks had existed for years, as another coal company had been in the area prior to Humphreys, 

and no failures had occurred. (Respct Br. at 26.) This argument is inapplicable to the left side 

spoil bank because it consisted entirely of new spoil material. (Tr. 22:20j25.) Further, even if 

the slopes were stable at the time another mining company was in the area, Humphreysc practice 

of digging back the etoef of the slope created an additional source of instability. (Tr. 76:2j77:9, 

114:1j5.) Most importantly, Respondentcs arguments regarding the absence of slope failure in 

the years prior to this inspection are misplaced. The Commission has held that ethe absence of 

an injury-producing event when a cited practice has occurred does not preclude a determination 

of S&S.f Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citations omitted), 

aff?d on other grounds, 717 F.3d 1020 (D.C. Cir. 2013). Thus, the Secretary has satisfied his 

burden of proof on the third Mathies element. 

Regarding the fourth Mathies factor, this citation was marked as epermanently 

disabling,f because Inspector Eldridge had documented equipment operating close to the spoil 

banks and thought that, in the event of a spoil bank failure, large boulders and spoil material 

would come down onto the equipment and expose miners working in the pit to crushing injuries. 

(Tr. 37:17j20, 44:1j4.) Further, miners were working parallel to the spoil slopes, which 

Rumbaugh testified would increase their exposure to falling material in the event of slope 

instability. (Tr. 128:11j129:1.) In contrast, Clapp did not think any injuries resulting from this 

hazard would be severe because miners are never on foot in this area, so no miner would be 

directly exposed to hazards. (Tr. 194:17j195:15.) Clapp noted that the height of each spoil bank 

was not that much larger than the average height of the equipment used in the pit, which meant 

that there would have to be a emassive failuref to cover a hauler in spoil material.11 (Tr. 195:1j

15.) However, Rumbaugh credibly testified that he had investigated similar circumstances in the 

past, and could remember instances in which equipment operators had become trapped in the 

falling material. (Tr. 128:5j10.) I agree with Eldridgecs determination. Because operators were 

working parallel to the slopes, at times within three feet of the spoil banks, I determine that the 

type of injuries reasonably likely to result from a spoil bank failure would be permanently 

disabling. The Secretary has therefore established the fourth Mathies element. Having 

determined that the Secretary has proven all four of the factors required by Mathies, I conclude 

that Citation No. 8172475 was appropriately designated as S&S. 

3. Negligence and Unwarrantable Failure 

 Whether conduct is eaggravatedf 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. 

The Commission has identified several such factors, and I will discuss each of these factors 

below. 

 

 11 Clapp estimated the average height of equipment to be about 20 feet, and the partiesc

joint stipulations state that on December 27, 2011, the right spoil bank was approximately 35 feet

high and the left spoil bank was approximately 50 feet high. (Tr. 195:1j12; Joint Stip. 14j15.)

37 FMSHRC Page 556
The facts of this violation indicate the presence of several aggravating circumstances at 

the Lyons Pit. First, the violation was extensive in that the mine operator was out of compliance 

with its ground control plan for significant portions of both spoil banks. The violative conditions 

were also obvious, and Inspector Eldridge noticed immediately that the spoil slopes appeared too 

steep. (Tr. 55:21j25.) Even an untrained eye can ascertain from photographs of the Lyons Pit 

that the spoil slopes are very steep. (Govct Exs. 4j14.) Further, the operatorcs efforts in abating 

the violative condition were minimal in that Brooks had instructed the dozers to work down the 

slope, but had called them off the job and done nothing further. For the reasons stated in my 

S&S analysis, the violation posed a high degree of danger that miners could suffer serious 

injuries from falling or sliding rocks and debris from the spoil banks. Moreover, the espoil highf 

notation in the on-shift examination book on December 21 indicates that the operator had 

knowledge of the existence of the violation for the few shifts leading up to Eldridgecs inspection 

on December 27. (Govct Ex. 16.) 

The other unwarrantable failure factors are relatively insignificant as either mitigating or 

aggravating factors. With respect to the length of time the violation existed, the violation in 

question was first present when documented in the examination notes on December 21, and the 

slopes were still too steep during the inspection on December 27. Even after accounting for the 

mine closure over the Christmas holiday from December 22 through 26, there were still four 

shifts during which miners were exposed to hazardous conditions. (Tr. 156:1j2; Joint Ex. 1: 

Stip. 13.) The Secretary did not present any evidence that Humphreys had been on notice from 

MSHA that greater efforts were required for compliance with its ground control plan at the 

Lyons Pit. Indeed, Humphreys had just begun operations in the area and the spoil banks could 

not have existed for longer than a few weeks. After considering all the unwarrantable failure 

factors, I conclude that the above-discussed aggravating factorsnparticularly the operatorcs 

knowledge of the condition, the obvious nature of the violation, and the degree of danger it 

posednall support an unwarrantable failure designation. Consequently, I determine that the 

Secretary proved the ground control violation was the result of the operatorcs unwarrantable 

failure. 

Inspector Eldridge designated the citation as high negligence because he determined this 

violation was obvious, as he had noticed almost instantly upon walking into the Lyons Pit that 

the spoil slopes appeared to be too steep. (Tr. 55:21j25.) This meant that a miner with 

experience in evaluating hazards, such as a certified foreman, should have noticed the condition 

long before the spoil banks were allowed to accumulate to that degree. (Id.) The minecs Safety 

Director Eddie Clapp disagreed with the negligence designation assigned to the citation because 

he felt that the violation came down to a difference of opinion between the inspector and the 

foreman as to the angle of the spoil slopes. (Tr. 198:16j199:6.) However, in the minecs on-shift 

examination book from December 21nsix days before Eldridgecs inspectionnMine Foreman 

Brooks noted high spoil in the Lyons Pit. (Tr. 56:1j4; Govct Ex. 16.) Thus, the record 

demonstrates that mine personnel had actual knowledge of this hazard and failed to address it 

adequately. Accordingly, I conclude that a high negligence designation is appropriate. 

37 FMSHRC Page 557
4. Penalty Analysis 

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil 

penalty: the operatorcs history of previous violations, the appropriateness of the penalty relative 

to the size of the operatorcs business, the operatorcs negligence, the penaltycs effect on the 

operatorcs ability to continue in business, the violationcs gravity, and the demonstrated good faith 

of the operator in attempting to achieve rapid compliance after notification of a violation. See 

30 U.S.C. § 820(i). Further, the Secretary has proposed the statutory minimum of $2,000.00 for 

this section 104(d)(1) citation, and I am bound to go no lower than that minimum amount. 

30 U.S.C. § 820(a)(3)(A); Stansley Mineral Res. Inc., 35 FMSHRC 1177, 1180 (May 2013). 

 Respondentcs violation history shows that it has no history of previous violations at this 

mine. (Govct Ex. 25.) Further, the parties have stipulated as to the size of the mine and that the 

total proposed penalty in this matter will not affect Respondentcs ability to continue in business. 

(Joint Ex. 1: Stips. 19j20.) I find the proposed penalties to be appropriate for the size of the 

operator. As detailed above, I have found that Humphreys displayed high negligence amounting 

to unwarrantable failure and that this violation was S&S. Nothing in the record suggests the 

operator did not demonstrate good faith in achieving compliance after notification of the 

violation. Upon consideration of these factors, I conclude that a penalty of $2,000.00 is 

appropriate for this violation. 

C. Order No. 8172476 j On-shift Examiniation Violation

1. Fact of Violation j 30 C.F.R. § 77.1713(a)

I have found that the spoil banks on both sides of the Lyons Pit were far steeper than 

allowed by Humphreysc ground control plan from December 21 through 27, and Respondentcs 

on-shift examination notes during most of this period show no record of this hazard. (Govct 

Exs. 16j18.) Thus, Respondent also violated 30 C.F.R. § 77.1713(a) by failing to note the 

obvious hazards in its on-shift examination records. 

2. Gravity and S&S determination 

The first Mathies factor, the violation of a mandatory safety standard, has been 

established. The second Mathies factor requires that the violation contribute to a discrete safety 

hazard. Mathies, 6 FMSHRC at 3j4. In this instance, the violation caused a lack of notice of 

steep spoil banks at the mine, which contributed to the hazard of steep, unstable spoil banks on 

either side of the pit. With respect to the third Mathies factor, this hazard was reasonably likely 

to cause an injury because it created a workplace where miners entered the Lyons Pit and 

traveled parallel to the potentially unstable slopes without protection from possible slope 

collapse. Further, the absence of any notation in the onshift records made it more likely that the 

steep slopes would last for longer periods of time because miners would not be aware of the need 

to slope down the spoil. Although not binding on my decision in this matter, I note that other 

Commission Administrative Law Judges have also found violations of this standard to be S&S, 

citing similar concerns that a failure to record hazards will leave those hazards uncorrected and 

make it more likely for miners to be assigned to work in unsafe conditions without any warning 

37 FMSHRC Page 558
of possible danger. See Ky. Fuel Corp., 36 FMSHRC 159, 172 (Jan. 2014) (ALJ); Extra Energy 

Inc., 34 FMSHRC 3285, 3294 (Dec. 2012) (ALJ). Finally, Mathies requires that the injury in 

question be of a ereasonably seriousf nature. Mathies, 6 FMSHRC at 3j4. As discussed above, 

a spoil bank failure would cause large boulders and spoil to come down onto equipment in the 

Lyons Pit, which would be reasonably likely to cause permanently disabling, crushing injuries 

for equipment operators working close to the slopes. Thus, I determine that the fourth Mathies

factor has been met. 

Having determined that the Secretary has proven all four of the factors required by 

Mathies, I conclude that Order No. 8172476 was appropriately designated as S&S. 

 

3. Negligence and Unwarrantable Failure 

 

 The Secretary again claims that Humphreysc level of negligence was ehigh.f (Seccy Br. 

at 32; Seccy Reply at 4.) In addition, the Secretary characterizes the operatorcs conduct as an 

unwarrantable failure to comply with a mandatory standard. (Seccy Br. at 32.; Seccy Reply at 4.) 

According to the Secretary, Respondentcs knowledge of the violative condition, its previousn

and ineffectivenefforts to abate the condition, and the duration of the condition demonstrate that 

Humphreysc actions constitute eaggravatedf conduct that is greater than ordinary negligence. 

(Seccy Br. at 30j32.) For its part, Humphreys claims: (1) it had no notice that the condition was 

violative, (2) that the condition was not dangerous, and (3) that it did not believe the spoil 

material was hazardous.12 (Respct Br. at 30j31, 34j36.) In addition, Respondent notes that 

Humphreys promptly abated the condition. (Id. at 31.) 

 Based on the evidence before me, two of the Commissioncs unwarrantable failure factors 

are again relatively insignificant. Although the condition in this case existed for several days, I 

recognize that the mine did not operate between December 22 and December 26. (Tr. 156:1j2.) 

Thus, miners were only present for a few shifts. In addition, the Secretary did not introduce any 

evidence that Respondent was on notice that greater efforts were necessary for compliance, as 

Humphreys had just begun the process of working in the Lyons Pit that month. (Tr. 149:3j23.) 

In some cases, this lack of notice might constitute a mitigating factor in an unwarrantable failure 

analysis. See Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 3080j81 (Dec. 2014). Yet, 

the Commission has refused to consider a lack of prior notice from MSHA as a mitigating factor 

when an operatorcs eogood faithc belief that it was not required to note [a condition it believed to 

be non-hazardous] in its weekly examination and promptly correct the hazards . . . was not 

objectively reasonable.f Mach Mining, LLC, 35 FMSHRC 2937, 2942j43 (Sept. 2013). Here, 

the slope of the spoil banks violated Humphreysc ground control plan by several degrees, and 

Humphreys objectively should have known that it was required to record the conditions in its onshift reports. Accordingly, I determine that duration and notice neither aggravate nor mitigate 

Respondentcs conduct in this case. 

 12 Humphreysc also reiterates its claim that the ehighfspoil notation on the December 21 

on-shift examination referred to a different area of the mine. (Respct Br. at 28j29, 35.) Given 

my factual findings on this point, see discussion supra Part V.A.2, I need not revisit this 

argument in the context of my unwarrantable failure analysis. 

37 FMSHRC Page 559
However, the five remaining (and interconnected) factors enunciated by the Commission 

suggest that Humphreysc on-shift examination violation constitutes aggravated conduct that is 

greater than ordinary negligence. The spoil banks for each bank exceeded 45 degrees. This 

condition was obvious to anyone conducting an on-shift examination. Specifically, Inspector 

Eldridge identified the spoil banks as excessively steep almost immediately. Moreover, Mine 

Foreman Brooks himself identified the condition in his December 21 exam record. Indeed, he 

initiatednbut did not completenefforts to abate the violative condition. These abatement 

efforts demonstrate his awareness of this obvious condition, which exposed Humphreysc miners 

to the serious danger of being struck or crushed by falling rocks and dirt. In spite of this danger, 

neither Brooks nor any other miner ever recorded these obvious conditions during any of the 

next three shifts. Notwithstanding the actual duration involved, Humphreysc failure was 

extensive because both excessively steep spoil banks were unreported for every active shift 

between Brooksc initial notation on December 21 and Eldridgecs inspection on December 27. 

In many cases, previous efforts to abate a violative condition might somewhat temper an 

operatorcs violative conduct. The Mine Act establishes a high standard of miner safety, and 

operators should be encouraged to make efforts to protect their miners. But in this case, 

Respondentcs half-hearted abatement efforts highlight the magnitude of Humphreysc negligence. 

After Brooks called off Respondentcs efforts to address the excessively steep slopes on 

December 21, no further steps were taken to address those conditions until Eldridge arrived on 

December 27. Despite Brooksc knowledge that these obvious, extensive, and dangerous 

conditions required attention, Humphreysc safety examiners did not note the conditions in their 

on-shift reports for the next three days. 

At best, Humphreysc failure to document these hazards and take adequate action to 

correct them constitutes a level of indifference or disregard for miner safety. Thus, I conclude 

that Respondentcs conduct in this case constituted an unwarrantable failure to comply with a 

mandatory standard. For the same reasons, I likewise conclude that Respondentcs level of 

negligence was ehigh.f 

4. Penalty Discussion

Under section 110(i) of the Mine Act, I must consider the following six criteria in 

assessing a civil penalty: the operatorcs history of previous violations, the appropriateness of the 

penalty relative to the size of the operatorcs business, the operatorcs negligence, the penaltycs 

effect on the operatorcs ability to continue in business, the violationcs gravity, and the 

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

notification of a violation. 30 U.S.C. § 820(i). Further, the Secretary has proposed the statutory 

minimum penalty of $2,000.00 for a section 104(d)(1) violation, and I am bound to go no lower 

than that minimum. See 30 U.S.C. § 820(a)(3)(A); Stansley Mineral Res. Inc., 35 FMSHRC 

1177, 1180 (May 2013). 

Respondentcs violation history shows that they have no history of previous violations at 

this mine. (Govct Ex. 25.) The parties have stipulated to the minecs size and that the proposed 

penalty will not affect Respondentcs ability to continue in business. (Joint Ex. 1: Stips. 5, 19j

20.) I conclude that the proposed penalty is appropriate given the operatorcs size. I have 

37 FMSHRC Page 560
determined that the Secretarycs negligence and gravity designations for this violation are 

appropriate as written. Nothing in the record suggests the operator did not demonstrate good 

faith in achieving compliance after notification of the violation. Upon consideration of these 

factors, I conclude that a penalty of $2,000.00 is appropriate for this violation. 

VI. ORDER

For the reasons above, it is hereby ORDERED that Citation No. 8172475 and Order No. 

8172476 be AFFIRMED as written. Humphreys Enterprises is ORDERED to pay a civil 

penalty of $4,000.00 within 40 days of the date of this decision.13

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Najah A. Farley, Esq., Office of the Regional Solicitor, The Curtis Center, Suite 630 East, 170 

S. Independence Mall West, Philadelphia, PA 19106-3306 

William J. Sturgill, Esq., Sturgill Law Office, P.C., P.O. Box 3458, Wise, VA 24293 

/sd 

13 Payment should be sent to: U.S. Department of Labor, MSHA, Payment Office, 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.

37 FMSHRC Page 561
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 13, 2015 

 

DECISION AND ORDER

Appearances: Michele A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, CO, for the Petitioner 

 Benjamin Wangberg, Esq., Jones, Fuller, Wallner, Cayko, Pederson & 

Huseby, Ltd., Bemidji, MN, for the Respondent 

Before: Judge Rae 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

NORTHERN AGGREGATE, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2014-110-M 

A.C. No. 21-02623-335857-01 

Docket No. LAKE 2014-111-M 

A.C. No. 21-02623-335857-02 

Mine: Portable Crusher 

Docket No. LAKE 2014-180-M 

A.C. No. 21-03781-338680 

Docket No. LAKE 2014-217-M 

A.C. No. 21-03781-341073 

Mine: Plant 5 

Docket No. LAKE 2014-183-M 

A.C. No. 21-03527-338678 

Docket No. LAKE 2014-216-M 

A.C. No. 21-03527-341072 

Docket No. LAKE 2014-430-M 

A.C. No. 21-03527-347702 

Mine: Plant 3 

37 FMSHRC Page 562
I. STATEMENT OF THE CASE 

This case is before me upon seven petitions for assessment of civil penalties filed by the 

Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended, (athe Mine Actb), 30 U.S.C. § 815(d). 

The above-captioned dockets were consolidated for hearing. Violation 8740833, which 

was the sole violation at issue in consolidated docket LAKE 2014-182, was settled prior to 

hearing. The following violations were also settled prior to hearing: Violations 8740831, 

8740832, and 8740834 contained in docket LAKE 2014-111; Violations 8740697, 8740700, 

8740702, 8740703, and 98740706 contained in docket LAKE 2014-183; and Violation 8740707 

contained in docket LAKE 2014-180. My order approving settlement of these violations is dated 

October 7, 2014. Thirteen violations contained in the seven consolidated dockets remained for 

hearing. 

A hearing was held in Carlton, Minnesota on October 21-22, 2014, at which time 

testimony was taken and documentary evidence was submitted. The parties also filed posthearing briefs. I have reviewed all of the evidence at length and have cited to the testimony, 

exhibits and arguments I found critical to my analysis and ruling herein without including a 

summary of testimony given by each witness. Based upon the entire record and my observations 

of the demeanor of the witnesses, I uphold Violations 8672802, 8740705, 8740698, 8740699, 

8740701, 8740827, and 8740836, modify Violations 8740695, 8740828, 8740829, and 8740835, 

and vacate Violations 8740696 and 8740830 for the reasons set forth below. 

II. BACKGROUND 

The parties have stipulated to the following facts: 

1. Northern Aggregate, Inc. (aNorthern Aggregateb or aNorthernb) at all times relevant to 

these proceedings engaged in mining activities and operations at Plant 3 and the Portable 

Crusher in Beltrami County, Minnesota and at Plant 5 in Hubbard County, Minnesota. 

2. Northern Aggregategs mining operations affect interstate commerce. 

3. Northern Aggregate is subject to the jurisdiction of the Mine Act. 

4. Northern Aggregate is an aoperatorb as defined in section 3(d) of the Mine Act, 30 

U.S.C. § 803(d), at the mines where the contested citations in these proceedings were 

issued. 

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to 

section 105 of the Mine Act. 

6. Stephen Dale Cotie, Wilbert Wayne Koskiniemi, and Thaddeus J. Sichmeller were at the 

time the citations were issued authorized representatives of the United States of 

Americags Secretary of Labor, assigned to MSHA, and were acting in their official 

capacity when issuing the citations at issue in these proceedings. 

37 FMSHRC Page 563
7. The certified copy of the MSHA Assessed Violations History reflects the history of the 

citation issuances at the mines for 15 months prior to the date of the citations at issue and 

may be admitted into evidence without objection by Northern Aggregate. 

Joint Exhibit 1; Tr. 12.1

Northern Aggregate operates portable sand and gravel mines owned by Rick Schulke and 

his two sons Eric and Kyle. Tr. 13, 425. Northern Aggregate uses two portable crushing plants 

which change operational locations and close during the winter months, typically from 

December through March. Tr. 13-15, 283. They employ cone crushers, which rotate and funnel 

large rocks down against the walls of the cone exerting pressure on the rocks thereby breaking 

them into small marketable sizes. Tr. 19, 378-79. The violations charged in these dockets arose 

out of inspections conducted in September and October 2013 by MSHA Inspectors Stephen Dale 

Cotie, Wilbert Koskiniemi, and Thaddeus J. Sichmeller.2

III. LEGAL PRINCIPLES 

A. Gravity/Significant & Substantial (S&S) Designation

An S&S violation is a violation aof such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.b 30 U.S.C. § 814(d). A 

violation is properly designated S&S aif, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.b Cement Div., Nat.l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Company, the Commission set forth the following four-part test to 

determine whether a violation is properly designated S&S: 

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 j that is, a measure of danger to safety j contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

 1

 In this decision, the abbreviation aTr.b refers to the transcript of the hearing. The 

Secretarygs exhibits are numbered S-1 through S-14 and the Respondentgs exhibits are numbered 

R-1 through R-4. 

2

 Cotie is an industrial hygienist with a Mastergs Degree of Science in public health and 

industrial hygiene and toxicology. He has worked in this field for three decades, spending the 

last ten or eleven years as a health specialist and general inspector for MSHA. Tr. 16. 

Koskiniemi has been an MSHA inspector since 2013. Before that, he worked as a police officer 

and court security officer for many years and ran an excavating company from 2004 to 2008. Tr. 

65-67. Sichmeller has about 20 years of experience in the mining industry, including about 7 

years of work as a millwright performing mechanical work relating to the milling process. He 

has worked as an MSHA inspector since 2003. Tr. 156-57.

37 FMSHRC Page 564
and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec.y of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation 

Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). The inspectorgs judgment is also 

an important element of an S&S determination. Wolf Run Mining Co., 36 FMSHRC 1951, 1959 

(Aug. 2014); Mathies, 6 FMSHRC at 5. The S&S determination must be based on the particular 

facts surrounding the violation at issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 

1995); see, e.g., Wolf Run, 36 FMSHRC at 1957-59 (remanding S&S finding for further 

consideration of relevant circumstances). 

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. This element is established only if the Secretary proves aa reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury.b U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). Evaluation of the reasonable likelihood of 

injury should be made assuming acontinued normal mining operations,b U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made ain 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.b Black Beauty Coal Co., 34 FMSHRC 1733, 

1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989).

The S&S nature of a violation and the gravity of the violation are not synonymous. 

Gravity, generally expressed as the degree of seriousness, is an element that must be assessed for 

every violation, while an S&S determination is made only in the context of enhanced 

enforcement under section 104(d) of the Mine Act. The gravity assessment and a finding of S&S 

are frequently based upon the same or similar factual circumstances, Quinland Coals, Inc., 9 

FMSHRC 1614, 1622 n.11 (Sept. 1987), but the focus of the inquiries differs. The Commission 

has pointed out that the focus of the gravity inquiry ais not necessarily on the reasonable 

likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the 

hazard if it occurs.b Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996); see also 

Harlan Cumberland Coal Co., 12 FMSHRC 134, 140-41 (Jan. 1990) (ALJ) (explaining that 

notwithstanding likelihood of injury, some violations are serious in the context of the standard 

violated and the Mine Actgs deterrent purposes j for example, violations of an important safety 

standard; violations demonstrating recidivism or defiance on the operatorgs part; or violations 

that can combine with other conditions to set the stage for disaster). 

B. Negligence/Unwarrantable Failure

Negligence is conduct that falls below the standard of care established under the Mine 

Act. Under the Mine Act, an operator is held to a high standard of care and is required to be on 

the alert for conditions and practices that may cause injuries and to take necessary precautions to 

prevent or correct them. 30 C.F.R. § 10.0(d). High negligence is defined as having occurred in 

connection with a violation when a[t]he operator knew or should have known of the violative 

condition or practice, and there were no mitigating circumstances.b Id. § 100.3, Table X. 

37 FMSHRC Page 565
 More serious consequences can be imposed under the Mine Act for violations that result 

from the operatorgs unwarrantable failure to comply with mandatory health or safety standards. 

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 

814(d), and refers to more serious conduct by an operator in connection with a violation. The 

Commission has determined that unwarrantable failure is aggravated conduct constituting more 

than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987). 

Unwarrantable failure is characterized by such conduct as areckless disregard,b aintentional 

misconduct,b aindifference,b or a aserious lack of reasonable care.b Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 136 (7th Cir. 1995). 

Whether conduct is aaggravatedb 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 or 

mitigating circumstances exist. These factors often include (1) the extent of the violative 

condition, (2) the length of time the violative condition existed, (3) whether the violation posed a 

high degree of danger, (4) whether the violation was obvious, (5) the operatorgs knowledge of 

the existence of the violation, (6) the operatorgs efforts in abating the violative condition, and (7) 

whether the operator had been placed on notice that greater efforts were necessary for 

compliance. Wolf Run Mining Co., 35 FMSHRC 3512, 3520 (Dec. 2013); see Lopke Quarries, 

Inc., 23 FMSHRC 705, 711 (July 2011). Because supervisors are held to a high standard of care, 

another important factor supporting an unwarrantable failure determination is the involvement of 

a supervisor in the violation. Lopke Quarries, 23 FMSHRC at 711. 

The factors listed above must be viewed in the context of the factual circumstances of a 

particular violation, and it is not necessary to find that all factors are relevant or deserving of 

equal weight in order to determine that the violation is unwarrantable. Wolf Run, 35 FMSHRC at 

3520-21; E. Associated Coal Corp., 32 FMSHRC 1189, 1193 (Oct. 2010); IO Coal Co., 31 

FMSHRC 1346, 1351 (Dec. 2009). However, all factors that are relevant should be considered. 

San Juan Coal Co., 29 FMSHRC 125, 129 (Mar. 2007). 

C. Acceptable Means of Service of Violations 

Northern argues that all thirteen of the violations at issue here should be vacated because 

the Secretary has failed to present proof they were actually served upon the operator. Resp.gs Br. 

at 1. Northern also contends that because the Secretary did not serve violations properly, the 

operator lacked knowledge of prior violation 8672801 contained in Exhibit S-5g, which was the 

basis for the Secretarygs unwarrantable failure designation for Citation Number 8740698. Id. at 

10-11; Ex. S-5. 

 Of the thirteen violations at issue in this docket, twelve were personally served on the 

operator at the time of issuance: Inspector Sichmeller personally served violations 8740827, 

8740828, 8740829, 8740830, 8740835, and 8740836 to Foreman Alan Speck during the 

September 4, 2013 inspection of the Portable Crusher, and Inspector Koskiniemi personally 

served violations 8740705, 8740695, 8740696, 8740698, 8740699, and 8740701 to Eric Schulke 

during the October 31, 2013 inspection of Plant 3 and Plant 5. Tr. 105-07, 224-25. Northerngs 

witnesses confirmed it is typical for MSHA inspectors to discuss violations with a company 

37 FMSHRC Page 566
representative during the inspection and provide a copy of the violation on the spot. Tr. 279, 374-

75, 424. This constitutes adequate service. 

The remaining violation at issue in this docket, Citation Number 8672802, was issued 

verbally by Inspector Cotie at Plant 5 on October 22, 2013 and a hard copy was later sent by 

certified mail to Northerngs address of record on file with MSHA. Tr. 29, 33. The prior violation 

that the operator denies knowing about, Citation Number 8672801, was issued in the same 

manner by Cotie on September 12, 2013. Tr. 42-43. The inspectorgs testimony that the citations 

were mailed to Northerngs address of record is credible and I find that they were in fact mailed. 

This is adequate service under the Mine Act. Section 104(a) of the Mine Act does not require 

personal service of violations. 30 U.S.C. § 814(a). Section 109 specifies only that violations 

ashall be deliveredb to the mine office and requires operators to maintain an up-to-date address 

on file with MSHA for this purpose. Id. § 819; see also 30 C.F.R. Part 41 (placing burden on 

mine operator to ensure address is correct). The MSHA Citation and Order Writing Handbook 

does not mandate that the operator be given a written violation at the time it is observed but 

requires the inspector to tell the operator about the violation and discuss the circumstances. 

Citation & Order Writing Handbook, Ch. 7 § II, available at http://www.

msha.gov/READROOM/HANDBOOK/PH13-I-1.pdf. Consistent with these guidelines, Cotie 

discussed each citation with a company representative during the inspection before mailing the 

written copies to the office. Tr. 29, 42. Cotiegs actions were appropriate and sufficient to effect 

service and notice. 

IV. FINDINGS OF FACT AND ANALYSIS 

1. Citation No. 8672802/Docket No. LAKE 2014-2173

This section 104(d)(1) citation was issued on October 22, 2013 by Inspector Cotie at 

Plant 5 and alleged a violation of 30 C.F.R. § 56.20011. This mandatory standard requires that 

a[a]reas where health or safety hazards exist that are not immediately obvious to employees shall 

be barricaded, or warning signs shall be posted at all approaches.b Signs are required to be 

visible, legible, and display the type of hazard present and any necessary protective action 

required. 30 C.F.R. § 56.20011. 

The citation is predicated upon Cotiegs observation of rocks being ejected into the 

workplace from the Norberg cone crusher absent the appropriate warning signs or barricades, 

which had been removed from all approaches. Ex. S-1; see Ex. S-1a; Photographs S-1b, c, d. The 

citation documents that the operator had been informed of the hazard on a previous occasion but 

had continued to conduct business without properly correcting the situation. Ex. S-1. 

Cotie evaluated the violation as S&S with high negligence, highly likely to cause a 

permanently disabling injury affecting one person, and an unwarrantable failure. Ex. S-1. The 

Secretary has proposed a penalty of $6,458.00. 

 3

 The dockets and violations were not presented at trial in numerical order. They will be 

addressed herein in the order in which they were presented at trial. 

37 FMSHRC Page 567
Prior to the issuance of this citation, Cotie had issued two other citations for the same 

hazardous condition. On September 11, 2013, Cotie had issued Citation Number 61907954 at 

Plant 5 when he observed rocks being ejected from the Norberg cone crusher. Ex. S-1e; see Exs. 

S-1f, g. A barricade had been erected only on the north side of the crusher. The rocks in the 

debris field were sufficiently large, in Cotiegs opinion, to cause significant injuries to a miner 

entering the area whether or not he was wearing hard hat. Tr. 19-21. Upon making this 

observation, Cotie spoke with the operator about some options that would eliminate the danger, 

such as erecting a screen above the crusher or, as a less expensive option, using old conveyor 

belting material to act as a barrier. Tr. 21-24. Cotie returned 14 days later to check on the 

operatorgs progress in building the suggested barrier and extended the citation. Ex. S-1e. 

However, when Cotie returned on November 25, 2013 to terminate the citation, the barrier had 

not been constructed and the crusher had been moved from the mine site. Tr. 25; Ex. S-1e.

On September 12, 2013 Cotie issued the second prior violation, Citation Number 

6190800,5 for rocks flying from a cone crusher at a different operation (Plant 3) at the same pit. 

At this operation, Northern had erected a barricade on only one side of the crusher. Mining 

operations were moved before the condition was rectified and the citation was terminated on 

September 23, 2013 for this reason. However, Cotie had discussed the violation with the lead 

man who was present when the citation was issued; also, the citation states that the operator must 

comply with the cited standard and the condition must be corrected prior to resuming crushing 

activities, otherwise MSHA will consider continued activity to be aaggravated conduct 

constituting more than ordinary negligence.b Ex. S-6g, h, i; Tr. 35-38. 

The Violation

When Cotie returned to the mine on October 22, 2013 on a follow-up inspection, he saw 

the crusher back in operation. Tr. 27, 29. It was still ejecting rocks of significant size to distances 

of up to 25 feet, but this time there were no barriers on any of the approaches, no warning signs 

or berms, and the operator had not heeded MSHAgs warning to remedy the situation before 

resuming operations. Tr. 27-28; Ex. S-1a. In Cotiegs opinion, the situation had in fact 

deteriorated from the last time he cited the crusher because now there was nothing at all 

restricting access to the hazard zone and the crusher was in a more active part of the work site, 

increasing the chances that miners would be exposed to flying rocks. Tr. 27-28. Due to this 

increased danger and Northerngs failure to take any corrective action since the September 

citations were issued, Cotie issued this enhanced unwarrantable failure citation for failure to 

erect barricades and signage to warn of a hazard that was not immediately obvious to miners. Ex. 

S-1; Tr. 30-31. 

Northern argues that the hazardous condition was immediately obvious and therefore 

does not fit within the meaning of the standard at 30 C.F.R. § 56.20011. However, the condition 

did not become obvious until a miner was close enough to be struck by the ejecting rocks. 

Depending upon which direction a miner approached, his view of the danger could be blocked by 

 4

 MSHAgs Mine Date Retrieval site shows this citation was not contested and payment of 

the $2,106.00 penalty is delinquent. See http://www.msha.gov/drs/drshome.htm. 

5

 This citation has been paid and is closed. 

37 FMSHRC Page 568
equipment, the crusher, or other objects in the area until it was too late. Also, the crusher was not 

necessarily ejecting rocks constantly. There were likely lulls in which a miner could approach 

and be very close to the crusher before it spewed rocks once again without barricades or signs 

warning employees not to draw near.

I find this violation has been established. 

S&S/Gravity

The violation was assessed as S&S because Northerngs failure to erect barricades or 

signage allowed unrestricted access to the crusher, which was spewing rocks large enough to 

cause serious head injuries to a miner whether or not he was wearing a hard hat and safety 

glasses. Tr. 32. At the time the violation was observed, there were tire tracks in the area as well 

as a small Bobcat in the trajectory path, showing that miners accessed the area around the 

crusher where the rocks were being thrown. See Exs. S-1b, S-1c. 

The foregoing evidence establishes that this violation of a mandatory safety standard 

contributed to the discrete safety hazard that a miner would be struck in the head or other parts of 

the body by flying rock. Northerngs failure to take any remedial action before putting the crusher 

back into production despite having been issued two prior citations for the same hazard shows 

that the hazardous condition would have continued to exist under continued normal mining 

operations. This, along with the Bobcat, tire tracks, and other evidence that miners routinely 

accessed the debris field, is sufficient to establish a reasonable likelihood that the hazard 

contributed to by this violation would result in injury if normal mining operations were to 

continue. Due to the size and weight of the rocks, any injury resulting from this violation would 

be very serious, if not fatal, in nature. This violation is properly assessed as S&S. 

The gravity of this violation is very serious in that it exposed any miner within a 

substantially large radius of the ejecting rock to a potentially fatal injury. 

Negligence/Unwarrantable Failure

 Inspector Cotie testified he issued this citation as an enhanced 104(d)(1) citation (i.e., an 

unwarrantable failure to comply with a safety standard) because he had spent time discussing the 

situation with management in the past and believed the operator was aware of the hazard but had 

taken no action to address it. Tr. 30-31. 

Operatorgs Knowledge of Existence of Violation 

 The operator knew that this violation existed long before the citation was issued. 

Inspector Cotie had issued two citations six weeks earlier on September 11 and 12, 2013 for the 

same hazard j rocks being ejected from cone crushers at the pit without safety barriers. Exs. S1e, S-6g. Cotie had discussed the situation at length in person with company representatives. Tr. 

21-24, 37-38. Eric Schulke, the overseer of the pit, was personally aware of the situation. See Tr. 

373-74, 384-87, 403-13. 

37 FMSHRC Page 569
Operatorgs Notice that Greater Efforts at Compliance Were Necessary

 The two prior citations and the discussions with Cotie sent a clear message to Northern 

that it needed to address the hazard identified in the citations, thereby placing Northern on notice 

that greater efforts at compliance with the Mine Act were necessary. After Northern moved its 

operations without addressing the hazard, it was notified by MSHA on September 23, 2013 that 

failure to correct the hazard before resuming mining activities would be considered aggravated 

conduct constituting more than ordinary negligence. See Ex. S-6g. This specific warning from 

MSHA provided the operator with further notice of the need for greater compliance efforts. 

Operatorgs Abatement Efforts

The abatement effort factor measures an operatorgs response to violative conditions that it 

knew or should have known about before the citation was issued. Enlow Fork Mining Co., 19 

FMSHRC 5, 17 (Jan. 1997). Both the abatement efforts undertaken, and the level of priority the 

operator has placed on abating conditions for which it received notice that greater compliance 

efforts were necessary, should be considered. IO Coal Co., 31 FMSHRC 1346, 1356 (Dec. 

2009). It must then be determined whether the operatorgs efforts awere taken with sufficient care 

under the circumstances, even if ultimately unsuccessful in completely preventing a violative 

condition.b Windsor Coal Co., 21 FMSHRC 997, 1005 n.9 (Sept. 1999). 

Cotiegs conversations with the operator about the two prior citations had included 

discussion of various options for addressing the hazard. Tr. 22-23, 385, 406. Yet despite the two 

prior citations, the pointed conversations with Cotie, and the warning that failure to correct the 

hazard before resuming mining activities would result in enhanced penalties, the Plant 5 crusher 

was operational once again on October 22, 2013 without any corrective action having been 

taken. In fact, the berm that had been erected on the north side of the crusher was no longer 

present, leaving no barriers to prevent access to the debris field around the crusher. Tr. 27-28. 

The situation had deteriorated. I find that Northerngs failure to take any abatement action despite 

full knowledge of the need to do so is a significant aggravating factor in this case. 

Extensiveness of Violation & Degree of Danger Posed

The degree of danger posed by Northerngs failure to prevent access to the area around the 

crusher was very high. Rocks the size of cantaloupes were being flung from the crusher up to 25 

feet outward into an area trafficked by miners on foot and in small equipment such as the Bobcat 

seen in the photograph in Exhibit S-1b. This placed miners at risk of serious, if not fatal, injuries. 

This condition was extensive in that its scope and magnitude, including the size of the 

rocks and the large area affected, put any miner within a 25-foot radius of the crusher in danger 

of potentially fatal injuries. 

Obviousness & Duration of Violation

The violative condition, while not immediately obvious to all miners, was obvious to 

management. The inspectorgs photographs depict an unmistakable debris field that extends into 

37 FMSHRC Page 570
areas traversed by miners, clearly indicating the presence of a hazardous condition. See Exs. S1b, S-1c, S-1d. 

This condition had existed at least since the previous citation was issued at Plant 5 on 

September 11, 2013. Most likely the condition dated back to April 2013 when Northerngs season 

had begun, as the minegs entire purpose is to crush rock for sale and there is no reason to believe 

Northerngs mode of operating had changed since the season started. I find this condition was of 

substantial duration and was patently obvious. 

Conclusions

The factors discussed above establish unwarrantable failure, particularly the operatorgs 

knowledge of the violation; the fact that the operator was on notice of the need for greater 

compliance efforts; the high degree of danger posed by the violation; and the operatorgs failure to 

abate the condition despite the foregoing three factors. Eric Schulke admitted that after having 

received two prior citations for the same hazardous condition, he chose to simply continue 

operating the crusher without fixing the problem. Tr. 409-10. This shows a disregard for safety 

amounting to more than ordinary negligence. I find that this violation was an unwarrantable 

failure to comply with a mandatory safety standard. 

High negligence is appropriate because the operator knew of this violation and there are 

no mitigating circumstances. 

2. Citation No. 8740705/Docket No. LAKE 2014-180

This 104(a) citation was issued by Inspector Koskiniemi on October 31, 2013 at Plant 5 

for a violation of 30 C.F.R. § 56.16006, which requires that a[v]alves on compressed gas 

cylinders shall be protected by covers when being transported or stored, and by a safe location 

when the cylinders are in use.b The narrative portion of this citation indicates that Inspector 

Koskiniemi found oxygen and acetylene cylinders by the control trailer with regulators, torch 

heads, and hoses attached without the protective caps on the valves. Ex. S-2; see Photographs S2b. He did not know when the cylinders had last been used, but he determined they were not in 

use at the time he saw them because the hoses were coiled and the torch head was resting on the 

regulator. Tr. 114-15. He assessed the violation as non-S&S and unlikely to cause an injury, with 

low negligence and potential to cause a fatal injury affecting one person. Ex. S-2. The Secretary 

seeks a penalty of $176.00. 

The Violation

The cylinders were secured to a stable cart on a platform where there was little likelihood 

they would be hit and damaged, and the company representative told Koskiniemi he had merely 

forgotten to put the caps on the valves. Tr. 69-70, 112-15; Ex. S-2a. Koskiniemigs concern was 

that the valves could be broken off the cylinders while they were being stored without the 

protective caps on them. The cylinders, which held pressurized gas, would then become 

projectiles that exposed any miner within their path to a fatal injury. The pressure behind a 

37 FMSHRC Page 571
launched cylinder, in Koskiniemigs opinion, would be sufficiently forceful to penetrate a brick 

wall. Tr. 68-69. 

Northerngs position is that the valves did not need to be capped because the cylinders 

were not being stored, as they were being used intermittently throughout the day of the 

inspection. Resp.gs Br. at 4-5; Tr. 399-403, 418-20. In FMC Corporation, the Commission 

discussed the meaning of the term astorageb within the context of a safety standard that regulated 

storage of blasting agents and found that the term was sufficiently broad to include both shortterm and long-term storage. 6 FMSHRC 1566 (July 1984). Several ALJ cases since then have 

relied on FMC Corporation to conclude that compressed gas cylinders were being temporarily 

stored within the meaning of § 56.16006 under various circumstances. See Woodring Co., 16 

FMSHRC 1716 (Aug. 1994) (ALJ) (finding that cylinders were stored, not in use, when operator 

had used them briefly earlier in the day then placed them in truck with no indication of 

immediate need or intention to reuse them); Martin Marietta Aggregates, 11 FMSHRC 633 

(Apr. 1989) (ALJ) (finding that cylinders were atemporarily stored,b despite being readily 

available for use with gauges and hoses attached, because there was no evidence suggesting 

when they were last used or would next be used); Phelps Dodge Corp., 6 FMSHRC 1930, 1937 

(Aug. 1984) (ALJ) (finding that cylinders were being stored temporarily or semi-permanently 

when evidence suggested they had been left in a walkway without being used since at least the 

prior shift). 

I find that the cylinders were being stored and were not in use at the time of the 

inspection. Because the valves were not capped, a violation of § 56.16006 occurred. 

Gravity & Negligence

Low negligence is appropriate here, as there are sufficient mitigating circumstances: the 

tanks were secured to a stable cart, they were in an out-of-the-way location where there was little 

likelihood they would be hit or damaged, and the company representative stated that he had 

simply forgotten to put the caps on. 

This violation is non-S&S and the gravity is low in that an injury was unlikely to occur 

because the tanks were unlikely to be hit or damaged. 

3. Citation No. 8740695/Docket No. LAKE 2014-183

This 104(a) citation written by Inspector Koskiniemi on October 31, 2013 at Plant 3 

charges a violation of 30 C.F.R. § 56.11027. The cited mandatory standard requires, in relevant 

part, that working platforms abe of substantial construction and provided with handrails and 

maintained in good condition.b The citation alleges that the railing on an elevated work platform 

above the jaw crusher had come out of its pocket. This allowed the railing to swing open, 

creating a 16-inch gap directly over the jaw crusher hopper into which a miner could fall and 

suffer a fatal injury. Ex. S-3; Tr. 72; see Ex. S-3b. Koskiniemi assessed the violation as S&S, 

reasonably likely to result in a fatal injury to one miner, and the result of low negligence. Ex. S3. The Secretary proposes a penalty of $117.00. 

37 FMSHRC Page 572
The Violation

The platform above the jaw crusher is about ten feet off the ground. Ex. S-3a. Miners 

access the platform to observe the crusher, check clogs, and perform routine maintenance on the 

crusher. Tr. 73-74. The jaw crushergs function is to take the large rocks as they are dug out of the 

pit and break them down into sizes that can be further broken down by the cone crushers. Tr. 72. 

It was the inspectorgs opinion that the vibration attendant to the operation of the crusher caused 

the railing on the crushergs top work platform to pop out of place. Tr. 73, 116. 

The operator established on cross-examination that the platform was of substantial 

construction and that the railing had been in place at the time the required shift examination had 

been performed. Tr. 116-17. The railing is removable and no one was on the platform at the time 

of the inspection. Tr. 117-18, 395-96, 416. However, § 56.11027 is a strict liability standard, and 

the duty to maintain working platforms includes keeping the railings apopped intob the pockets 

to ensure the platform can be used safely. See Ames Constr., Inc., 33 FMSHRC 1607, 1611 (July 

2011) (noting Mine Act imposes liability for violation of mandatory health and safety standards 

awithout regard to faultb), aff.d, 676 F.3d 1109 (D.C. Cir. 2012). The platform was available for 

use at the time it was cited and it provided access to work areas. I find that a violation occurred. 

S&S/Gravity 

The inspector testified he assessed this violation as S&S because miners were required to 

access the platform to perform maintenance of the jaw crusher and other duties. He also stated he 

was aware of prior fatalities from miners falling into jaw crushers. Tr. 73-74. 

A violation of a mandatory safety standard occurred in that the handrail was not in place, 

satisfying the first Mathies element. Miners were required to access the platform for maintenance 

and other tasks, which could have exposed them to a fall hazard when the handrail was in the 

condition the inspector observed. Thus, this violation contributed to the discrete safety hazard of 

a miner falling from the platform, satisfying the second Mathies element. 

However, the Secretary has not established a reasonable likelihood the hazard contributed 

to would have resulted in injury even assuming continued normal mining operations. The 

handrail had been in place when the platform was last examined and could have popped out at 

any time due to the normal vibration and shaking of the crusher. Tr. 73, 116-20. It was not 

physically damaged. Its condition was patently obvious and easily fixed. There is no evidence 

anyone accessed the platform while the railing was out of place, and plant operator Eric Schulke 

credibly testified that this condition would have been fixed immediately as soon as it was 

noticed. Tr. 396. Thus, no miners were exposed to the hazard while it existed, and if normal 

mining operations had continued there is no evidence to suggest that the operator would not have 

shut down the crusher and safely put the railing back into place before the platform was accessed 

for any purpose that would have exposed a miner to danger. For this reason, I find this violation 

was not S&S.

I accept the inspectorgs testimony that falling onto the jaw crusher could cause a fatal 

injury. Even if the jaw crusher were not operational, a fall from the platformgs 10-foot elevation 

37 FMSHRC Page 573
onto equipment or the ground could cause a serious or fatal injury. I find the gravity of this 

violation to be reasonably serious in that it could have resulted in a fatal injury to a miner. 

Negligence

This violation was properly assessed as low negligence as there is no evidence to 

establish that the operator knew of the violative condition before Koskiniemi discovered it and it 

had existed for a short period of time. 

4. Citation No. 8740696/Docket No. LAKE 2014-183

Inspector Koskiniemi issued this 104(a) citation on October 31, 2013 at Plant 3 for a 

violation of 30 C.F.R. § 56.12004. The cited mandatory standard requires in relevant part that 

electrical conductors exposed to mechanical damage be protected. The narrative section of the 

citation states: 

The energized 480 volt cable for the Pioneer jaw crusher was pulled out of the 

fitting under the electrical panel on the west side of the JCI dual screener. About 

1-1 1⁄2 inches of the inner conductors were exposed to mechanical damage. The 

insulating covers on the inner conductors appeared to be in good condition. This 

condition exposes persons to shock/burn hazards of 480 volts with resulting 

injuries. 

Ex. S-4. The violation was assessed as non-S&S, unlikely to result in injury, with low negligence 

and potential to cause a fatal injury. Ex. S-4. The Secretary seeks a penalty of $100.00. 

The inspector was told that the cited cable energizes the jaw crusher. Tr. 76-77. As 

depicted in Ex. S-4b, the outer insulating cable had pulled down and out of the fitting at the 

bottom of the electrical panel, leaving the inner conductors exposed to the elements and 

potentially to mechanical damage. Tr. 77. The individual inner cables each have insulating 

jackets, which were undamaged. Tr. 78, 124, 336. The area where the exposed portion of the 

cable was located is rarely if ever accessed and the condition was not easily seen, forming the 

basis of the inspectorgs non-S&S and low negligence assessments. Tr. 78-79, 121-23. 

While the Secretary established that the inner conductors were exposed, there is no 

evidence the exposed portion of the cable was subject to mechanical damage, as the exposed part 

was not in contact with other equipment and was located below the electrical panel in an area 

that was not accessed by miners or exposed to the weather. The violation is VACATED. 

5. Citation No. 8740698/Docket No. LAKE 2014-430

This section 104(d)(1) citation was written on October 31, 2013 by Inspector Koskiniemi 

for another violation of 30 C.F.R. § 56.11027 at Plant 3. The lengthy Condition or Practice 

section of the citation reads: 

The railings on the elevated work platform on the south end of the JCI dual 

screener 6203 were broken in numerous places creating a fall hazard of about 6-7 

37 FMSHRC Page 574
feet to the ground or 3-4 feet onto the tail end of a transfer conveyor with 

resulting injuries. All four of the railing uprights on the south end were broken at 

the base, one upright on the west side was broken at the base, two uprights on the 

east railing was broken on the south end so that it would give way under pressure. 

The condition was cited two times prior to this. The last citation, #8672801, was 

terminated due to moving and the operator was informed that they were required 

to repair the railings prior to working at another mine site. The operator has 

engaged in aggravated conduct constituting more than ordinary negligence. This 

violation is an unwarrantable failure to comply with a mandatory standard. 

Ex. S-5. 

This violation was assessed as reasonably likely to result in a fatal accident affecting one 

miner, S&S, and the result of high negligence in addition to the unwarrantable failure 

designation. Ex. S-5. The Secretary proposes a civil penalty in the amount of $2,700.00. 

About six weeks earlier on September 12, 2013, Inspector Cotie had cited the same 

screener platform for a violation of the same safety standard. Ex. S-5g (Citation No. 8672801).6

The function of the screener is to shake materials back and forth to separate them by size. Tr. 39. 

Cotie testified that miners need to access the elevated work platform at the end of the screener to 

perform maintenance activities and remove materials such as large rocks from the screen. Tr. 41-

42, 47. He cited the screener platform for a violation because five of the seven upright supports 

for the platformgs handrail were broken and the remaining two were severely damaged to the 

point that he doubted they could support a persongs weight, creating a fall hazard for miners 

accessing the elevated platform. Tr. 38-41; Exs. S-5g, S-5h, S-5i. Cotie testified he discussed the 

violation with the lead man who was running the screener and mailed a hard copy of the citation 

paperwork to Northerngs office by certified mail. Tr. 42-43. 

The Violation 

On October 31, 2013, Inspector Koskiniemi again observed that numerous vertical 

uprights to the railing on the dual screener platform were broken, substantially compromising the 

integrity of the railing. Tr. 80. He was aware that Cotie had issued a citation for several of the 

same uprights being broken about six weeks earlier. Tr. 81-82. He identified in photographs S5c, S-5d, and S-5e the specific parts of the damaged railing that Cotie had cited in September 

that were still damaged on October 31, 2013. Tr. 83-84. The Secretary presented Exhibits S-5g, 

S-5h, and S-5i from the September 12, 2013 inspection conducted by Cotie. Exhibit S-5g is 

Cotiegs written citation, which states that the operator had been cited during the previous 

inspection (in September 2012) for the same violation, and the condition had deteriorated since 

then. Cotie terminated the citation on September 23, 2013 because Northern had moved its 

mining operations to a different location without correcting the cited condition. Ex. S-5g; Tr. 60-

61. The citation contains a warning that the operator must comply with the cited standard before 

resuming activities at another mine, and failure to do so will be considered aggravated conduct 

constituting more than ordinary negligence. Ex. S-5g. Exhibit S-5i contains various photographs 

of the damaged railing as it existed on September 12, 2013. It is apparent from the photographs 

 6

 MSHAgs Mine Data Retrieval System shows this violation has been paid and closed. 

37 FMSHRC Page 575
that the damage cited by Cotie corresponds with the damage cited by Koskiniemi on October 31, 

2013, depicted in Exhibits S-5c through S-5e. 

Koskiniemi said the cited platform was located above a transfer conveyor that was fed by 

a hopper that in turn was fed by the output conveyer exiting the screener. Tr. 85; Photograph Ex. 

S-5f. The platform was six or seven feet above the ground. Tr. 85; Ex. S-5. Koskiniemi described 

the breaks on the railing as rusted, indicating they were not fresh. Tr. 130, 154. The inspector 

stated that Eric Schulke was agitated when confronted with this violation but did not deny that he 

knew of the condition. Tr. 88-90, 127, 129. Schulke testified that he was unaware of the prior 

citation and was not aware of the poor condition of the railing. Tr. 414-15. However, Foreman 

Sam Goeden, who accompanied Koskiniemi during the October 31 inspection,7 acknowledged 

that the railing supports had been broken for some time. Tr. 129-30. 

I find the evidence supports a violation of the mandatory standard. 

S&S 

Because miners performed maintenance on this platform elevated six or seven feet above 

the ground and above moving conveyors and tail pulleys, the broken railings exposed them to a 

potentially fatal fall. Tr. 86-87. The inspector had personal knowledge of a fall from a lesser 

height resulting in a fatality. Tr. 87, 132. For these reasons, he determined the condition was 

S&S and reasonably likely to cause a fatal injury. 

Northern argues that this violation is not S&S for the same reasons Citation Number 

8740695 was not S&S, specifically in that the platform was not frequently accessed and would 

not be prior to being repaired. I find a significant distinction between the two violations, 

however. In the prior situation, a railing had popped out of its pocket sometime after the 

previous examination had been done. The evidence established that this could occur at any time 

from vibrations created by the machinery. The railing needed no repair. Here, the welds had 

broken and the rails were rusted and damaged. It is clear from Cotiegs citation and the 

photographs taken by Koskiniemi that this condition had existed for a significant period of time 

and required more substantial welding and repair work to make safe. The operator failed to make 

these repairs despite being warned of the repercussions and had no intentions of doing so, as 

evidenced by the fact that they put the platform back in service without repairing it. Thus, it is 

clear to me that in the course of continued normal operations it was reasonably likely that this 

continuing violation contributed to a discrete safety hazard that was reasonably likely to result in 

an injury-causing event. A miner could lose his footing or lean against the railings, which would 

give way under pressure, resulting in a fall either onto dangerous moving equipment or to the 

ground below. Such a fall would be reasonably likely to result in very serious, if not fatal, 

injuries. This violation is S&S. 

 7 See Tr. 87, 92, 129, 145 (Koskiniemigs testimony identifying Sam Goeden as the plant 

operator who accompanied him during the October 31, 2013 inspection); Tr. 417 (Eric Schulkegs 

testimony confirming Goeden is a foreman at the plant). I do not credit Eric Schulkegs remark 

that he adoubt[ed] that [Goeden] was there the whole time or all of the timeb with Koskiniemi 

during the inspection. Tr. 417. 

37 FMSHRC Page 576
The gravity of this violation is very serious in that it exposed at least one miner to a fatal 

injury.

Negligence/Unwarrantable Failure 

Inspector Koskiniemi testified he characterized this violation as a section 104(d)(1) 

unwarrantable failure with high negligence because the mine owners were aware of the hazard 

and had been cited for it a month and a half before but had not repaired it. Tr. 86. 

Operatorgs Notice of Need for Greater Compliance Efforts

& Operatorgs Knowledge of Violative Condition

As discussed above, Cotie had issued prior citation 8672801 for the same violative 

condition just six weeks earlier on September 12, 2013. In fact, Cotie noted that the platform had 

been cited for the same condition during the last inspection and the condition had since 

worsened, giving rise to his subsequent warning to repair the railing before resuming operations 

at any location. Exs. S-5g, S-5h. The two prior citations and Cotiegs warning served to place 

Northern on notice that greater efforts at compliance with the cited standard were necessary. 

Northern denies it had knowledge of the prior citation issued by Cotie or the condition of 

the railing. Resp.gs Br. at 10-12; see Tr. 388-95, 413-15. However, Cotie credibly testified he had 

discussed the violation with a company representative at the time he cited it and Koskiniemi and 

Cotie both testified that the citation had been sent by certified mail to Northerngs address on file 

with MSHA. Tr. 42-43, 126-27. As discussed above, this was proper service. 

Moreover, the breaks in the handrail supports were old and rusted and the photographs 

clearly show these were the same breaks observed by Cotie six weeks earlier. Tr. 130, 154; 

compare Exs. S-5c, S-5d, S-5e with photos in Ex. S-5i. The damage was obvious and had existed 

long enough that it should have been discovered during shift examinations. Indeed, the foreman 

accompanying Koskiniemi during the October 31 inspection acknowledged the damage had 

existed for a long time. Tr. 129-30. I conclude that the operator knew of this violation. 

Operatorgs Efforts in Abating the Violation

Northern was aware of the violation and the need for greater compliance efforts due to 

the prior similar citations. Koskiniemi had returned to the mine on October 31, 2013 because he 

had received a commencement of operations filed by Northern indicating they had resumed 

operations at this location. Tr. 128. Yet the violative condition persisted with the operatorgs full 

knowledge of the situation. Tr. 129-30. In fact, when Koskiniemi issued the citation he was 

confronted by Eric Schulke, who accused Koskiniemi of trying to put him out of business. Tr. 

88. Schulke then informed the inspector that he intended to fire up the plant in 30 minutes 

whether the railings were repaired or not because he had production to meet. Tr. 89. When he 

was told that a closure order would be issued in that event, he replied that regardless of the 

closure order, he was not going to shut down production. Tr. 89-90. Eventually, he calmed down 

and repaired the railing. Tr. 90. 

37 FMSHRC Page 577
Schulkegs behavior evidences Northerngs intentional failure to abate the hazardous 

condition. I find this to be a significant aggravating factor. 

Obviousness, Extensiveness, Dangerousness, and Duration of Violation

 As evidenced by the inspectorgs photographs, this violation was obvious in that the 

damage to the railing would have been easy to see during a shift examination. See Tr. 145-46; 

Exs. S-5b to S-5e. The violation was extensive in that the majority of the uprights supporting the 

handrail were broken all the way through at the base, defeating the purpose of having a railing. 

See Ex. S-5. This violation posed a high degree of danger because it placed miners at risk of a 

potentially fatal fall from the elevated platform onto equipment or the ground below if they 

leaned on the defective railing. The evidence suggests that this dangerous violation had existed 

for a lengthy duration because it had been cited during the two previous inspections and the 

fractured pieces of the railing were rusted, showing that these clearly were not fresh breaks. 

Conclusions

Based upon the two prior violations issued for the same condition, the operatorgs failure 

to abate the September 12, 2013 citation issued by Cotie, the further deterioration and extensive 

damage to the railings, the obviousness of the violation, the operatorgs knowledge of the 

condition both when Cotie cited it and when Koskiniemi cited it again on October 31, 2013, the 

length of time the condition had existed, the threat by Eric Schulke to operate the plant without 

repairing the railing, and the extremely dangerous hazard and serious result likely to occur 

therefrom, I find that the operator exhibited an extreme and reckless, if not intentional, disregard 

for the safety of its miners. This was an unwarrantable failure to comply with the mandatory 

standard. The operator also displayed high negligence. 

6. Order No. 8740699/Docket No. LAKE 2014-216

Issued on October 31, 2013 by Inspector Koskiniemi, this section 104(d)(1) order alleges 

another incidence of rocks being ejected from a Norberg cone crusher, this time at Plant 3, 

without barricades, warning signs, or any devices that would provide protection against flying 

rocks. The order alleges a violation of the mandatory standard at 30 C.F.R. § 56.14110, which 

states: aIn areas where flying or falling materials generated from the operation of screens, 

crusher, or conveyors present a hazard, guards, shield, or other devices that provide protection 

against such flying or falling materials shall be provided to protect persons.b 

The order describes the affected area as the main travelway between the crusher trailer 

and the control/generator trailer, which is a location frequented by miners on foot. The violation 

is written as an unwarrantable failure, referring back to Citation Number 6190800 (Ex. S-6g), a 

104(a) citation written by Cotie on September 12, 2013 for failure to erect barricades at the Plant 

3 crusher. It is also assessed as reasonably likely to result in a fatal injury affecting one miner 

and S&S with high negligence. Ex. S-6. The Secretary has proposed a penalty of $2,000.00. 

37 FMSHRC Page 578
The Violation

Koskiniemi testified that as he was walking towards one of the conveyors, he heard aa lot 

of noise, racketing, shaking vibrating by the cone crusher.b Tr. 90. Apparently, a piece of steel 

had fallen into the crusher, and as he approached the area, he suddenly noticed dozens of rocks 

up to eight inches in size astrewn everywhereb and being ejected from the crusher without 

warning. Tr. 91. His photographs illustrate the size and quantity of rocks being ejected from the 

crusher and the debris field. See Exs. S-6b to S-6f. The rocks had fallen around the electrical 

panel, which is accessed by miners in order to start up and shut off the equipment. Tr. 95; see Ex. 

S-6e. The stairway to the control trailer, which is frequently accessed for storage purposes and to 

control the plant, was also within the debris field. Tr. 99, 138. 

Foreman Sam Goeden was operating the crusher the day of the inspection. He made a 

comment to Koskiniemi about walking into the area of the rock shower, at which point 

Koskiniemi told him there should be some sort of warning or barricade. Tr. 91-92, 139-40. 

According to the order documentation, Goeden was aware that Northern had previously been 

cited for this hazard. Ex. S-6a. 

The Respondent argues that although it is impossible to entirely eliminate ejection of 

rocks from the cone crusher, there were signs on the crusher itself warning of falling rocks and 

employees knew to stay out of the area. Resp.gs Br. at 14-15. As Koskiniemi testified, however, 

the signs on the crusher were not readily observable from all directions and were not obvious 

enough to keep him out of the area. Tr. 136, 147; see Exs. R-2, R-3. There were employees onsite and rocks were being ejected some 15 to 20 feet outward right up to the control trailer, the 

electrical panel, and other regularly accessed sites. Ex. S-6a; Tr. 151-53. Section 56.14110 

requires protection from such flying or falling materials. The regulatory language is much 

stronger than merely advising that employees must be aware of the danger: the regulation 

requires actual protection against the danger by use of a guard, shield, or other device. 30 C.F.R. 

§ 56.14110. Barricades and warning signs at the perimeter of the debris field would have 

accomplished this protection, but were not provided. This violation has been established. 

S&S/Gravity 

The violation was assessed as S&S because the cone crusher was ejecting dozens of rocks 

large enough to cause serious injuries 15 to 20 feet outward into a well-traveled area. Ex. S-6a; 

Tr. 91, 99. This contributed to the discrete safety hazard that miners would be struck in the head 

or other parts of the body by flying rock. 

Northern had been issued three prior citations for this same hazard yet had failed to take 

any remedial action before putting the Plant 3 cone crusher back into operation in an area that 

was frequently accessed. Exs. S-1, S-1e, S-6g. This shows that the hazard would have continued 

to exist if normal mining operations had continued. The electrical panel that employees used to 

start and stop the equipment and the stairway to the control trailer were both within the crushergs 

debris field, establishing a likelihood that miners would walk through the debris field during 

normal mining operations. Tr. 95, 99; see Ex. S-6e. Because the debris field was a frequently 

accessed area and the operator displayed no intent to correct the hazard, I find that the hazard 

37 FMSHRC Page 579
contributed to by this violation was reasonably likely to result in injury during continued normal 

mining operations. 

The rocks being ejected from the cone crusher were up to 8 inches in diameter. Ex. S-6a. 

Koskiniemi testified that hard hats would have been insufficient to prevent serious injury in the 

event of being struck by one of these large rocks. Tr. 99. I find that the evidence establishes a 

reasonable likelihood that any injury caused by this violation would be very serious, if not fatal. 

This violation is S&S. 

The gravity of this violation is very serious in that it exposed any miner within a 

substantially large radius of the cone crusher to a potentially fatal injury. 

Negligence/Unwarrantable Failure 

 Inspector Koskiniemi testified he issued this order under section 104(d)(1) because the 

operator had been cited previously for the same condition and was aware of the hazard, yet once 

again he had observed rock strewn everywhere without the operator taking any action to address 

the problem. Tr. 97-98. 

Operatorgs Knowledge of Existence of Violation 

 The operator knew of this violation. Inspector Cotie had previously issued citations to the 

operator on September 11, September 12, and October 22, 2013 for the same hazard. Exs. S-1e 

(Citation No. 6190795), S-6g (Citation No. 6190800); S-1 (Citation No. 8672802). Cotie had 

discussed each of the prior citations with company representatives at the time of issuance. Tr. 21-

24, 37-38, 54-56. Eric Schulke, the overseer of the pit, was personally aware that ejection of 

rocks from the cone crushers was a problem. See Tr. 373-74, 384-87, 403-13. The plant operator, 

Sam Goeden, was also aware of the problem. Ex. S-6a. 

Operatorgs Notice that Greater Efforts at Compliance Were Necessary

 The three prior similar citations and Cotiegs discussions with company representatives 

placed Northern on notice that greater efforts at compliance were necessary. The most recent 

prior similar citation, Citation Number 8672802, had been issued just a week earlier and assessed 

as a 104(d)(1) unwarrantable failure to comply with a mandatory safety standard. Ex. S-1. 

Although that citation had been issued under a different mandatory standard, the hazard was the 

same, and the unwarrantable failure designation should have served as a strong warning to the 

operator that greater compliance efforts were needed. In addition, Northern had been specifically 

notified on September 23, 2013 at the time Cotie terminated Citation Number 6190800 that 

failure to correct the hazard in the future would be considered aggravated conduct constituting 

more than ordinary negligence. See Ex. S-6g. 

37 FMSHRC Page 580
Duration of Violation & Operatorgs Abatement Efforts

This violation had existed at least since Citation Number 6190800 was issued at Plant 3 

on September 12, 2013. Most likely the condition dated back to April 2013 when Northerngs 

operating season began, as there is no indication that this was an unusual condition at the mine or 

that it had arisen suddenly. 

Despite the three prior citations, MSHAgs specific warnings to correct the hazardous 

condition, and the operatorgs full knowledge of the situation, Northern took no action to abate the 

condition from the time it was first cited in September until this violation was issued six weeks 

later. I find that the operatorgs failure to abate the violation for six weeks showed a blatant 

disregard for safety. 

Obviousness, Extensiveness, and Degree of Danger Posed

This violation was very obvious. Dozens of rocks up to eight inches in size were astrewn 

everywhereb in the vicinity of the crusher. Tr. 91. The photographs the inspector took show 

airborne rocks being flung from the crusher and large rocks piled on top of energized electric 

cables and in the main travelway next to the electrical control panel. Exs. S-6b, S-6d, S-6e, S-6f. 

The danger was clear and the violation was occurring in plain sight of the crusher operator, 

Foreman Goeden. 

This violation also posed a high degree of danger. The crusher was throwing large, heavy 

rocks 15 to 20 feet outward into areas frequently traversed by miners, including the main 

travelway and the area where the electrical panel and control trailer were located. See Tr. 95, 99, 

138, 151-53; Exs. S-6a, S-6d, S-6e. This placed miners at risk of very serious or fatal injuries 

regardless of whether they were wearing safety gear. 

This condition was extensive in that its scope and magnitude, including the size of the 

rocks and the large area affected, put any miner within a substantial radius of the crusher in 

danger of potentially fatal injuries from flying rock. 

Conclusions

Considering the operatorgs knowledge of this violation, the three prior citations and the 

specific warnings from Cotie that failure to correct the condition would constitute aggravated 

conduct, the obviousness of the violative condition, the high degree of danger it posed within an 

extensive and frequently traveled area of the mine, and the fact that the violation had existed for 

more than six weeks without being abated, this violation was an unwarrantable failure. 

Because the operator knew of this violation and there are no mitigating factors, the 

operator also demonstrated high negligence. 

7. Citation No. 8740701/Docket No. LAKE 2014-183

Koskiniemi issued this 104(a) citation during his October 31, 2013 inspection at Plant 3 

for another alleged incidence of damage to an electrical cable under 30 C.F.R. § 56.12004. 

37 FMSHRC Page 581
Koskiniemi observed that the outer covering of the 480-volt cable to the Kolberg Superstacker 

conveyor was cut in two places, exposing the inner conductors to mechanical damage. The inner 

conductors were in good condition. The damaged areas were approximately nine feet above the 

ground. Koskiniemi assessed the violation as unlikely to result in a permanently disabling injury 

to one miner, non-S&S, and the result of low negligence. Ex. S-7. The Secretary proposes a 

penalty of $100.00. 

The Violation

The damaged cable runs from the electrical panel to the conveyor, which moves crushed 

rock to the stockpiles. Tr. 101. The inspector surmised that the damage was caused by the cable 

rubbing on steel or being pinched. Tr. 102; see Ex. S-7d (photograph depicting metal equipment 

near cable). The area where the damage occurred is not easily accessed. Tr. 104. 

The Respondent argues that § 56.12004 was not violated because the damaged portions 

of the cable were not subject to mechanical damage. Resp.gs Br. at 16-17. However, the very fact 

that the cablegs outer jacket was damaged j in this case, apparently by rubbing or pinching j 

gives rise to an inference that the exposed interior of the cable will be subject to the same 

damage if the condition is not corrected. See Carmeuse Lime & Stone, 33 FMSHRC 1654, 1661-

63 (July 2011) (ALJ); Sangravl Co., 33 FMSHRC 1242 (May 2011) (ALJ). As explained by the 

inspector, the damage to the outer jacket meant that the cablegs inner insulation was aout in the 

harsh elementsb exposed to mechanical damage through contact with rocks, dirt, water, and 

pinch points and sharp edges on the metal equipment nearby.8 Tr. 110-11, 141-43. Accordingly, I 

reject Northerngs argument that the cable was not subject to mechanical damage. 

Respondentgs witness, Master Electrician Dean Prestby,9 opined that the damaged cable 

was adequately protected and posed no risk to humans because the inner insulation was intact. 

Tr. 340-42. However, damage to an electrical cablegs outer cover gives rise to the discrete safety 

hazard of an electric shock in the event that the exposed inner insulation is damaged by the same 

work conditions that damaged the outer cover. Thus, the conductors are not adequately protected 

when the outer cover is damaged, which constitutes a violation of § 56.12004 due to the strict 

 8

 Northern argues I should adopt a definition of amechanical damageb that includes only 

adamage to electrical conductors as part of a machinegs operative function . . . or from being 

exposed to operating machines.b Resp.gs Br. at 8. However, the language of the mandatory safety 

standards is intended to be interpreted broadly and the Secretary and Commission have never 

adopted such a narrow definition of mechanical damage. See, e.g., Northern Illinois Serv. Co., 36 

FMSHRC 2811, 2819 (Nov. 2014) (ALJ) (finding that athe effects of weathering and/or frictionb 

can constitute mechanical damage); Northwest Aggregates, 20 FMSHRC 518, 526 (May 1998) 

(ALJ) (finding that a cable was subject to mechanical damage when moisture and dirt could enter 

it). The Secretarygs interpretation of a mandatory safety standard is entitled to deference where 

reasonable, Auer v. Robbins, 519 U.S. 542, 461 (1997), and in this case it is reasonable to 

conclude that the cable was exposed to mechanical damage. 

9

 Prestby testified he is an electrical contractor with 28 years of experience working on 

mining equipment such as crushers and hot mix plants. He is licensed as a Master Electrician in 

Minnesota and North Dakota. Tr. 332-33.

37 FMSHRC Page 582
liability nature of the Mine Act and the mandatory safety standards. See Northshore Mining Co., 

35 FMSHRC 1889, 1893 (June 2013) (ALJ); Concrete Materials, Div. of Sweetman Constr. Co., 

35 FMSHRC 690 (Mar. 2013) (ALJ); Carmeuse Lime & Stone, 33 FMSHRC 1654; Sangravl, 33 

FMSHRC 1242; Carmeuse Lime, Inc., 29 FMSHRC 266 (Mar. 2007) (ALJ); John Cullen Rock 

Crushing & Gravel, 17 FMSHRC 375 (Mar. 1995) (ALJ). Prestby did not know that damage to a 

cablegs outer jacket violates § 56.12004 and generally displayed a lack of familiarity with 

MSHAgs safety regulations. See Tr. 356-58. For example, he said he would not cut the power to 

make an electrical repair to a cable if there were no bare wires showing, but this would be a 

violation of MSHAgs lock out/tag out requirements. Tr. 360-61. Prestby was also very reluctant 

to admit on cross-examination that a cablegs inner wires are less protected when the outer cover 

is missing, and suggested that rather than repairing a damaged cable jacket or providing another 

layer of insulation, his preferred method for preventing contact with the inner wires was simply 

to avoid touching them. Tr. 359-61. This testimony detracts from his credibility and indicates to 

me that regardless of his electrical background, he is far more willing to take short cuts and 

expose persons to danger than the Mine Act contemplates. For these reasons, I discredit his 

opinion that the cablegs inner conductors were adequately protected. 

I find that this violation has been established. 

Gravity & Negligence

This violation is non-S&S and unlikely to cause injury because the damaged portion of 

the cable was not easily accessed by miners and the inner conductors were in good shape. Tr. 

104. Low negligence is appropriate because the damage to the cable was not easily seen due to 

its location approximately nine feet above the ground. Tr. 105. 

8. Citation No. 8740827/Docket No. LAKE 2014-111

Inspector Sichmeller issued this 104(a) citation on September 4, 2013 for a violation of 

30 C.F.R. § 56.12004 at the Portable Crusher. In this instance, the outer protective jacket of the 

480-volt power cord supplying power to the superior power stacker was cut in four places. The 

cuts ranged from one to two inches in length and exposed the inner conductors, which were 

found to be discolored from exposure to dirt and moisture. Ex. S-8. 

 This violation was assessed as S&S, reasonably likely to cause a fatal injury affecting one 

miner, and the result of moderate negligence. The violation was terminated on September 11, 

2013 because the mine had closed without being inspected for compliance. A warning was 

included in the termination paperwork placing the operator on notice that the hazard must be 

corrected before putting the cable back into use to avoid an unwarrantable failure violation. Ex. 

S-8. The Secretary has proposed a $1,944.00 penalty. 

The Violation

Foreman Alan Speck told Sichmeller that this was a 480-volt cable. Tr. 161. It ran from 

the generator down the conveyor frames and connected to a number of pieces of equipment. Tr. 

164. It had been used earlier in the day. Tr. 161. The largest of the cuts the inspector observed in 

the cablegs outer jacket was a half inch or more in width and two inches long. Tr. 159-60; see Ex. 

37 FMSHRC Page 583
S-8c. He could not determine if the inner conductors were damaged or not because there was so 

much dirt packed inside the cable. Tr. 159. 

The Respondent again argues that it did not violate § 56.12004 because the cable was not 

exposed to mechanical damage and was adequately protected in that its inner insulation and 

conductors were intact. Resp.gs Br. at 17-18. I reject these arguments for the reasons discussed 

above in connection with Citation Number 8740701. The cited cable was subject to mechanical 

damage in that the same conditions that had damaged the outer jacket could also damage the 

inner insulation, exposing miners to an electric shock hazard due to the exposure of the inner 

conductors. In fact, there is evidence the inner parts of the cable had already incurred mechanical 

damage, as the insulation was discolored and encrusted with mud and dirt and some of the inner 

conductors were visible. Tr. 251-53. The inspector could not even tell whether the conductors 

were intact. Tr. 159. Although Prestby testified that the cable was adequately protected and 

posed no shock hazard, he did not observe it in situ and apparently failed to consider the 

evidence that the cablegs interior was already damaged. Tr. 358. For the reasons noted above, his 

opinion is further discredited because his views on safety do not comport with the protective 

purpose of the Mine Act and regulations. 

I find that the cablegs inner conductors were not adequately protected from mechanical 

damage. This violation has been established. 

S&S/Gravity 

Sichmeller assessed this violation as S&S because, unlike the situation cited by 

Koskiniemi, the condition of the inner conductors could not be determined because they were 

covered with dirt and moisture. It was apparent, however, that there was discoloration, indicating 

that deterioration had already set in. Tr. 162, 251-52. Also considered was the location of the 

cable. Because the cable connected conveyors and other pieces of equipment, it crossed over 

frames and other aexposure points,b making mechanical damage likely. Tr. 163. The final 

consideration was that the electrical power system to which the cable was attached was 

improperly grounded at the time of the inspection. Had a miner made contact with the damaged 

cable while it was connected to the improperly grounded system, the miner could have become 

the ground fault, leading to electrocution. Tr. 163-64, 275-76. The inspector believed that the 

injury reasonably likely to occur would be a fatality, based upon his knowledge of the mining 

industry. Tr. 164. 

I find that this violation contributed to the discrete safety hazard that a miner would come 

into contact with the cablegs inner wires. This hazard was reasonably likely to result in injury 

during continued normal mining operations based on the cablegs location, which was subject to 

both continued mechanical damage and human contact; the fact that the cablegs inner insulation 

was already damaged, exposing some of the inner wires; the improper grounding of the electrical 

system to which the cable was attached; and the voltage carried by the cable. These factors 

establish a reasonable likelihood of human contact with a bare conductor and resultant electrical 

shock. I reject Prestbygs contrary testimony that the cable posed no shock hazard because he did 

not observe the wires himself, and moreover he appears not to have accounted for the preexisting 

damage to the cablegs inner insulation that had already exposed the inner wires, which by his 

37 FMSHRC Page 584
own testimony would have presented a shock hazard. See Tr. 358-59. This was a 480-volt cable 

capable of producing an electrical shock that would cause very serious or even fatal injuries. 

Because this violation contributed to a discrete safety hazard that was reasonably likely to result 

in serious injury with continued normal mining operations, the violation is S&S. 

The gravity of this violation is serious in that it posed a risk of serious injury or death due 

to electrical shock. 

Negligence

Moderate negligence is appropriate because the four damaged sections of the cable were 

relatively large, were visible from the main travelway alongside the conveyors, and should have 

been discovered during a workplace examination. Tr. 165. 

9. Order No. 8740828/Docket No. LAKE 2014-11010

This section 104(d)(2) order was written on September 4, 2013 by Inspector Sichmeller 

for a violation of 30 C.F.R. § 56.12025 at the Portable Crusher. The cited mandatory standard 

states in pertinent part: aAll metal enclosing or encasing electrical circuits shall be grounded or 

provided with equivalent protection.b 30 C.F.R. § 56.12025. The narrative section of the citation 

reads as follows: 

There was not ground provided for on site (sic) Generator trailer and the ground rod 

provided for the job trailer was pulled and sitting in the Job trailer. This did not ensure 

proper grounding of the electrical equipment and exposed personnel to the electrical 

hazards. Reportedly by the on site (sic) foreman he had pulled the ground for the job 

trailer and had never reinstalled prior to putting the plant back in operation today, and 

that he was never provided anything for grounding the Main generator trailer and the 

trailer has been on site since he arrived and moved to this location in 8-13-2013. The 

company was cited for this violation on the past regular safety inspection. The company 

has engaged in aggravated conduct constituting more then (sic) ordinary negligence by 

not ensuring that proper grounding of equipment is being conducted or providing proper 

grounding equipment to be installed at the site. This violation is a (sic) unwarrantable 

failure to comply with a mandatory standard. 

Ex. S-9. 

10 Initially issued as a 104(d)(1) citation, this violation was amended to a 104(d)(2) order 

after Sichmeller reviewed the mine file and realized the mine was on the d-chain. Tr. 166. The dchain refers the Mine Actgs graduated enforcement scheme promulgated in section 104(d). Once 

a section 104(d)(1) order has been issued, subsequent similar violations at the same mine must be 

issued as 104(d)(2) orders until such time as an inspection of the mine discloses no similar 

violations. 30 U.S.C. § 814(d)(2); see Lodestar Energy, Inc., 25 FMSHRC 343, 345 (July 2003). 

During the most recent previous inspection of the Portable Crusher slightly less than a year 

earlier on September 25, 2012, the operator had been issued a 104(d)(1) citation (No. 8665360) 

and two 104(d)(1) orders (Nos. 8665362 and 8665263), one of which was issued for a grounding 

violation. See Ex. S-14; Ex. S-9e. Sichmellergs amendment of the type of issuance was based on 

these prior violations. 

37 FMSHRC Page 585
The violation was assessed as reasonably likely to result in a fatal injury to one miner, 

S&S, and the result of high negligence. The citation states that the cited standard was violated on 

one prior occasion at the mine within the preceding two years. Ex. S-9. The Secretary proposes a 

penalty of $7,176.00 for this violation. 

The Violation

Secretary.s Evidence 

As Sichmeller was conducting his inspection, his attention was drawn to the main 

generator trailer, the metal trailer housing the electrical system that powers all the plant 

equipment, by a sign posted on the trailer stating that it must be grounded. Tr. 167, 172; see Ex. 

S-9b. Electrical grounding is the process of connecting an electrical circuit to the ground to make 

the earth part of the circuit. 30 C.F.R. § 56.2. This can be accomplished through various means, 

such as a ground plate or a rod driven into the ground and wired to the electrical system. Tr. 170. 

Sichmeller saw there were no ground plates or rods at Northerngs generator trailer and it 

was not in direct contact with the ground because it was sitting on tires and wooden blocks. Tr. 

167-68; see Ex. S-9c. He discussed the situation with Foreman Alan Speck. The generator trailer 

had recently been moved to the site on August 13, 2013. Tr. 168. Speck had spoken with Kyle 

Schulke about grounding the generator trailer but nothing was ever brought to the site to provide 

grounding. Tr. 176; Ex. S-9a. Sichmeller observed a ground rod hanging in a different trailer, the 

job trailer, but the rod was not in use. See Ex. S-9d. Speck said the rod had previously been used 

to ground the job trailer but was pulled before Labor Day weekend to avoid vandalism and was 

never reinstalled. Tr. 176-77. 

Northern had been issued a 104(d)(1) order by Inspector John Koivisto approximately 

one year earlier on September 25, 2012 under similar circumstances. In that instance, the 

inspector found the ground rod inside the generator trailer. The inspector determined that the 

foreman on duty had engaged in aggravated conduct constituting more than ordinary negligence 

in that the foreman was aware the trailer needed to be grounded but simply had not taken the 

time to install the ground rod. Ex. S-9e.11

Respondent.s Evidence 

 

Kyle Schulke testified based on his experience working at the mine and conversations 

with electricians that ground rods are useful only for guarding against lightning strikes. Tr. 288, 

322, 331. He believed that all the equipment at the plant was tied together in a single system or 

circuit and that grounding at any point in the system was sufficient to protect all of the linked 

components. Tr. 288-89, 293, 316, 327. At first he testified the system was grounded by means 

of a panel lying on the ground with all the wires running to it. Tr. 288-89, 293. He later said that 

the ground rod at the job trailer provided grounding for the entire system. Tr. 314. Subsequently 

he stated that even though the ground rod at the job trailer had been pulled over Labor Day 

weekend and not replaced, the entire system was still grounded by virtue of the interlinked plant 

 11 The Mine Data Retrieval System indicates this order, Order No. 8665362, was paid 

without contest and is closed. 

37 FMSHRC Page 586
equipment that was in contact with the ground. Tr. 317-18. He also stated without explanation 

that the generator itself was ainternallyb grounded. Tr. 292-93. 

Master Electrician Prestby testified ground rods serve no purpose and have no effect on 

electrical systems. Tr. 347, 370-71. He prepared a report stating that a ground rod has anothing to 

do with personal safetyb because it cannot clear a ground fault, since it does not provide a path 

back to the power source to trip the circuit breaker and thereby disconnect the electrical current. 

Ex. R-1. On cross-examination, however, he conceded that the generator trailer needed to be 

provided with some method of grounding and that MSHA prefers use of a grounding electrode 

such as a plate or rod. Tr. 364-65. 

Analysis 

The cited generator is the source of electrical power to the entire plant. Electricity tends 

to run back to the source in the case of a short circuit, making the fault to ground at the generator 

very important. Tr. 182. Power would run back to the generator if a short circuit were to occur, 

and anyone coming into contact with the metal generator trailer would suffer a shock because no 

grounding electrode was provided and the trailer was on wooden blocks and rubber tires, 

meaning the metal frame was not in contact with the ground to serve as an alternate means of 

protection. Also significant is the fact that during the inspection, power cables running from the 

generator to the conveyors and other electrical equipment were found to be deteriorated, posing 

an additional shock hazard. 

It appears from the two almost identical grounding violations issued during two 

consecutive inspections that Northern is extremely lax in its adherence to the mandatory 

grounding standard. See Exs. S-9, S-9e. Northern offered testimony that the entire electrical 

system at the mine was grounded, but I find this testimony to be not credible and manufactured 

after the fact. Kyle Schulke is not an electrician and has no formal training in this discipline, and 

his testimony was inconsistent and unconvincing. Tr. 286-87. Prestbygs testimony was evasive 

but ultimately he grudgingly conceded on cross-examination that the generator trailer should 

have been grounded.12 Tr. 286-87, 364-65. The evidence does not demonstrate that there was a 

ground on the minegs electrical system at any point. Furthermore, the generator as the source of 

the power was the most important component to be grounded. This violation is established. 

 12 Prestbygs testimony on this point exemplifies the evasiveness and reluctance to admit 

obvious facts that detract greatly from his credibility: 

 Q: Okay. Do you agree that the generator trailer needed to be grounded? 

A: The generator needed to have an equipment grounding conductor. Grounded as 

far as connected to the earth, or cords, or what? 

 Q: Igm asking in general. 

 A: Thatgs a loose term, grounding is a loose term. 

 Q: So it needed to have some kind of grounding, correct, regardless of it was earth 

 grounding or wire grounding? 

 A: Wire grounding, yes. 

 Q: It needed to have some kind of grounding? 

 A: Yes. 

Tr. 363-64.

37 FMSHRC Page 587
S&S/Gravity 

The inspector assessed this violation as S&S. He testified based upon his training and 

knowledge of mining industry fatalities that improper grounding is reasonably likely to result in 

fatal electrocutions. Tr. 186. 

There is sufficient evidence to conclude this violation contributed to the discrete safety 

hazard of the generator not being properly grounded, which could result in a potentially fatal 

electrical shock if a miner were to inadvertently become a ground fault. Because there was a 

violation of a mandatory safety standard which contributed to a discrete safety hazard and any 

injury resulting from the hazard would likely be serious, the first, second, and fourth Mathies 

elements are satisfied. 

However, there is no evidence of the likelihood a ground fault would occur or the 

likelihood a miner would come into contact with any source of electrical shock resulting from 

the failure to ground the generator trailer. The Secretary presented no evidence as to where the 

generator trailer was located, who accessed the area, whether access had occurred while the 

trailer was ungrounded, and when or how often access would be expected to occur during 

continued normal mining operations. The Secretary also did not present evidence of any factors 

or conditions, such as wet conditions around the trailer, that would have increased the likelihood 

of a ground fault or other dangerous electrical event occurring. There is also no evidence as to 

how often or why someone would contact one of the damaged cables that the inspector cited as 

making this violation more serious. Because the Secretary has not established a reasonable 

likelihood of human contact or a ground fault, he has not established a reasonable likelihood the 

hazard this violation contributed to would result in an injury-causing event during continued 

normal mining operations. For this reason, the evidence does not establish this violation is S&S. 

Although the violation is not S&S, its gravity is serious by virtue of its contribution to the 

discrete safety hazard of a potentially fatal electrocution accident. 

Negligence/Unwarrantable Failure 

The inspector believed that high negligence was appropriate here because the operator 

had previously received a 104(d)(1) citation from Koivisto for the same hazard and because 

Foreman Speck had discussed the need for grounding with Kyle Schulke, yet nothing had been 

done to ground the trailer. Tr. 187. The same considerations led the inspector to issue this 

violation as a 104(d)(2) unwarrantable failure order. Tr. 188. The inspectorgs testimony does not 

address the unwarrantable failure factors, but the Secretary argues in his closing brief that the 

unwarrantable failure designation is appropriate because of the additional electrical violations 

issued the same day, the prior similar citation issued by Koivisto a year earlier, the conversation 

between Speck and Schulke, and the fact that the electrical system had not been properly 

grounded since the operator moved to the site on August 13, 2014. Br. of Secgy at 17. 

37 FMSHRC Page 588
Operatorgs Notice that Greater Efforts at Compliance Were Necessary

 Inspector Koivisto had cited the mine for the same violation during the previous annual 

inspection on September 25, 2012. That violation was issued to a different foreman, Jeff 

Johnson, who had promptly abated the condition by reinstalling the ground rods, which had been 

pulled and sitting in the generator trailer at the time of the inspection. Ex. S-6e. Kyle Schulke 

testified he was not familiar with the prior violation. Tr. 319. 

The Secretarygs reliance on the prior similar violation as a factor supporting 

unwarrantable failure implies that the violation placed the operator on notice that greater efforts 

at compliance with § 56.12025 were necessary. However, a single prior violation does not serve 

to place the operator on notice of an ongoing serious problem at its mine. Also, because the prior 

violation was easily abated by a different foreman and promptly terminated without the 

involvement of any other company representatives, I credit Schulkegs testimony that he was not 

aware of the prior violation and I find that the violation likely did not engender in the operator a 

heightened awareness of the need for greater compliance efforts. 

Duration of Violation

 This violation existed at least from the time the generator trailer was moved to the site on 

August 13, 2013 to the time the inspector noticed it on September 4, 2013. The inspector 

confirmed through his conversation with Foreman Speck and his review of continuity and 

ground resistance testing records that the generator trailer had not been grounded the entire time 

it was on-site. Tr. 175-76. Thus, this violation lasted at least three weeks. 

Operatorgs Knowledge of Existence of Violation

& Abatement Efforts 

 Foreman Speck told the inspector he had discussed the need for grounding with Kyle 

Schulke when the generator trailer was moved to the site, yet no form of grounding had been 

provided. Tr. 176; Ex. S-9a. Schulke said he believed the entire electrical system at the site was 

grounded through alternative means, but his explanation of how the system was grounded was 

not persuasive. Additionally, Prestby, who set up the system, admitted that the trailer needed to 

be grounded. Tr. 363-64. I do not credit mine management with a good faith belief that the 

generator trailer was in compliance with the requirements of § 56.12025, which clearly required 

the trailer itself to be grounded. The operator knew of this violation. 

 Although the operator knew of this violation, no abatement efforts were undertaken 

during the three weeks the violation existed. 

Obviousness, Extensiveness, and Degree of Danger Posed

 The Secretary has not presented evidence that this condition was obvious, extensive, or 

posed a high degree of danger to miners. There is no evidence as to where the generator trailer 

was located, who accessed it, how often, or why, making it impossible to determine whether the 

violative condition was readily visible and to whom; whether it would have been obvious during 

37 FMSHRC Page 589
a shift examination; whether it affected an extensive area or number of people; or whether there 

was a likelihood of human access that would increase the danger posed by the violation. There is 

also no evidence of the likelihood that a dangerous electrical event such as a ground fault would 

occur, which hinders my ability to assess the degree of danger posed. However, there is evidence 

that the violation was not extensive in that the only measure required to abate it was to reinstall 

the ground rod at the generator trailer. 

Conclusions

On balance, I find that this violation is not an unwarrantable failure. Although the 

operator knew of this violation and failed to take any abatement efforts for the three weeks it 

existed, the evidence does not show that the violation was obvious, extensive, or highly 

dangerous to miners, or that the operator was on notice of an ongoing problem that required 

greater compliance efforts. The operatorgs conduct demonstrated a disinterest in worker safety, 

but the evidence is insufficient to establish that this conduct rose to the level of intentional 

misconduct or a reckless disregard for safety. Accordingly, I find that the Secretary has not 

presented enough evidence to support an unwarrantable failure designation. Because this 

violation is not an unwarrantable failure, the type of action is hereby modified to a section 104(a) 

citation. 

High negligence is appropriate here, as the grounding rod was intentionally pulled out 

and never reinstalled when the generator trailer was moved to this location. The fact that a 

grounding rod was found in the job trailer indicates the operator was well aware of the necessity 

for grounding but was lax in providing such grounding and disinterested in the safety of the 

miners in this respect. 

10. Order No. 8740829/Docket No. LAKE 2014-110

 Sichmeller issued this section 104(d)(2) order13 on September 4, 2013 for another 

electrical violation relating to grounding at the Portable Crusher. This violation was written 

under 30 C.F.R. § 56.12028, which requires continuity and resistance testing of grounding 

systems immediately after installation, repair, or modification and annually thereafter. The safety 

standard also requires the operator to keep a record of the resistance measured during the most 

recent tests that can be made available to the Secretary or his representatives upon request. 30 

C.F.R. § 56.12028. Sichmeller issued this violation after determining that such testing had not 

been conducted at the main generator trailer since its installation at the site on August 13, 2013. 

Testing also had not been conducted on the job trailer when it was placed back in service after its 

grounding system had been modified by pulling the ground rod before Labor Day weekend. Ex. 

S-10. 

This violation was assessed as reasonably likely to result in a fatal injury to one miner, 

S&S, and the result of high negligence. The citation also states the violation is an unwarrantable 

failure and references the fact that the cited standard had been violated on one prior occasion at 

 13 As with violation 8740828, Sichmeller initially wrote this violation as a 104(d)(1) 

order and later modified it to a 104(d)(2) order. 

37 FMSHRC Page 590
the mine within the preceding two years. Ex. S-10. The Secretary proposes a penalty of 

$7,176.00 for this violation. 

The Violation

The circumstances of this violation are similar to those surrounding violation 8740828. 

Sichmeller testified that under the cited mandatory safety standard, continuity and resistance 

testing, which is a means of verifying adequate grounding by measuring aearth resistance to 

groundb in ohms, should have been conducted at the generator trailer when it was installed onsite on August 13, 2013 to ensure it was properly grounded. Tr. 190-92. The operatorgs records 

show the job trailer and various other equipment underwent a continuity test on August 14, 2013, 

but the main generator trailer was not tested. Ex. S-10b; Tr. 320. Kyle Schulke had performed 

the test starting from the ground rod at the job trailer. Tr. 314-15. 

Inspector Sichmeller was puzzled as to why the job trailer was provided with a ground 

rod, which he believed was unnecessary. See Tr. 177-80, 273-74. Nonetheless, because the job 

trailer had a grounding system and that system had been modified when the ground rod was 

pulled before Labor Day weekend, he felt that an additional continuity and resistance test should 

have been conducted on the job trailer when mining operations resumed after Labor Day. Tr. 

192, 196. 

A 104(d)(1) order had been issued by Inspector Koivisto a year earlier for a violation of 

the same safety standard under somewhat different circumstances. In that instance, Koivisto had 

found no records at all that continuity and resistance testing had been performed. The citation 

was terminated after the operator provided documentation that resistance measurements had been 

taken for various equipment at the mine, including the generator. Ex. S-10d. 

Relying on its previously rejected argument that the generator trailer does not need to be 

independently grounded, Northern contends the August 14, 2013 continuity and resistance test 

did not need to include a resistance measurement at the generator. Resp.gs Br. at 21. Prestby also 

suggested that since the generator was the starting point of the circuit, it would have no 

individual resistance and therefore would not need to be tested. Tr. 368. I find no basis for the 

assertion that resistance testing does not need to be conducted at the generator. The mandatory 

safety standard does not provide an exception for the starting point of the circuit. Moreover, as 

the source of power, the generator poses the greatest risk of shock, since power tends to flow 

back to the source in the event of a short circuit. Thus, of all the components of the electrical 

system, it is particularly important to conduct resistance testing on the generator to ensure it is 

safely grounded. The operator conducted such testing to terminate the prior citation written by 

Koivisto and its witnesses testified resistance testing should start at the generator. Tr. 262, 274-

75, 368; Ex. S-10d. Clearly the operator knew the generator should be tested yet failed to do so. 

This violation has been established. 

The operator also failed to perform a continuity and resistance test at the job trailer after 

its grounding system was modified by pulling the ground rod. Presumably the test was not 

performed because the operator had never reinstalled the ground rod. The operator should have 

37 FMSHRC Page 591
reinstalled the ground rod and tested it to make sure it was functioning properly. Because no test 

was conducted, this was also a violation of § 56.12028. 

S&S/Gravity 

The inspector designated this violation S&S. The discrete safety hazard contributed to by 

this violation is the same as that posed by the operatorgs failure to ground the generator trailer. 

Specifically, if adequate continuity and resistance testing is not conducted, the operator has no 

way to detect inadequate grounding, which could result in a serious, potentially fatal electrical 

shock. Accordingly, I find that this violation contributed to a discrete safety hazard and could 

have been expected to cause a reasonably serious or even fatal injury. 

However, the Secretary has presented no evidence that a ground fault or other dangerous 

electrical event was likely to occur and no evidence of the likelihood of human contact if such an 

event were to occur. With respect to the job trailer, the Secretary has not shown that the trailer 

posed a shock hazard. In fact, the inspector suggested that the job trailergs grounding system, 

although subject to the testing requirements of § 56.12028, may not actually be necessary. If the 

job trailer does not need to be grounded, presumably it does not pose a shock hazard at all. With 

respect to the generator trailer, the Secretary has failed to present evidence tending to show the 

trailergs location, the likelihood miners would access that area, or the existence of any conditions 

that would make a ground fault likely. In short, the evidence is insufficient to establish a 

reasonable likelihood the hazard contributed to by this violation would result in an injurycausing event during continued normal mining operations. Because the third Mathies prong is 

not satisfied, I find that this violation is not S&S. 

Although the violation is not S&S, its gravity is serious by virtue of its contribution to the 

discrete safety hazard of a potentially fatal electrocution accident. 

Negligence/Unwarrantable Failure 

The inspector assessed this violation as an unwarrantable failure with high negligence 

because the operator had offered no mitigating circumstances, and because the inspector believed 

the prior similar violation issued by Koivisto on September 25, 2012 had placed the operator on 

notice that it needed to make greater compliance efforts. Tr. 199-200. The Secretary proffers the 

same arguments it offered for violation 8740828 to support the unwarrantable failure 

designation. Br. of Secgy at 17. 

For the same reasons that violation 8740828 was not an unwarrantable failure, I conclude 

that this one is not either. 

Whether the Violation Was Extensive, Obvious, and Posed a High Degree of Danger

The hazard posed by this violation was the same as that posed by violation 8740828 j an 

electrocution hazard stemming from failure to ground the two trailers. The Secretary has 

presented no evidence concerning the location of the cited trailers, who accessed them, how 

often, or why. It is unclear what area was affected and who would have been endangered. There 

37 FMSHRC Page 592
is also no evidence as to whether conditions were wet or dry in the area or whether a ground fault 

was likely to occur, which would have increased the degree of danger if proven. I find that the 

evidence is insufficient to show this hazard was extensive, obvious, or posed a high degree of 

danger to miners. 

Operatorgs Notice that Greater Compliance Efforts Were Necessary 

Although the operator was issued a prior similar violation on September 25, 2012, the 

circumstances of that violation differ significantly from this one. On the prior occasion, the 

operator was cited for failure to conduct any continuity and resistance testing at all when it began 

operations at a new worksite. Ex. S-10d. By contrast, here, the operator produced documentation 

showing it had conducted some testing on August 14, 2013 after setting up operations at a new 

location. Ex. S-10b. However, the testing was deficient in that it did not include the generator 

trailer, and additionally, the operator had failed to conduct a new test when the electrical system 

was modified by pulling the ground rod at the job trailer. The prior violation would not have 

placed the operator on notice that these specific circumstances would necessitate greater 

compliance efforts. 

Operatorgs Knowledge of Existence of Violation

The generator trailer had been included in the continuity and resistance testing performed 

on September 25, 2012 to terminate the prior violation issued by Koivisto. See Ex. S-10e. This 

shows the operator was aware the generator trailer needed to be included in such testing, despite 

its assertions to the contrary. Kyle Schulke had conducted a continuity test on August 14, 2013 

when mining operations began at the new site and knew the generator trailer was not included in 

the test. 

The operator also knew that the ground rod had been pulled at the job trailer and should 

have known that it was violating the mandatory safety standard by not reinstalling the rod and retesting the grounding system at the job trailer. 

Duration of Violation & Operatorgs Abatement Efforts

 This violation began with respect to the generator trailer when the operator failed to 

include it in the initial continuity and resistance testing conducted on August 14, 2013. Thus, the 

violation lasted for three weeks before the inspector cited it. The operator took no efforts to abate 

the violation during this time period. 

 With respect to the job trailer, the violation existed for less than a day. The job trailergs 

grounding system had been modified before the Labor Day holiday, and the system should have 

been re-tested on the day of the inspection when mining operations resumed. 

Conclusions

 The operator should have known of this violation, but there is no evidence the violation 

was extensive, obvious, or posed a high degree of danger. With respect to the job trailer, the 

37 FMSHRC Page 593
duration of the violation was very brief. Although the violation lasted longer with respect to the 

generator trailer, which had not been tested since it was moved to the mine site, the operator had 

conducted some continuity testing when it moved to the site and was not specifically on notice 

from MSHA that greater compliance efforts were necessary. I find that the evidence is not 

sufficient to establish that this violation was an unwarrantable failure. The violation is hereby 

modified to a section 104(a) citation. 

High negligence is appropriate here because the operator was aware of the necessity for 

continuity and resistance testing, as evidenced by its completion of such tests in the past, but 

failed to conduct proper tests. 

11. Citation No. 8740830/Docket No. LAKE 2014-111

Sichmeller issued this 104(a) citation during his September 4, 2013 inspection of the 

Portable Crusher after finding that the rear brake light, turn signal, and tail light on the CAT 

980H front end loader did not function when tested, in violation of 30 C.F.R. § 56.14100(b). He 

cited a collision hazard as a likely result of this condition and assessed the violation as S&S, 

reasonably likely to cause an injury resulting in lost workdays or restricted duty for one miner, 

and the result of moderate negligence. Ex. S-11. The Secretary proposes a penalty of $585.00. 

The cited mandatory safety standard states, aDefects on any equipment, machinery, and 

tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to 

persons.b 30 C.F.R. § 56.14100(b). Whether a defect is corrected in a timely manner depends on 

how long the defect existed and when the operator knew or should have known about it. Lopke 

Quarries, Inc., 23 FMSHRC 705, 715 (July 2001). Where there is no evidence as to when the 

defect arose, the Secretary has not established that it was not corrected in a timely manner. Id. 

Here, the Secretary has presented no evidence as to how long the 980 loadergs rear brake 

light, turn signal, and tail light were defective. The same loader was previously cited for the 

same defect on September 25, 2012. Ex. S-11b. That was almost a year earlier, which is not 

significant for this type of violation. Blown out light bulbs and loose wires on mobile equipment 

are common occurrences that can occur at any given moment without warning. See Tr. 244, 298-

99, 439. Northern also presented evidence that this particular loader is afinickyb and known to 

have wiring issues. Tr. 300, 439. The loader was parked and not in use at the time of the 

inspection and there is no evidence showing when it was last used. Tr. 245. Thus, aside from the 

uncertainty over when the defect arose, it is also uncertain when the operator could or should 

have known about it. 

The Secretary has failed to show the cited defect was not corrected in a timely manner. 

This citation is VACATED. 

12. Citation No. 8740835/Docket No. LAKE 2014-111

During his September 4, 2013 inspection of the Portable Crusher, Sichmeller issued this 

104(a) citation for a violation of the mandatory standard at 30 C.F.R. § 56.14101(a)(2). The 

citation states that the parking brake on the CAT 950G loader would not hold the truck when it 

was tested with a fully loaded bucket on an inclined roadway. Ex. S-12. The cited standard is 

37 FMSHRC Page 594
violated when a parking brake fails to hold equipment when tested on the maximum grade the 

equipment travels while holding its typical load. 30 C.F.R. § 56.14101(a)(2). 

Sichmeller marked the citation as S&S, reasonably likely to result in a fatal accident 

affecting one miner, and the result of moderate negligence. Ex. S-12. The Secretary seeks a 

penalty of $1,944.00. 

The Violation

The cited 950 loader is used to move materials at the mine. When tested on a feed ramp, 

which has less of an incline than the maximum grade at the mine, the 950 loader rolled 

backwards when the park brake was engaged. Tr. 220-21. 

Richard and Kyle Schulke testified that a different loader, the 980, was used to feed the 

crusher in the pit area, whereas the 950 was used strictly to load outgoing trucks on flat land 

away from the pitgs steep inclines. Tr. 301-02, 309-10, 436-37. However, neither of the witnesses 

was regularly onsite. Tr. 282, 285, 441. They did not have firsthand knowledge of how the loader 

was used on a day to day basis. Also, Kyle Schulke stated that the 950 and 980 were used 

interchangeably to load trucks. Tr. 297. As the inspector pointed out, the cited 950 loader is 

capable of being used anywhere at the mine and the common, expected practice in the industry 

would be to use it as a backup if another loader such as the 980 went down. Tr. 235-36. 

I find the Secretary has established a violation. 

S&S

The inspector designated this violation S&S. The Secretary has established an underlying 

violation of a mandatory safety standard that contributed to the discrete safety hazard of 

unexpected movement of the 950 loader when in the parked position, satisfying the first two 

elements of the S&S analysis under Mathies. See Tr. 222. 

However, the Secretary has not established a reasonable likelihood that this hazard would 

result in injury with continued normal mining operations under the particular facts surrounding 

this violation. The inspector provided only two reasons for issuing the citation as reasonably 

likely to cause injury, neither of which is compelling. 

First, the inspector noted that the operator had been cited one year ago for failing to lower 

the bucket on a loader when it was parked. Tr. 222-23; Ex. S-12a. Despite the inspectorgs 

assertion to the contrary, this single prior incidence in no way establishes a apracticeb at the mine 

that would have contributed to the likelihood of an injury-causing event under the circumstances 

of this only tangentially related violation. 

Second, the inspector stated that the safety standard Northern violated is included in 

MSHAgs Rules to Live By, a group of standards for which MSHA provides additional training 

because of their past involvement in mining fatalities. Tr. 223. However, the inclusion of the 

violated standard in the Rules to Live By fails to establish likelihood of injury under the 

37 FMSHRC Page 595
particular facts of this case. These facts include the operatorgs undisputed testimony that the 950 

loader was used primarily for loading stockpiled material onto trucks on flat land. See Tr. 233-

34, 301-02, 309-10, 436-37. Even in the event that the loader were parked on an incline, the 

Secretary did not offer evidence that anyone would be near it to incur injury if it were to slide. 

Because the Secretary has failed to prove a reasonable likelihood that the hazard this 

violation contributed to was reasonably likely to result in injury, I find that this violation is nonS&S. Although it is non-S&S, the violation is reasonably serious in that it contributed to the 

discrete safety hazard of the truck rolling unexpectedly when in the parked position, which could 

have caused a serious or fatal crushing injury. 

Negligence

The inspector assessed this violation as involving moderate negligence, reasoning that the 

operator had been issued another parking brake violation during the same inspection and others 

in the past. Tr. 224; Ex. S-12a. However, the operator did not know of this violation before the 

citation was issued, and the Secretary has presented no evidence as to how long the violation 

existed or when the operator should have discovered it. See Tr. 224, 302; Ex. S-12a. The prior 

similar citations do not establish when the operator had reason to know the parking brake was 

defective on this particular vehicle; this particular defect could have been a recent development. I 

find that low negligence is more appropriate than moderate negligence based on what the 

Secretary has been able to prove. 

13. Citation No. 8740836/Docket No. LAKE 2014-111

Inspector Sichmeller issued this 104(a) citation during his September 4, 2013 inspection 

of the Portable Crusher because the reverse alarm on the Bobcat Skidsteer Model 863 did not 

function when tested. The citation was issued under 30 C.F.R. § 56.14132(a), which requires that 

manually-operated horns or other audible warning devices on mobile equipment be maintained in 

functional condition. The violation is assessed as S&S, reasonably likely to result in a fatal injury 

affecting one miner, and involving moderate negligence. Ex. S-13. The proposed penalty is 

$1,944.00. 

The Violation

Sichmeller testified that this piece of equipment may not have been equipped with a 

backup alarm from the factory, but one had been installed on it. Tr. 231. When tested it did not 

function. The skidsteer is used throughout the mine and was evidently used prior to the 

inspection near the job trailer, as tire tracks were visible there. Tr. 225-26, 231. The skidsteer can 

move as quickly in reverse as in forward motion and is not equipped with side mirrors, resulting 

in an obstructed or limited view when operating in reverse. Tr. 225, 232-33. 

Northern asserts that this machine had a rearview mirror, enabling operation in reverse 

without obstructed views. Resp.gs Br. at 27; see Tr. 306, 440. But rearview mirrors alone are not 

sufficient to provide a panoramic backwards view to the skidsteer operator. They also do not 

provide an audible warning to miners on foot or operating other machinery that the skidsteer is 

about to move in reverse. Section 56.14132(a) requires audible warning devices to be maintained 

37 FMSHRC Page 596
in functional condition regardless of whether or not the operatorgs rearward view is obstructed. 

The presence of a rearview mirror thus has no bearing on whether or not a violation of the cited 

standard occurred. 

Northern also argues the reverse alarm was an aftermarket installation not required by 

MSHA. Resp.gs Br. at 27; see Tr. 304, 439-40. This argument fails. Even if it was not factoryinstalled, the alarm was provided for safety on the machine and was not maintained in functional 

condition, violating the standard. See Tr. 265-66. 

This violation has been established. 

S&S/Gravity

The inspector issued this citation as S&S and reasonably likely to cause a fatality because 

the skidsteer is a very heavy machine capable of causing serious crushing injuries and can be 

used to move materials and clean up throughout the mine, including areas where other miners are 

working on foot. Tr. 227. 

The skidsteer operates in congested spaces, as confirmed by Kyle Schulke, who testified 

it is used several times per day to clean underneath the conveyors. Tr. 303. He and Richard 

Schulke stated that miners are trained not to stand behind it, and therefore would not be at risk of 

being struck by the skidsteer. Tr. 304, 440. However, if training alone were sufficient to protect 

miners, the mandatory safety standards would all be superfluous. Miners do not always do what 

is most prudent, which is why operators are charged with a higher degree of care to protect the 

health and safety of the miners. Absent a reverse alarm, a miner would not necessarily know that 

the skidsteer was about to travel in reverse and that he was too close to it. The violation therefore 

contributed to the discrete safety hazard that a miner would be run over after failing to realize the 

skidsteer was about to travel backward. Such an injury-causing event was reasonably likely to 

occur during continued normal mining operations based upon the frequency with which the 

skidsteer was used every day, the congested location where it was operated, and the fact that as 

many as four miners would be working around it while in operation. See Tr. 230. The injuries 

expected to occur from being struck by this piece of heavy machinery, which would include 

broken bones and fatal crushing injuries, would be very serious in nature. I find that the Mathies 

criteria are met and this violation is S&S. 

The gravity of this violation is serious due to the very serious nature of the injuries 

expected to result from the violation and the fact that there are often as many as four miners 

working in and around the skidsteer while it is operating. 

Negligence

Because the skidsteer was operated frequently and therefore should have been examined 

frequently, and because it had just been used prior to this inspection, the operator should have 

known the reverse alarm was not working. See Tr. 231, 303. A mitigating factor is that the 

condition could have been a fairly recent development, considering that the Secretary presented 

no evidence of how long it had existed. I find that moderate negligence is appropriate. 

37 FMSHRC Page 597
V. PENALTIES 

Legal Principles

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

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

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

the Commission, in determining penalty amounts, shall consider: 

The operatorgs history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operatorgs ability to continue in business, the gravity 

of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

 The Commission and its ALJs are not bound by the penalties proposed by the Secretary 

nor are they governed by MSHAgs Part 100 regulations, although substantial deviations from the 

proposed penalties must be explained using the section 110(i) criteria. See Sellersburg Stone Co.,

5 FMSHRC 287, 293 (Mar. 1983). In addition to considering the 110(i) criteria, the judge must 

provide a sufficient factual basis upon which the Commission can perform its review function. 

See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006). 

Assessment

 

The parties have stipulated that the penalties initially proposed by MSHA will not affect 

Northerngs ability to remain in business and that the violations were abated in good faith. Joint 

Exhibit 1. 

The size of the operatorgs business is relatively small, as it is a family owned, seasonally 

operated business with fewer than thirty employees. Tr. 425. I have taken into account the 

appropriateness of the penalties to the size of the operatorgs business, as well as the desired 

deterrent effect of the civil penalties in comparison to the size of the operator and its overall 

resources. See Black Beauty Coal Co., 34 FMSHRC 1856, 1864-69 (Aug. 2012); Thunder Basin 

Coal Co., 19 FMSHRC 1495, 1505 (Sept. 1997). 

I have also taken into account the operatorgs history of previous violations, which is set 

forth in Exhibit S-14. The exhibit shows that the operator was cited for 58 violations in the 15 

months preceding the 2013 inspections, but it fails to set forth a qualitative assessment of 

whether this number of violations is high, moderate, or low, detracting from its utility in the 

penalty analysis. The Secretary requests that MSHAgs initially proposed penalties for violations 

8672802, 8740698, and 8740699 be doubled based on the operatorgs history of previous 

violations. Specifically, the Secretary argues the operator was cited for the same violations 

during the previous inspection. Br. of Secgy at 25. I reject the Secretarygs request. Pursuant to the 

37 FMSHRC Page 598
Commissiongs statutory authority to assess all civil penalties under section 110(i) of the Mine 

Act, I have instead considered and weighed the six statutory penalty criteria de novo without 

basing the penalty assessment exclusively on MSHAgs proposal and the prior violations. 

The gravity and negligence of each violation is discussed within the body of the decision 

above. 

Based upon the findings as set forth herein, I impose the following penalties: 

A. Docket Number LAKE 2014-110 

1. Order No. 8740828 - $1,449.00 

2. Order No. 8740829 - $1,449.00 

B. Docket Number LAKE 2014-111 

1. Citation No. 8740827 - $1,944.00 

2. Citation No. 8740830 - VACATED 

3. Citation No. 8740835 - $750.00 

4. Citation No. 8740836 - $1,944.00 

C. Docket Number LAKE 2014-180 / Citation No. 8740705 - $176.00 

D. Docket Number LAKE 2014-183 

1. Citation No. 8740695 - $100.00 

2. Citation No. 8740696 - VACATED 

3. Citation No. 8740701 - $100.00 

E. Docket Number LAKE 2014-216 / Order No. 8740699 - $2,000.00 

F. Docket Number LAKE 2014-217 / Citation No. 8672802 - $6,458.00 

G. Docket Number LAKE 2014-430 / Citation No. 8740698 - $2,700.00 

 

37 FMSHRC Page 599
VI. ORDER 

Northern Aggregate, Inc. is hereby ORDERED to pay the sum of $19,070.00 within 

thirty (30) days of the date of this Decision and Order.14 

 /s/ Priscilla M. Rae

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 216, Denver, CO 80204 

Benjamin Wangberg, Esq., Fuller, Wallner, Cayko, Pederson & Huseby, Ltd., 514 American 

Avenue NW, P.O. Box 880, Bemidji, MN 56601 

 14 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. 

37 FMSHRC Page 600
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 16, 2015 

 

DECISION

Appearances: Ryan M. Kooi, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

 

Kelby T. Gray, Esq., Dinsmore & Shohl, LLP, Charleston, West Virginia, 

for Respondent. 

Before: Judge Paez 

 This case is before me upon the Petition for the Assessment of a Civil Penalty filed by the 

Secretary of Labor (USecretaryV) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (UMine ActV), 30 U.S.C. § 815(d). In dispute is one section 104(d)(1) order 

issued by the Mine Safety and Health Administration (UMSHAV) to Big Laurel Mining 

Corporation (UBig LaurelV or URespondentV) as the owner and operator of Mine No. 2 in Wise, 

Virginia. To prevail, the Secretary must prove the cited violation Uby a preponderance of the 

credible evidence.V In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 

1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 

1989)), aff>d sub nom. Sec>y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106c07 

(D.C. Cir. 1998). This burden of proof requires the Secretary to demonstrate that Uthe existence 

of a fact is more probable than its nonexistence.V RAG Cumberland Res. Corp., 22 FMSHRC 

1066, 1070 (Sept. 2000) (citations and internal quotation marks omitted), aff>d, 272 F.3d 590 

(D.C. Cir. 2001). 

 The parties stipulated to the following: 

1. Respondent was an UoperatorV as defined in [section] 3(d) of the [Mine] Act, 

30 U.S.C. § 802(d), at [Mine No. 2,] the [m]ine at which the order in this matter 

was issued. 

2. The operations of Respondent at [Mine No. 2] are subject to the jurisdiction of the 

[Mine] Act.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

BIG LAUREL MINING CORPORATION, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2012-619 

A.C. No. 44-07087-297654 

Mine: Mine No. 2 

37 FMSHRC Page 601
3. [This] proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission, and its assigned Administrative Law Judges, 

pursuant to [s]ections 105 and 113 of the [Mine] Act. 

4. The order in this matter was issued and served by a duly authorized agent of the 

Secretary of Labor upon a representative of Respondent at the date, time and 

place stated therein as required by the [Mine] Act. 

5. The subject order is a true and authentic copy of the order issued and served on 

the mine operator. 

6. The proposed penalty for the subject order will not affect the mine operatorks 

ability to remain in business. 

7. MSHA Inspector Kenneth Garrett issued Order No. 8181919 on May 23, 2012 

during and inspection of Big Laurel Mining Corporationks Mine No. 2. 

8. The inspection took place on the day shift. 

9. Mine Foreman Tony Dean and Electrician Fabian Spears, Jr. travelled with 

Inspector Garrett during the inspection and were present when Order No. 8181919 

was issued. 

10. The photographs taken by Tony Dean, identified as [Exhibits GXc34(a), GXc

34(b), GXc34(c), GXc34(d), GXc34(e), and GXc34(f), and also as] Exhibits 2Rc

9, 2Rc10, 2Rc11, 2Rc12, 2Rc13, and 2Rc14, are authentic photographs. 

(Joint Ex. 2.)1

I. STATEMENT OF THE CASE 

 This case involves a single alleged violation at Big Laurelks Mine No. 2. The alleged 

violation involves Order No. 8181919, which charges Big Laurel with a violation of 30 C.F.R. 

§ 75.4002 for failing to clean up an accumulation of float coal dust. The Secretary characterizes 

Big Laurelks negligence as both high and an unwarrantable failure to comply with a mandatory 

health or safety standard. Although a withdrawal order was issued to the mine, no miners were 

withdrawn as a result of this order, nor was production interrupted. The Secretary proposes a 

specially assessed penalty of $6,300.00. 

 Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. VA 2013-619 to 

me, and I held a hearing in Abingdon, Virginia, alongside two other Big Laurel dockets that are 

the subject of a separate decision. The Secretary presented testimony from MSHA inspector 

Kenneth Garrett. Big Laurel presented testimony from former electrician Fabian Spears, Jr. The 

parties each filed post-hearing briefs and reply briefs. 

 1

 In this decision, the hearing transcript, the Secretaryks exhibits, Big Laurelks exhibits, 

and the partiesk joint exhibits are abbreviated as UTr.,V UEx. GXc#,V UEx. 2Rc#,V and UJoint 

Ex. #,V respectively. 

2

 Section 75.400 provides: UCoal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment therein.V 30 C.F.R. 

§ 75.400. 

37 FMSHRC Page 602
II. ISSUES

 For Order No. 8181919, the Secretary asserts that Respondent failed to fulfill the duty 

imposed by 30 C.F.R. § 75.400 by allowing float coal dust to accumulate along the mineks coal 

conveyor belt. (Secky Br. at 8c11.) The Secretary claims that Big Laurelks actions constituted an 

unwarrantable failure because MSHA had placed the operator on notice that greater efforts at 

compliance with section 75.400 were necessary and the operator should have discovered the 

obvious violation in the eight hours prior to the MSHA inspection. (Id. at 11c15.) 

 In contrast, Big Laurel argues that the cited conditions did not constitute a violation of 

section 75.400 because the accumulated material was not float coal dust. (Respkt Br. at 5c12.) 

Alternatively, Big Laurel claims it was not negligent in allowing the float coal dust to 

accumulate and that its actions did not amount to the kind of aggravated conduct supporting an 

unwarrantable failure determination. (Id. at 12c22.) 

 Accordingly, the following issues are before me: (1) whether the Secretary has carried his 

burden of proof that Respondent violated the Secretaryks mandatory health or safety standards 

regarding the clean-up of accumulations of combustible material in an underground coal mine; 

(2) whether the record supports the Secretaryks assertions regarding the gravity of the alleged 

violations; (3) whether the record supports the Secretaryks assertions regarding Big Laurelks 

negligence in committing the alleged violations, including the unwarrantable failure 

determination; and (4) whether the Secretaryks proposed penalties are appropriate. 

 For the reasons that follow, Order No. 8181919 is MODIFIED to remove the 

unwarrantable failure designation. 

III. FINDINGS OF FACT 

 Big Laurelks Mine No. 2 was a room-and-pillar coal mine located in Wise County, 

Virginia. Big Laurel developed the mine by cutting a series of entries and perpendicular 

crosscuts that together form a grid if viewed from above. (Tr. 751:10c17, 863:16c19.) Crosscuts 

intersected the entries approximately every 80 feet. (Tr. 880:17c20.) Each crosscut was 

approximately 20 feet wide. (Tr. 744:15c18, 764:3c4.) To keep the mineks entries in a safe 

condition, Big Laurel put down gravel and other material in the travelway entries. (Tr. 853:7c

10.) Big Laurel maintained these travelways by occasionally grading the floor to make it level 

and remove mud that had built up. (Tr. 853:7c13.) Big Laurel pushed this waste material, or gob, 

into piles in the crosscuts so it would be out of the way. (Tr. 853:14c854:4.) 

 Big Laurel transported its excavated coal to the mine surface on a series of motor-driven 

conveyor belts. (Tr. 786:5c12, 787:16c17.) Where two coal belts meet, one belt dumps coal from 

its head onto the tailpiece of the second belt. (Tr. 786:7c12.) This process of transferring the coal 

from one belt to another can create coal dust, including float coal dust. (Tr. 785:18c786:1, 

786:7c12.) Float coal dust is particularly fine coal dust that can propagate an explosion even in 

small amounts.3 (Tr. 783:8c18.) Float coal dust is so fine that it can be suspended in the air and 

 3

 MSHA has defined float coal dust as Ucoal dust consisting of particles of coal that can 

pass a No. 200 sieve.V 30 C.F.R. § 75.401(b). 

37 FMSHRC Page 603
carried by the air current ventilating a mine. (Tr. 860:10c12, 863:10c15.) Float coal dust is 

particularly dangerous when suspended in the air. (Tr. 893:4c19.) Because conditions in a mine 

can change quickly, float coal dust can accumulate rapidly along a belt line. (Tr. 806:20c21, 

882:10c16, 883:2c7.) To control the generation of this dust, Big Laurel equipped its coal 

conveyor belts with water sprayers that sprayed the mined coal as it traveled to the surface. (Tr. 

819:1c3, 854:10c14.) In addition, Big Laurel regularly spread rock dust over the mine surfaces 

to coat the float coal dust and reduce its ability to cause an explosion. (Tr. 854:5c9, 854:15c

855:5, 856:10c22.) 

 On May 23, 2012, Inspector Kenneth Garrett visited Big Laurelks Mine No. 2 as part of 

MSHAks regular quarterly inspection of the mine. (Tr. 743:16c18.) Garrett had worked in 

underground mines for approximately seven years at the time of the inspection, including two 

years as an MSHA inspector. (Tr. 737:1c4, 739:10c12.) Garrett was aware that Big Laurel had a 

history of accumulations violations at Mine No. 2, including violations for float coal dust. 

(Tr. 790:1c20.) During the pre-inspection conference in April 2012, Garrett emphasized 

MSHAks concern over Big Laurelks compliance with section 75.400, reiterating warnings that 

MSHA had issued a few months earlier. (Tr. 790:17c20.) 

 Afterward, Inspector Garrett, Mine Foreman Tony Dean, and Electrician Fabian Spears 

traveled down the No. 1 belt to inspect the condition of the coal conveyor belt and its drive 

motors. (Tr. 751:10c17.) When the party reached the No. 31 crosscut at approximately 

10:00 a.m., Garrett noticed that the area appeared to have a coating of black float coal dust. 

(Tr. 755:10c15.) The black material covered an area approximately 20 feet long and five feet 

wide. (Tr. 801:3c6.) The black material not only covered the mineks floor, ribs, roof, and the belt 

structure but also a large pile of gob that had been pushed into the No. 31 crosscut. (Tr. 757:12c

20.) This pile of gob spanned the entire crosscut and rose nearly to the mine roof, effectively 

closing off the entire crosscut. (Tr. 756:10c21.) The layer of black material had settled on top of 

a layer of lighter-colored rock dust that was still visible in patches. (Tr. 758:8c13.) The black 

material made the affected area stand out from the rest of the mine, which appeared well rockdusted. (Tr. 757:5c11, 779:14c780:18.) Garrett reached up to the roof to feel the black material 

and determined it was float coal dust. (Tr. 759:15c760:1.) Although the belt, roof, and mine floor 

were wet, the black dust was drying out. (Tr. 774:20c22, 816:22c817:6.) This black dust was not 

suspended in the air. (Tr. 812:13c17.) 

 The affected area was located in an active working area. (Tr. 801:10c12.) In the entry for 

the No. 1 belt, the air current flowed from inside the mine out to the surface. (Tr. 786:22c787:7.) 

A coal belt exchange and belt drive motor were located at crosscut No. 32, one crosscut upwind 

from the area covered in black dust. (Tr. 856:4c6.) 

 Although the black dust covered a large area, Garrett did not find any belt rollers turning 

in accumulations of the material. (Tr. 816:18c21.) Garrett also did not find any methane or other 

ignition sources in the area. (Tr. 817:11c14.) 

37 FMSHRC Page 604
 Based on his observations, Garrett issued Order No. 8181919, alleging a violation of 

30 C.F.R. § 75.400: 

Accumulations of float coal dust black in color has been allowed to 

exist deposited on top of rock dusted surfaces in the No. 31 x-cut 

between the belt and travelway entries. Float coal dust is observed 

the entire width of the x-cut approximately 20 [feet] wide and 

extending to the mine roof as a result of the dust deposited on a 

[five-foot] mound of gob. This condition exposes miners to 

explosion related accidents. 

75.400 has been cited 44 times in the last two years. Mine 

management was notified 2/10/2012, and reminded at a preinspection conference this quarter that continued non-compliance 

of this standard would result in a[n] evaluation of high negligence. 

The affected area is located [one] break outby a date board used by 

the certified examiners that travel by this location on a regular 

basis conducting required examinations. The black float coal dust 

is obvious and extensive. Mine management has engaged in 

aggravated conduct constituting more than ordinary negligence by 

allowing float coal dust to accumulate. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

(Ex. GXc29.) Because there were no ignition sources in the vicinity, Garrett designated the 

violation as unlikely to cause an injury resulting in lost workdays or restricted duty. (Tr. 781:1c

4; Ex. GXc29 at 1.) Garrett characterized Big Laurelks negligence as UhighV and as an 

unwarrantable failure to comply with a mandatory health or safety standard. (Ex. GXc29 at 1.) 

 Mine Foreman Dean and one other miner abated the violation quickly by spreading two 

bags of rock dust by hand over the affected area. (Tr. 802:17c803:5.) Inspector Garrett issued the 

order at 10:00 a.m. and terminated it at 10:35 a.m. (Ex. GXc29.) Garrett did not require that the 

coal conveyor belt be shut down or miners removed from the area while the alleged 

accumulation was abated. (Tr. 818:16c22.) 

IV. PRINCIPLES OF LAW 

A. 30 C.F.R. § 75.400 < Accumulations 

 A violation of section 75.400 occurs Uwhere the quantity of combustible materials is such 

that, in the judgment of the authorized representative of the Secretary, it could cause a fire or 

explosion if an ignition source were present.V Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 

1980) (UOld Ben IIV) (footnote omitted). This judgment is viewed through the objective standard 

of whether a Ureasonably prudent person, familiar with the mining industry and the protective 

purposes of the standard, would have recognized the hazardous condition that the regulation 

seeks to prevent.V Utah Power & Light, Mining Div., 12 FMSHRC 965, 968 (May 1990), aff>d, 

37 FMSHRC Page 605
951 F.2d 292 (10th Cir. 1991) (UUP&LV). In addition to being combustible, the material cited 

must be of a sufficient quantity to cause or propagate a fire or explosion. UP&L, 12 FMSHRC at 

968 (quoting Old Ben II, 2 FMSHRC at 2808). Although spills can occur quickly, accumulations 

of combustible material substantial enough to cause or propagate a fire are prohibited, even if 

recent. See Black Beauty Coal Co. v. Fed. Mine Safety & Health Review Comm>n, 703 F.3d 553, 

558c59 & n.6 (D.C. Cir. 2012) (rejecting operator argument regarding recency of spill); Prabhu 

Deshetty, 16 FMSHRC 1046, 1049 (May 1994) (rejecting a defense based on recentness of the 

spill). The Commission has consistently held that an inspectorks observations alone may be 

sufficient to establish a violation of section 75.400. See, e.g., Harlan Cumberland Coal Co., 20 

FMSHRC 1275, 1289-90 (Dec. 1998) (declining to engraft a laboratory testing requirement onto 

section 75.400). 

B. Unwarrantable Failure 

The Commission has determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 

(1987). It is characterized by Uindifference,V a Userious lack of reasonable care,V Ureckless 

disregard,V or Uintentional misconduct.V Id. at 2003c04; see also Buck Creek Coal, 52 F.3d at 

136 (approving the Commissionks unwarrantable failure test). Whether conduct is UaggravatedV 

in the context of unwarrantable failure is determined by looking at all the facts and 

circumstances of a case to see if aggravating or mitigating factors exist. The Commission has 

identified several such factors, including: the length of time a violation has existed, the extent of 

the violative condition, whether the operator has been placed on notice that greater efforts are 

necessary for compliance, the operatorks efforts in abating the violative condition, whether the 

violation was obvious, whether the violation posed a high degree of danger, and the operatorks 

knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC 1346, 1350-51 (Dec. 

2009). These factors are viewed in the context of the factual circumstances of each case. 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and 

circumstances of each case must be examined to determine whether an actorks conduct is 

aggravated or mitigating circumstances exist. Id.

V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND 

CONCLUSIONS OF LAW

A. Further Findings of Fact 

 Respondent challenges two factual findings underlying the Secretaryks argument. First, 

Big Laurel challenges the Secretaryks assertion that the discovered black material was float coal. 

(Respkt Br. at 5c12, Respkt Reply at 4c7.) Second, Respondent argues that the cited conditions 

did not exist for more than a few hours. (Respkt Br. at 15c16.) 

 1. Whether the Material Was Float Coal Dust

 Respondent claims the Secretary has not credibly established that the cited black material 

was float coal dust or another combustible material. (Respkt Br. at 5c12; Respkt Reply at 4c7.) 

Instead, Respondent contends that the discovered material was a combination of black mud, wet, 

37 FMSHRC Page 606
gray-colored rock dust, and gravel. (Respkt Br. at 5c7.) Additionally, Respondent claims that 

Inspector Garrettks testimony is unreliable. (Id. at 10c12.) 

 Inspector Garrett identified the black dust as float coal dust by both appearance and feel. 

(Secky Br. at 10.) Garrett testified that he touched the discovered accumulation to confirm the 

material was float coal dust. (Tr. 759:15c760:1.) Garrett testified unequivocally that the 

discovered material was black, like coal. (Tr. 771:4c21.) According to Garrett, the black dust 

covered the floor and the gob pile, extended over the ribs and roof, and coated the top of the belt, 

the chains and other parts of the belt hanging structure, and the bottoms of the belt rollers. 

(Tr. 757:14c20, Ex. GXc31(a), Ex. GXc31(b).) Garrett further testified that the cited area in the 

No. 31 crosscut stood out from the rest of the mine, which was covered with a light-colored rock 

dust. (Tr. 757:5c11, 779:14c780:18.) This same light-colored rock dust could be seen in patches 

underneath the black accumulations. (Tr. 776:6c13.) Photographs taken during the inspection 

show a large area frosted with black material, while neighboring areas are a consistent light color 

from being rock dusted. (Ex. GXc31(a), Ex. GX-31(b), Ex. 2R-13.) 

 Garrett also identified the likely source of the float coal dust as the coal belt exchange 

point at the No. 1 beltks head, located just one crosscut upwind from the affected area. 

(Tr. 785:18-787:7.) According to Garrett, the accumulation could not be gravel dust from a 

parallel entry, as the gob pile almost completely blocked the flow of air from the opposite side of 

the crosscut. (Tr. 798:7-799:11.) Finally, Garrett testified the material was not dark-colored rock 

dust, and that in his seven years in underground mines, including three years with MSHA, he had 

never seen a mine use black rock dust or dark gray rock dust that turned black when wet. 

(Tr. 799:12c21.) 

 Contrary to Respondentks assertions, I find Garrettks testimony to be credible.4

 Garrett 

identified the material as float coal dust by both sight and touch, and he provided a logical source 

for the float coal. Photographs of the area support Garrettks explanation, lending credence to his 

testimony. 

 4

 Respondent attacks Garrettks testimony on two grounds. (Respkt Br. at 7c12; 

Respkt Reply at 7.) First, Big Laurel asserts that Garrettks testimony was inconsistent with the 

text of Order No. 8181919 and his contemporaneous notes from the inspection. (Respkt Br. at 

11c12; Respkt Reply at 7.) Second, Big Laurel attacks Garrettks experience as a mine inspector 

and argues his testimony is unreliable because he did not cross the operational coal conveyor belt 

to closely examine the gob clogging the crosscut in question. (Respkt Br. at 7c9.) Both arguments 

fail. Although Garrettks testimony at hearing expanded beyond the material in his inspection 

notes, nothing in Garrettks notes contradicts his testimony. Second, I recognize the extensive 

training that MSHA inspectors receive, as well as the fact that Garrett had worked in 

underground mines for a total of approximately seven years. See Harlan Cumberland Coal, 20 

FMSHRC at 1289-90 (affirming an ALJks reliance upon the testimony of an experienced 

inspector). Garrett had sufficient training and experience to ably identify float coal dust, one of 

the most dangerous elements in underground coal mining, by both sight and touch. Indeed, 

Garrett touched the black material on the roof and determined it was float coal dust. Respondent 

has not presented any evidence to contradict Garrettks testimony. 

37 FMSHRC Page 607
 In contrast, Respondent asserts that the black material was a mixture of dark-colored rock 

dust and wet mud produced from regular re-graveling and re-grading a nearby travelway. (Respkt 

Reply at 4.) In support of its argument, Respondent points to the testimony of then-electrician 

Spears. (Id.) Spears testified that because the mine was dark, he could not identify the black 

material without crossing the coal conveyor belt to reach the gob pile and touch the material. (Tr. 

859:7c860:10, 862:9c18, 866:1c14.) When Inspector Garrett stopped to examine the conditions 

at the No. 31 crosscut, Spears and Mine Foreman Dean crossed the belt line to get a closer look 

at the pile of gob. (Tr. 842:7c22.) Spears testified that he found Ujust mud and rock dustV at the 

gob pile. (Tr. 866:15c19). Spears claimed that Dean attempted to show the mud to Garrett, but 

that the inspector ignored the mine foreman. (Tr. 869:15-870:13.) Spears further testified that 

Mine No. 2 used dark grey rock dust that darkened further when wet. (Tr. 858:1-20.) 

 After examining the evidence, I find that Spearsk testimony contains a number of 

shortcomings. Although Spears insisted Mine No. 2 regularly used dark grey rock dust, Spearsp

despite his fourteen years in the coal mining industrypwas unable to recall any specific details 

about the darker rock dust. (Tr. 899:8-900:20.) Spears also failed to explain why the mine would 

haul in a small amount of this unorthodox, dark grey rock dust for use in a single crosscut, while 

the remainder of the belt entry and the nearby crosscuts were coated with a traditional, lightcolored rock dust. Moreover, although Spears criticized Garrettks decision to ignore the material 

Dean showed him, Garrett did see Dean reach into the gob to grab wet mud, and not just dust 

from the surface. (Tr. 842:7-22.) Given these inconsistencies, I find that Spearsks testimony on 

this matter is not credible. 

 Looking at the credible evidence before me, I therefore find that the accumulated material 

was float coal dust. 

 2. Duration of the Accumulation

 Respondent also challenges the Secretaryks assertion that the float coal accumulation had 

existed for at least two shifts. (Respkt Br. at 15.) Big Laurel notes that the No. 1 belt was checked 

and found clear of float coal accumulations at 12:00 midnight and again at 5:10 a.m., a few hours 

prior to Garrettks inspection. (Id.; Ex. 2Rc14.) Conversely, Garrett believed that the amount of 

accumulated float coal dust and the lack of float coal dust suspended in the air suggested the 

accumulation had occurred at least two shifts prior to the inspection. (Tr. 797:18c798:6.) Garrett 

admitted, however, that conditions along a belt line can change. (Tr. 806:20c21, 826:2c10.) 

Spears also said that belt conditions can change rapidly between regular examinations. (Tr. 

882:10c16.) Moreover, I note that Inspector Garrett did not issue a citation to Big Laurel for an 

improper examination. (Tr. 828:18c20.) 

 Considering these circumstances and the admitted potential for conditions along the belt 

line to change rapidly, I have doubts about the duration of the accumulation. Given the evidence 

before me, I determine that the Secretary has not established by a preponderance of the evidence 

that the float coal accumulation lasted for more than one shift. Accordingly, I find that the 

accumulation of float coal developed after the mineks last beltline examination at 5:10 a.m. 

37 FMSHRC Page 608
B. Analysis and Conclusions of Law 

 1. Violation of § 75.400

I have already found that the accumulated material discovered in the No. 31 crosscut was 

float coal dust, and that the area was Uin active workings.V 30 C.F.R. § 75.400. Float coal dust Uis 

considered so dangerous that it is mentioned specifically in section 75.400 as a material that an 

operator must not permit to accumulate.V Twentymile Coal Co., 36 FMSHRC 1533, 1539 (June 

2014). Garrett testified that very little float coal dust is needed to propagate an explosion, and 

that the accumulated quantities were sufficient to be dangerous. (Tr. 783:8c22.) In light of these 

facts, I determine that a reasonably prudent person, familiar with the mining industry and 

protective purposes of section 75.400, would have recognized these conditions as the type of 

hazardous conditions the regulation seeks to prevent. See Old Ben II, 2 FMSHRC at 2808 

(U[T]hose masses of combustible materials which could cause or propagate a fire or explosion 

are what Congress intended to proscribe.V). I therefore conclude that Big Laurel violated 

30 C.F.R. § 75.400. 

 2. Gravity

 The Secretary asserts that the float coal dust accumulation was unlikely to cause an 

injury, but if an incident did occur, it could be reasonably expected to result in injuries causing 

lost workdays or restricted duty to one miner. (Secky Br. at 11; Ex. GXc29 at 1.) Inspector 

Garrett testified that the lack of any heat source or methane, and the wetness of the area near the 

accumulation made a fire or explosion unlikely. (Tr. 781:1c13.) Garrett also testified that the 

violative conditions could result in injuries such as smoke inhalation and burns. (Tr. 784:3c15.) 

Finally, Garrett testified that only one person was working in the area of the accumulation.5

(Tr. 785:10c17.) Although Big Laurel has not directly disputed the Secretaryks allegations 

regarding gravity, I nevertheless determine the Secretary proved that the violation was unlikely 

to cause injury, that the injuries most likely to result would result in lost workdays or restricted 

duty, and that the conditions affected only one miner. 

3. Negligence and Unwarrantable Failure 

 The Secretary has characterized Big Laurelks negligence as high and designated this 

violation as an unwarrantable failure. In support of his allegations, the Secretary points to the 

obviousness, extent, and duration of the violation. (Secky Br. at 13c14.) In addition, the Secretary 

asserts that Respondent made no effort to address the violation prior to the inspection despite 

being on notice that greater efforts were necessary to comply with section 75.400. (Id. at 14c15.) 

 Respondent contends that the Secretaryks negligence and unwarrantable failure 

determinations are inappropriate. (Respkt Br. at 12.) Big Laurel asserts that the conditions were 

not extensive and that any accumulation of float coal dust did not pose a danger or hazard to 

miners. (Id. at 13c15.) Big Laurel further argues that it had no knowledge of the accumulation, 

the violation was not obvious, and the violation lasted for a short amount of time. (Id. at 15c17.) 

Respondent contends it was not on notice that it needed to improve its efforts to prevent float 

 5

 Big Laurel has not disputed the Secretaryks allegations regarding gravity. 

37 FMSHRC Page 609
coal dust accumulations. (Id. at 17c21.) Finally, Respondent avers that it nevertheless had taken 

steps to prevent such accumulations and that it abated the violation rapidly and in good faith. (Id.

at 21c22.) 

 Looking to the Commissionks aggravating factors in the unwarrantable failure 

determination, two of the factors support the Secretaryks argument. First, the condition was 

obvious. Inspector Garrett testified he had no difficulty seeing the condition and that the black 

dust stood out sorely from the surrounding area of the mine. (Tr. 799:22c800:7.) In addition, 

Garrett could reach up to touch the black dust without having to cross the belt and walk into the 

crosscut. (Tr. 759:20c760:9.) Second, Big Laurelks history of section 75.400 violations and 

repeated warnings from MSHA put the mine on notice that it needed to improve its efforts to 

prevent accumulations of combustible materials.6

 

 The remaining factors do not conclusively weigh in favor of either party. First, because 

the conditions were obvious and Big Laurel was on high alert for such accumulations, I 

determine that the mine reasonably should have known of the accumulated float coal dust. 

Nevertheless, the Secretary has not presented any evidence suggesting that Big Laurel had actual 

knowledge of the conditions prior to the inspection. Second, because Big Laurel did not have 

actual knowledge of the accumulation, the mine operator made no efforts to abate the conditions. 

Although Respondent presented evidence that it regularly rock dusted the belt line and that the 

surrounding areas were well coated in rock dust, its regular rock dusting plan proved insufficient 

to catch and ameliorate this float coal accumulation. 

Third, I have already determined that the accumulation occurred after the preshift 

examination at 5:10 a.m. The Secretaryks unwarrantable failure determination was premised, in 

part, on the fact that Big Laurel conducted multiple examinations of the affected area and 

 6

 Big Laurel contends that its past history of section 75.400 violations and MSHAks 

warnings served only to put the mine on Ugeneral notice,V and not Uon notice that greater 

compliance efforts were necessary or required with regards to alleged float coal dust on gob piles 

in crosscuts.V (Respkt Br. at 18c20 (citing Cumberland Coal Res., LP, 31 FMSHRC 137 

(Jan. 2009) (ALJ); Highland Mining Co., 34 FMSHRC 3108 (Dec. 2012) (ALJ); Big Ridge, Inc., 

36 FMSHRC 1677 (June 2014) (ALJ)).) The decisions Respondent relies upon are from 

Commission Administrative Law Judges, and are neither Commission precedent nor binding on 

other Judges of the Commission. 29 C.F.R. § 2700.69(d). Moreover, the Commission has held 

that past violations of section 75.400 do not need to be Ufactually indistinguishable from the cited 

conditionV to provide notice that greater efforts are necessary for compliance with the standard. 

Big Ridge, Inc., 35 FMSHRC 1525, 1530 (June 2013). Although an operator may draw a 

distinction demonstrating an anomaly, it bears the burden of rebutting the Secretaryks 

Ucontention that the prior violations did, in fact, put the operator on notice.V Twentymile Coal, 36 

FMSHRC at 1538c39. Big Laurel has not demonstrated such an anomaly to rebut the Secretaryks 

contention in the case at hand, as the mineks past violations included citations for coal dust 

accumulations along belt lines. (See Ex. GXc32, Ex. GXc33.) Moreover, while section 75.400 

may be a broad standard, it specifically mentions float coal dust as a type of material that cannot 

be permitted to accumulate. 30 C.F.R. § 75.400; Twentymile Coal, 36 FMSHRC at 1539. 

Accordingly, I determine that Respondent was on notice that greater efforts were necessary to 

comply with the regulation. 

37 FMSHRC Page 610
neglected to notice and address the accumulation. The Secretaryks only credible evidence 

regarding the duration of the violation was testimony that the float coal dust was no longer in 

suspension. This evidence alone is insufficient to show the violation had existed for a long time. 

Given the low degree of danger that Inspector Garrett found this violation posed, I do not 

determine that the accumulationks existence for a few hours constitutes aggravated behavior. Cf. 

Midwest Material Co., 19 FMSHRC 30, 34-36 (Jan. 1997) (attributing violation to operatorks 

unwarrantable failure where the duration was only a period of a few minutes because it posed a 

high degree of danger, involved a foreman, and the violative condition may have continued but 

for occurrence of accident). 

Fourth, the evidence regarding the extent of the violation is conflicting. Although 

Inspector Garrett testified that the float coal dust generally covered an area 20 feet long and five 

feet wide, the Secretary did not present substantial evidence regarding the depth of the 

accumulations or the pervasiveness of the coating of float coal dust. Furthermore, two miners 

were able to abate the conditions Ufairly quicklyV by hand-dusting and without an interruption to 

Big Laurelks operations, and Inspector Garret was able to terminate the order within 35 minutes 

of its issuance. (Tr. 802:15c803:1, Tr. 818:16c22.) Such rapid abatement suggests the violation 

was not extensive. See Manalapan Mining Corp., 35 FMSHRC 289, 295 (Feb. 2013) 

(considering the time to abate the violative conditions when assessing the extent of a violation). 

Finally, the evidence before me does not indicate the violation here was highly 

dangerous. As I have discussed in prior holdings, accumulations of float coal dust rank among 

the most dangerous conditions in an underground coal mine. See Black Beauty Coal Co., 

36 FMSHRC 2548, 2562 (Sep. 2014) (ALJ). Here, surprisingly, the Secretary has presented 

evidence that the conditions surrounding this violation lowered the threat posed by this 

accumulation. Indeed, it is telling that Inspector Garrett, despite issuing a withdrawal order, 

neither required the coal conveyor belt to be shut down nor the area evacuated while Dean and 

Spears rock dusted the affected area. 

 Nonetheless, I find it disturbing that Big Laurel failed to heed repeated warnings that its 

efforts at addressing accumulations were insufficient, and thus allowed a potentially explosive 

amount of float coal dust to accumulate in a well-traveled section of the mine. Yet notice and 

obviousness alone do not push Big Laurelks conduct into the realm of intentional misconduct, 

indifference, reckless disregard, or a serious lack of reasonable care. Where an MSHA inspector 

does not consider a violation sufficiently dangerous to enforce his own withdrawal order, I have 

difficulty giving credence to his justification for that order. In light of these facts and 

circumstances, I cannot conclude that the Secretary has met his burden of proving aggravated 

conduct amounting to an unwarrantable failure on the part of Respondent. 

 Although the Secretary has not shown that Respondentks actions amounted to an 

unwarrantable failure to comply with a mandatory safety standard, I still conclude the Secretary 

has met his burden of showing that Big Laurel was highly negligent.7

 Respondent failed its duty 

 7

 The Commission has recognized that a finding of high negligence suggests an 

unwarrantable failure. San Juan Coal Co., 29 FMSHRC 125, 136 (Mar. 2007). Nevertheless, a 

finding of high negligence does not necessarily compel a finding of an unwarrantable failure. 

E. Associated Coal Corp., 13 FMSHRC 178, 186c87 (Feb. 1991). 

37 FMSHRC Page 611
to ensure that float coal dust did not accumulate in the No. 2 Mine. The float coal accumulation, 

if exposed to an ignition source, posed the threat of a potentially catastrophic explosion, and yet 

abatement of the condition required only minimal effort. Cf., United States v. Carroll Towing 

Co., 159 F.2d 169 (2d Cir. 1947) (calculating negligence by comparing the potential harm to the 

expense of measures to prevent that harm). Although the Secretary has not provided evidence 

sufficient to support an unwarrantable failure determination, Big Laurel likewise has not 

provided evidence explaining its conduct. Big Laurelks rock dusting policies were insufficient to 

catch and address an obvious float coal dust accumulation. Despite the relatively short duration, 

the lack of suspended float coal dust suggests Respondent had ample time to find and remedy the 

problem prior to the inspection. Accordingly, I conclude that Respondentks negligence was high. 

See 30 C.F.R. § 100.3(d) at Table X (suggesting Uhigh negligenceV where the Uoperator knew or 

should have known of the violative condition or practice, and there are no mitigating 

circumstances.V) 

Based on the above, Order No. 8181919 is MODIFIED to remove the unwarrantable 

failure designation. 

C. Penalty 

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil 

penalty, including the operatorks history of previous violations; the appropriateness of the 

penalty relative to the size of the operatorks business; the operatorks negligence; the penaltyks 

effect on the operatorks ability to continue in business; the violationks gravity; and the 

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

notification of a violation. 30 U.S.C. § 820(i). 

The Secretary proposed a specially-assessed penalty of $6,300.00 for Order No. 8181919. 

The parties have stipulated that the proposed penalty would not infringe on Respondentks ability 

to remain in business. While I have affirmed the violation and the Secretaryks negligence 

allegations, I have removed the unwarrantable failure designation. Respondent had 44 violations 

of section 75.400 in the two years prior to this violation. (Ex. R2c3.) Once this order was issued, 

nothing suggests that Respondent failed to make a good faith effort to achieve rapid compliance 

with the safety standard. Considering all of the facts and circumstances set forth above, I hereby 

assess a civil penalty of $3,000.00. 

37 FMSHRC Page 612
VI. ORDER

In light of the foregoing, it is hereby ORDERED that Order No. 8181919 is MODIFIED

to a section 104(a) citation by removing the unwarrantable failure designation. 

WHEREFORE, Respondent is ORDERED to pay a penalty of $3,000.00 within 40 days 

of this Decision.8 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Ryan M. Kooi, Esq., U.S. Department of Labor, Office of the Regional Solicitor, The Curtis 

Center, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106 

Kelby Thomas Gray, Esq., Dinsmore & Shohl LLP, P.O. Box 11887, Charleston, WV 25339 

/lct 

3D\PHQWVKRXOGEHVHQWWR86'HSDUWPHQWRI/DERU06+$3D\PHQW2IILFH32

%R[6W/RXLV023OHDVHLQFOXGHGRFNHWDQG$&QXPEHUV

37 FMSHRC Page 613
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 18, 2015 

 

DECISION AND ORDER

Appearances: Daniel R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, Colorado, for Petitioner; 

 Christopher D. Pence, Esq., Hardy Pence LLC, Charleston, West Virginia, 

for Respondent. 

Before: Judge Paez 

 This case is before me upon the petitions for the assessment of civil penalty filed by the 

Secretary of Labor (TSecretaryU) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(d). In dispute are four section 104(a) citations issued to 

Mach Mining, LLC (TMachU or TRespondentU) at its Mach #1 Mine. To prevail, the Secretary 

must prove his charges Tby a preponderance of the credible evidence.U In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing 

Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff>d sub nom., Sec>y of 

Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106`07 (D.C. Cir. 1998). This burden of 

proof requires the Secretary to demonstrate that Tthe existence of a fact is more probable than its 

nonexistence.U RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations 

and internal quotations omitted), aff>d, 272 F.3d 590 (D.C. Cir. 2001). 

I. STATEMENT OF THE CASE

 

 Chief Administrative Law Judge Robert J. Lesnick assigned Docket Nos. LAKE 2012-66 

and LAKE 2013-294 to me and I consolidated them for hearing. The Secretary initially charged 

Mach with a total of seven section 104(a) citations. On August 4, 2014, counsel for the Secretary 

alerted me that three alleged violations had settled, and I disposed of those citations in a separate 

decision issued August 28, 2014. Thus, four section 104(a) citations remain at issue. First, 

Citation No. 8424601 in Docket No. LAKE 2012-66 charges Mach with violating its ventilation 

plan under 30 C.F.R. § 75.370(a)(1) for failing to maintain a ventilation curtain within forty feet 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

MACH MINING, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2012-66 

A.C. No. 11-03141-268040-01 

Docket No. LAKE 2013-294 

A.C. No. 11-03141-310246 

Mine: Mach #1 Mine 

37 FMSHRC Page 614
of the coal face for every cut.1

 The Secretary designated the violation as significant and 

substantial (TS&SU)2 and proposed a specially-assessed penalty of $2,900.00 for Citation No. 

8424601 based on 30 C.F.R. § 100.5. 

In addition, Citation Nos. 8444918, 8444919, and 8444920 in Docket No. LAKE 2013-

294 charge Respondent with a failure to maintain its roof bolting equipment in permissible and 

operating condition under 30 C.F.R. § 72.630(b).3 The Secretary has proposed a total penalty of 

$1,414.00 for these three violations according to his points system at 30 C.F.R. § 100.3. 

Upon proper notice, I held a hearing in Evansville, Indiana.4 The Secretary presented 

testimony from Inspectors Danny Ramsey and J. Scott Lee. Mach presented testimony from 

Foreman Johnnie Dotson, former Superintendent Johnny Robertson, and Roof Bolter Dale Dodd. 

After requesting extensions, the parties each filed closing briefs and reply briefs. 

II. PARTIES1 ARGUMENTS AND ISSUES 

The Secretary argues that the allegations underlying each of the citations are valid and 

that his proposed penalties are appropriate. (Secjy Br. at 27.) Although MSHA Inspector Ramsey 

characterized Machjs negligence as TmoderateU for Citation No. 8424601 (Ex. G`2), the 

Secretary in his post-hearing brief asks that I modify Machjs level of negligence to ThighU for 

 1

 Section 75.370(a)(1) provides: 

The operator shall develop and follow a ventilation plan 

approved by the district manager. The plan shall be designed to 

control methane and respirable dust and shall be suitable to the 

conditions and mining system at the mine. The ventilation plan 

shall consist of two parts, the plan content as prescribed in 

[section] 75.371 and the ventilation map with information as 

prescribed in [section] 75.372. Only that portion of the map which 

contains information required under [section] 75.371 will be 

subject to approval by the district manager. 

2

 The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C. 

§ 814(d)(1), which distinguishes as more serious any violation that Tcould significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard.U 

3

 Section 72.630(b) provides: TDust collectors shall be maintained in permissible and 

operating condition. Dust collectors approved under Part 33nDust Collectors for Use in 

Connection with Rock Drilling in Coal Mines of this title or under Bureau of Mines Schedule 

25B are permissible dust collectors for the purpose of this section.U 

4

 In this decision, the hearing transcript, the Secretaryjs exhibits, and Machjs exhibits are 

abbreviated as TTr.,U TEx. G`#,U and TEx. R`#,U respectively. The parties also admitted a list of 

stipulations in a joint exhibit, which was admitted as Ex. G`12. 

37 FMSHRC Page 615
Citation No. 8424601 based on testimony from Machjs supervisors demonstrating their 

knowledge that no line curtain was installed during the most recent cut. (Secjy Br. at 14`17, 27.) 

In contrast, Respondent contends the citations at issue should be vacated or modified. 

(Respjt Br. at 10`13, 16.) Specifically, Mach argues that the ventilation plan requirement at issue 

in Citation No. 8424601 is ambiguous. (Id. at 4`10.) Thus, Mach maintains that the alleged 

violation of 30 C.F.R. § 75.370(a)(1) should be vacated. (Id. at 10.) In the alternative, 

Respondent argues that the citation should be modified to remove the S&S designation because a 

reasonably serious injury was not reasonably likely. (Id. at 12; Respjt Reply at 8`10.) Pointing to 

the ventilation planjs TambiguityU and MSHAjs previous failures to enforce the plan provision at 

issue, Mach also claims that it did not act negligently. (Respjt Reply at 7`8.) In addition, Mach 

argues that Citation Nos. 8444918, 8444919, and 8444920 should be vacated because the 

Secretary failed to demonstrate that the roof bolting machines in question were not maintained in 

permissible and operating condition. (Respjt Br. at 13`16; Respjt Reply at 10`11.) 

Accordingly, the following issues are before me: (1) whether the cited conditions 

constituted violations of the Secretaryjs mandatory health or safety regulations; (2) whether the 

record supports the Secretaryjs allegations as to the gravity of each of the cited conditions; 

(3) whether the record supports the Secretaryjs allegations regarding Machjs level of negligence, 

including whether I should increase the level of negligence associated with Citation No. 8424601 

to ThighU; and (4) whether the proposed penalties for these violations are appropriate. 

For the reasons that follow, Citation No. 8424601 is AFFIRMED as written, and 

Citation Nos. 8444918, 8444919, and 8444920 are VACATED. 

III. BACKGROUND AND FINDINGS OF FACT

Mach #1 is a longwall, underground coal mine in Johnson City, Illinois. (Tr. 23:3, 26:11`

27:25; Ex. G`4 at 1.) Longwall coal panels are extremely large blocks of coal that are mined 

using a shearing system that creates long cuts of coal along the face of the longwall panel. 

(Tr. 26:17`27:3.) To do so, Mach must develop corridors that will allow the operator to access 

the longwall panel. (Tr. 27:4`9, 28:6`18, 56:8`17, 118:13`21; Ex. R`1.) To create these access 

corridors, Mach uses a continuous mining machine to cut long, parallel pathwaysnknown as 

entriesnthrough the seam of coal surrounding the longwall panel. (Tr. 27:10`12, 28:12`18, 

56:8`17; Ex. R`1.) As mining progresses, Mach also cuts perpendicular access corridorsn

known as crosscutsnthat connect the minejs entries. (Ex. R`1; see Tr. 143:3`144:1.) When 

viewed from above, this network of access corridors resembles an elongated checkerboard. 

(Ex. G`14; Ex. R`1; Ex. R`2; Ex. R`3.) 

Coal mining at Mach #1 Mine requires numerous cuts, which produce harmful dusts and 

explosive gasses that must be ventilated to protect Respondentjs miners. (Tr. 34:6`36:12, 44:1`

4.) These cuts create significant rock and coal dust, which is harmful for miners to inhale. 

(Tr. 35:3`36:12.) Mach #1 Mine is also a TgassyU mine that liberates over 1,000,000 cubic feet 

of methane in a 24-hour period. (Tr. 23:9`24:14, 94:16`18.) In concentrations of five to fifteen 

percent, methane is explosive (Tr. 36:4`7, 45:20`46:1), but the presence of coal dust lowers the 

explosive range for methane (Tr. 36:4`12). 

37 FMSHRC Page 616
Given these dangers, the Secretaryjs health and safety regulations require mine operators 

to control methane and respirable dust by proposing and following ventilation plans. 

30 C.F.R. § 75.370(a)(1). A ventilation plan must be suitable to the minejs conditions and 

mining system, and it must be approved by MSHA. Id. Ventilation plans require mine operators 

to use a variety of mechanisms to direct a specified volume of fresh air through the minejs 

entries and crosscuts to its working areas, then sweep harmful and contaminated air out of the 

mine. See, e.g., 30 C.F.R. § 75.371 (describing the content of ventilation plans). Accordingly, 

Mach employs a network of barriers and curtains to direct fresh air to the working areas of the 

mine. (See, e.g., Tr. 33:13`19, 42:23`43:1, 62:7`11.) At the time of these violations, Mach #1 

Mine operated on blowing ventilation that forced air through the mine. (Tr. 23:2`8, 39:13`24, 

51:10`22, 60:4`61:6, 142:14`20, 151:21`152:20; Ex. G`15.) As part of this system, Mach used 

TwingU curtains and TlineU curtains in conjunction to direct fresh air traveling down an entry or 

crosscut toward the continuous miner as it cuts into the coal seam. (Tr. 51:1`6, 126:21`127:3, 

130:1`15, 144:11`20, 149:20`150:5, 172:16`174:9; see Ex. G`15.) The fresh air from the wider 

corridor would be funneled into a smaller channel between the rib and the line curtain. (Tr. 51:1`

6, 144:11`20; see Ex. G`15.) In turn, this channel would direct fresh, ventilating air to the area 

where the continuous mining machine was cutting coal, thus releasing methane and creating 

dust. (Tr. 51:1`6, 126:21`127:3, 130:1`15, 144:11`20, 149:20`150:5, 172:16`174:9; see Ex. G`

15.) 

Machjs continuous mining machines also have several mechanisms designed to address 

dust and methane hazards, including: scrubbers, methane monitors, and water sprays. (Tr. 36:3`

14, 45:17`18, 93:10`19, 106:25`108:17, 150:6`22, 151:5`10.) In addition, Mach would 

periodically check methane levels in its cuts every twenty minutes. (Tr. 93:23`94:6.) 

To help secure the ceilingnalso known as the roofnof these entries and crosscuts, Mach 

uses machines to install long metal roof bolts designed to provide support. (See Tr. 192:19`25, 

213:10`22, 280:23`281:2, 283:9`18.) As part of the process, roof bolting machines drill into the 

rock roof above them. (Tr. 189:4`6, 214:1`7.) Drilling into the roof creates either silica or coal 

dust, which are harmful when inhaled. (Tr. 213:10`214:7, 226:13`227:9.) To protect the 

machine operators, roof bolters use dust collection systems to limit the amount of dust to which 

miners are exposed. (Tr. 189:4`191:19, 194:2`5, 194:15`18.) 

IV. PRINCIPLES OF LAW

A. 30 C.F.R. § 75.370(a)(1) B Ventilation Plans

Section 75.370(a)(1) requires operators to develop and follow an approved ventilation 

plan designed to control methane and respirable dust and that is suitable to the minejs conditions 

and mining system. 30 C.F.R. § 75.370(a)(1); see Peabody Coal Co., 16 FMSHRC 2199, 2203 

(Nov. 1994) (affirming ALJjs conclusion that a ventilation plan is violated when an operator 

does not follow its specific terms). 

37 FMSHRC Page 617
B. 30 C.F.R. § 72.630(b) B Dust Collectors

 Section 72.630(b) requires that mine operators maintain dust collection systems in two 

ways. See 30 C.F.R. § 72.630(b). First, operators must maintain dust collectors in permissible 

condition.5 Id. Specifically, section 72.630(b) defines TpermissibleU dust collectors to include 

collectors approved under 30 C.F.R. part 33 or under Bureau of Mines Schedule 25B. Id.

According to Part 33 of the Secretaryjs regulations regarding dust collectors, the term 

permissible Tas applied to a dust collector means that [the dust collector] conforms to the 

requirements of [Part 33], and that a certificate of approval to that effect has been issued.U 

30 C.F.R. § 33.2(a). Because MSHA issues certificates of approval to dust collection systems as 

a whole, see 30 C.F.R. § 33.9 (indicating that T[i]ndividual parts of dust collecting systems will 

not be certified for performanceU), permissibility therefore requires that dust collection systems 

be maintained as MSHA approved them. Cf. Tri County Coal, LLC, 34 FMSHRC 3255, 3274`75 

(Dec. 2012) (ALJ) (concluding that although a hole in a vacuum hose did not render a dust 

system inoperable because it provided enough suction, the hole rendered the system nonpermissible because it would not have been approved with the hole in the hose). Second, section 

72.630(b) requires mine owners to maintain dust collection systems in ToperatingU condition. 

30 C.F.R. § 72.630(b). As I observed in Liggett Mining, LLC, 33 FMSHRC 1702 (July 2011) 

(ALJ), Tthe plain use of the word ooperatingj is synonymous with ofunctionalj, a word defined as 

operforming or able to perform its regular function.jU Id. at 1714 (citing Webster>s Third New 

Int>l Dictionary (Unabridged) 921, 1581 (2002)). Thus, the Secretary may demonstrate a 

violation of section 72.630(b) by proving either (1) that the dust collection system was not 

maintained as it had been approved; or (2) that the dust collection system was not in operating 

condition. 

 5

 In its briefs, Mach claims that TpermissibleU as used in section 72.370(b) refers to 

TpermissibleU as defined in section 318 of the Mine Act, 30 U.S.C. § 878(i). (Respjt Br. at 13`

14.) Specifically, Mach suggests that I follow the Administrative Law Judgejs reasoning from an 

unrelated proceeding involving Respondent. See Mach Mining, LLC, 35 FMSHRC 2827, 2832`

33 (Aug. 2013) (ALJ) (discussing the meaning of TpermissibleU in the context of section 

72.370(b) and vacating the citation.) However, the decision upon which Mach relies is not 

persuasive. Although TpermissibleU may often be a term of art used to ensure that electrical 

equipment will not cause a mine explosion or mine fire, it is not always so limited. Here, 

Respondent ignores the second sentence of section 72.630(b), which specifically incorporates the 

definition of TpermissibleU used in Part 33 of the Secretaryjs regulations. 30 C.F.R. § 72.630(b) 

(TDust collectors approved under Part 33nDust collectors for Use in Connection with Rock 

Drilling in Coal Mines of this title or under Bureau of Mines Schedule 25B are permissible dust 

collectors for the purpose of this section.U). Thus, the text of section 72.630(b) specifically

incorporates 30 C.F.R. part 33nincluding the definition at 30 C.F.R. § 33.2. Moreover, the 

regulatory history of section 72.630(b) reveals that the regulation writers were targeting 

respirable dust rather than potential ignitions. See Air Quality: Health Standards for Abrasive 

Blasting and Drill Dust Control, 59 Fed. Reg. 8318, 8323`25 (1994). In the context of section 

72.630(b), the meaning of TpermissibleU therefore is defined in accordance with Part 33. 

37 FMSHRC Page 618
C. Significant and Substantial

A violation is S&S Tif, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.U Cement Div., Nat>l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: T(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazardnthat is, a measure of danger to safetyn

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.U Mathies Coal Co., 6 FMSHRC 1, 3`4 (Jan. 1984) (footnote omitted);

see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135`36 (7th 

Cir. 1995) (affirming ALJjs application of the Mathies criteria); Austin Power, Inc. v. Sec>y of 

Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). 

 The Commission has provided guidance to Administrative Law Judges in applying the 

Mathies test. The Commission indicated that Tan inspectorjs judgment is an important elementU 

in an S&S determination. Mathies, 6 FMSHRC at 5 (citing Nat>l Gypsum, 3 FMSHRC at 825`

26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion in 

crediting opinion of experienced inspector). The Commission has also observed that Tthe 

reference to ohazardj in the second element is simply a recognition that the violation must be 

more than a mere technical violationni.e., that the violation present a measure of danger.U 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Nat>l 

Gypsum, 3 FMSHRC at 827). Moreover, the Commission clarified Tthe correct inquiry under the 

third element of Mathies is whether the hazard identified under element two is reasonably likely 

to cause injury.U Black Beauty Coal Co., 34 FMSHRC 1733, 1742 n.13 (Aug. 2012). Finally, the 

Commission has specified that evaluation of the reasonable likelihood of injury should be made 

assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

D. Negligence

 Although the Secretaryjs 30 C.F.R. part 100 regulations are not binding on the 

Commission, see Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014), the 

Secretaryjs definitions of negligence in those provisions are illustrative. According to the 

Secretary, negligence is Tconduct, either by commission or omission, which falls below a 

standard of care established under the Mine Act to protect miners against the risks of harm.U 

30 C.F.R. § 100.3(d). These standards indicate that high negligence is found where T[t]he 

operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.U Id. at Table X. Moreover, the standards prescribe moderate 

negligence where T[t]he operator knew or should have known of the violative condition or 

practice, but there are mitigating circumstances.U Id. 

 

37 FMSHRC Page 619
V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAWB

VENTILATION VIOLATIONBCITATION NO. 8424601

A. Additional Findings of Fact

 Inspector Ramsey visited Mach #1 Mine on March 22, 2011, to conduct an inspection 

and traveled to the South Mains #2 portion of the mine along with then-Mine Superintendent 

Johnny Robertson. (Tr. 24:15`25:16, 138:17`19.) The South Mains #2 section consisted of six 

entries numbered consecutively from left to right. (Tr. 28:9`10, 29:11`24, 61:7`23, 115:8`14, 

117:1`13, 120:16`121:2; Ex. G`14; Ex. R`1; Ex. R`2; Ex. R`3.) Ventilating air traveled into the 

section through Entry Nos. 5 and 6, turned to the left to sweep across the section in the crosscut, 

then turned left again to return to the surface through Entry Nos. 1 and 2.6

 (Tr. 61:24`62:1, 

63:10`16, 64:8`68:12, 121:3`20, 142:8`13; Ex. G`14.) A conveyor belt in Entry No. 4. 

transported coal out of the mine. (Tr. 143:3`10.) 

Upon arriving on the section, Inspector Ramsey began an imminent danger run through 

the area. (Tr. 25:23`24; Ex. G`3 at 1.) By March 22, the operator had progressed nine full 

crosscuts into the coal seam and was in the process of developing Crosscut No. 10. (Tr. 69:21`

70:1.) While standing in the intersection of Entry No. 3 and Crosscut No. 9, Ramsey measured 

39,848 cubic feet per minute (C.F.M.) of air, which complied with the requirements of Machjs 

ventilation plan. (Tr. 62:20`63:9; Ex. G`14; see Ex. G`3 at 1.) At that point, Ramsey observed 

Machjs continuous miner developing Crosscut No. 10. (Tr. 25:23`26:3, 32:21`33:12; Ex. G`3 at 

3; Ex. G`14; Ex. G`15.) The continuous miner operator had completed his crosscut connecting 

Entry No. 4 to Entry No. 3, then continued in a straight line to mine the crosscut from Entry No. 

3 into Entry No. 2. (Tr. 25:23`26:3, 33:9`10, 70:16`71:3, 120:4`10, 121:21`122:2, 142:21`24; 

Ex. G`3 at 3; Ex. G`14; Ex. G`15; Ex. R`1; Ex. R`2; Ex. R`3.) Therefore, the miner operator 

approached the cut head-on (or flush), rather than making a perpendicular turn from Entry No. 3 

to cut into the coal towards Entry No. 2. (Tr. 25:23`26:10, 70:16`71:3, 71:20`72:1, 82:1`10, 

122:3`24; Ex. G`3 at 3; Ex. R`2.) Based on Machjs ventilation plan, that meant fresh air coming 

down Entry Nos. 5 and 6 surged left at Crosscut No. 10 and now was at the minerjs back and 

contacting the flush face of the coal when Mach began the cut from Entry No. 3 into Entry No. 2. 

(Tr. 72:9`14, 78:9`15, 122:25`123:2, 128:11`13, 130:20`21, 145:22`24.) 

At the time, Mach used a consistent cut pattern as it developed the South Mains to access 

new longwall panels. (Tr. 30:8`31:25, 125:6`25, 143:3`144:7, 154:14`16; Ex. G`14; Ex. R`1; 

Ex. R`2; Ex. R`3.) Machjs mining plans allowed Respondent to cut up to forty feet at a time.7

 6

 Neither party introduced evidence suggesting that Entry Nos. 3 or 4 were involved in 

ventilating the section. 

7

 Each forty-foot cut consisted of four smaller cuts. First, Mach cut twenty-feet deep on 

the right side of the crosscut, then moved over to the left side and made another twenty-foot cut. 

(Tr. 74:12`17, 98:13`99:11, 124:14`19.) Next, Mach cut an additional twenty feet on the right 

side of the crosscut, then made a fourth cut on the left side. (Tr. 74:18`23; 98:13`99:11, 124:14`

19.) Because the distance between entries at Mach #1 Mine exceeded fifty feet, Respondent 

needed to complete multiple forty-foot cut cycles to complete each crosscut connection between 

entries. (Tr. 171:9`11.) 

37 FMSHRC Page 620
(See Ex. G`4 at 36; Ex. G`13 at A4.) As Mach progressed deeper into the mine, it would then 

cut its crosscuts to connect the entries in accordance with its ventilation plan. (Tr. 143:3`144:1.) 

Because Mach wanted to encourage familiarity, consistency, and proficiency with its mining 

process, Respondent employed the same crosscut procedure for every crosscut. (Tr. 123:22`

126:5, 143:22`144:7.) In doing so, Mach did not install any line curtain during the first forty-foot 

cut it made into a flush coal face with ventilating air at the back of the miner.8 (Tr. 124:20`

126:5, 144:11`14, 148:14`150:5, 154:14`16.) Over the previous three years, Mach had made 

hundreds of such TflushU cuts. (Tr. 125:6`25.) MSHA had not issued a citation to Mach for this 

mining process. (Tr. 126:1`9.) 

By the time Inspector Ramsey approached the area, the continuous mining machine had 

cut forty feet beyond the rib line into the coal block separating Entry No. 3 and Entry No. 2.9

(Tr. 39:21`23, 71:16`19, 73:24`74:6, Tr. 89:24`90:4, 91:16`92:23, 98:13`99:7; Ex. G`3 at 4; 

Ex. G`15.) Because the roof bolts in Entry No. 3 had been spaced a few feet short of the rib line, 

this meant that the continuous miner had exceeded the ventilation planjs forty-foot limit. (See Tr. 

86:13`88:24.) As a result, the coal face was located approximately forty-two or forty-three feet 

from the last row of roof bolts. 

No line curtain had been provided at any point to direct air to the front of the continuous 

miner driving this cut. (Tr. 33:13`34:5, 39:21`24, 51:25, 92:25`93:2,124:20`125:5, 134:3`

135:6, 135:19`22; Ex. G`3 at 3.) However, the continuous minerjs TscrubberU system and water 

sprays were running and operational. (Tr. 107:10`108:17, 150:6`22.) The atmosphere contained 

two- to three-tenths of one percent of methane. (Tr. 36:3`14, 44:23`24, 45:17`18, 93:5`9, 

151:5`10; Ex. G`3 at 3.) 

Based on his observations, Inspector Ramsey issued Citation No. 8424601, providing: 

The approved ventilation plan was not being followed in [Crosscut 

No. 10] between [Entry No. 2 and Entry No. 3] on the South 

Main[s] #2 unit. A forty (40) [foot] cut had been mined without a 

ventilating line curtain being installed. The approved ventilation 

plan requires [a] ventilating line curtain [to] be installed and 

maintained no further than 40 feet from the deepest penetration. 

 8

 Although Foreman Dotson claimed no line curtain was necessary for this first forty-foot 

cut because it was a TflushU cut, he admitted that he would set the line and wing curtain up at the 

second to last row of bolts for the second forty-foot cut in the crosscut. (Tr. 130:1`15, 136:5`19, 

137:1`2; see also Tr. 144:14`20, 148:14`149:5 (Superintendent Robertson indicating the same).) 

Thus, Mach would provide a curtain at the face for every cut besides the initial TflushU cut. 

9

 In mining terms, the wall of an entry is known as the Trib.U (See, e.g., Tr. 60:24`61:3.) 

The junction point between the entryjs rib and ceiling is known as the Trib line.U (See Tr. 86:10`

86:23, 88:19`89:3, 90:3`4, 134:24`135:1.) When an operator mines its perpendicular crosscuts, 

it necessarily cuts into the entryjs rib. (See Tr. 86:10`86:23.) Although the entryjs rib has been 

mined, the rib line forms the intersection point of an entry and a crosscut. 

37 FMSHRC Page 621
Standard 75.370(a)(1) was cited 21 times in two years at [Mach #1 

Mine] (21 to the operator, 0 to a contractor[)]. 

(Ex. G`2.) Ramsey designated the citation as S&S and indicated that it would affect one miner. 

(Id.) In addition, he characterized Machjs negligence as moderate (rather than high) because he 

was unsure whether anyone from Mach was aware of the missing line curtain. (Ex. G`2; 

Tr. 47:24`49:1, 50:5`10.) Ramsey did not take an air reading at the cut or measure the direction 

of air at that time. (Tr. 100:1`101:10.) Finally, Mach installed a ventilating line curtain at the 

face to abate the citation. (Ex. G`2; Tr. 43:11`12.) 

B. Violation of 30 C.F.R. § 75.370(a)(1)

 

This case turns on whether Machjs ventilation plan required Respondent to install a 

ventilating line curtain to direct fresh air to the continuous miner for every cut.10 According to 

the Secretary, Machjs 2008 Plan TunambiguouslyU required Mach to maintain a line curtain 

within forty feet of the face for all cuts. (Secjy Br. at 10`11.) Based on Inspector Ramseyjs 

observations, the Secretary argues that Mach violated its approved ventilation plan when it 

mined into the crosscut without a line curtain. (Id.) In contrast, Mach contends that no line 

curtain is required for the first forty-foot TflushU cut. (Respjt Br. at 8`9; Respjt Reply at 4`6.) In 

addition, Respondent claims that Inspector Ramseyjs testimony highlighted ambiguity in the 

planjs provision regarding the use of a line curtain on a forty-foot cut. (Respjt Br. at 6`8, 10; 

Respjt Reply at 6.) 

 Looking at the 2008 Plan, the provision explaining the forty-foot cut sequence states that, 

TUsing blowing ventilation[,] the curtain will be no more than 40j from the face.U (Ex. G`13 at 

A4.) Based on the planjs depiction, this provision specifically measures forty feet from the last 

row of bolted roof. (Ex. G`13 at A4.) Despite Respondentjs attempt to create ambiguity about 

 10 At the hearing, the Secretary introduced copies of two different ventilation plans: one 

approved on March 18, 2008 (T2008 PlanU) and another approved, coincidentally, on March 18, 

2011 (T2011 PlanU). (Ex. G`4; Ex. G`13.) The ventilation citation in this case was issued on 

March 22, 2011. (Ex. G`2) It is uncontroverted that Mach did not receive a copy of MSHAjs 

approval until March 26, 2011. (Tr. 54:1`15, 141:7`24, 157:8`12, 158:20`159:6; Respjt Br. at 

5.) According to Respondent, I must therefore determine whether the 2008 Plan or 2011 Plan 

applies. (Respjt Reply at 6.) Given the carefully constructed plan approval process established in 

30 C.F.R. § 75.370, see ICG Knott County, LLC, 35 FMSHRC 2784, 2810`14 (ALJ) (discussing 

the Tcomprehensive processU established by section 75.370 for Tventilation plan proposal, 

approval, and implementationU), and general principles of fair notice, see Ideal Cement Co., 12 

FMSHRC 2409, 2416 (Nov. 1990), it would appear inequitable to enforce the 2011 Plan against 

Respondent. Yet Mach also admits that the 2008 Plan and 2011 Plan contain TsimilarU language 

regarding the provision of a line curtain during a forty-foot cut. (Respjt Br. at 5`6.) The 2008 

Plan states that: TUsing blowing ventilation[,] the curtain will be no more than 40j from the 

face.U (Ex. G`13 at A4.) The 2011 Plan provides: TCurtain setback from face n Maximum 40 

feet when mining crosscuts and entries.U (Ex. G`4 at 13.) Given this admitted similarity, I need 

not determine whether the 2008 Plan or 2011 Plan applies. For ease of discussion, I will focus on 

the 2008 Plan. 

37 FMSHRC Page 622
the treatment of TflushU cuts, Inspector Ramsey credibly testified that TflushU cuts do not differ 

from turning crosscuts. (Tr. 30:3`7.) Moreover, the 2008 Plan does not include any exception for 

TflushU cuts. Thus, the text of the provision unambiguously prohibits an operator from mining 

more than forty feet beyond the last row of bolts without a line curtain. Further, as 

Superintendent Robertson and Foreman Dotson acknowledged, the TfaceU moves as mining 

progresses deeper into the coal seam. (Tr. 133:9`10, 160:3`5.) Accordingly, that provision 

reflects a continuing obligation: as the face moves deeper into the coal seamnand further from 

the line curtainnthe curtain cannot be more than forty feet away from the face. 

Mach might comply with this provision in several ways. For example, Respondent could 

hang a curtain on the last row of roof bolts, which were located approximately two feet from the 

rib line. Mach could then make an eighteen-foot cut on the right-hand side of the crosscut, an 

eighteen-foot cut on the left-hand side, a twenty-foot cut on the right-hand side and a twenty-foot 

cut on the left-hand side. Alternatively, Mach could hang a line curtain twenty feet from the rib 

line, make an eighteen foot cut on the right and left side, then rehang its line curtain at the last 

row of bolts, then make twenty-foot cuts on the right and left side. 

What would not work is precisely what Mach did in this case: a cut sequence that extends 

forty-two or forty-three feet beyond the rib line without a line curtain. Notwithstanding any 

seemingly conflicting testimony on the part of Inspector Ramsey, see discussion infra Part V.D.,

the unambiguous text of the 2008 Plan precludes Mach from cutting more than forty feet beyond 

the last row of bolts without a line curtain. Here, the coal face was located more than forty feet 

away. Machjs cut into the coal seam exceeded the plan requirement by two or three feet. No line 

curtain had been provided at any time. Thus, I conclude that Machjs failure to comply with this 

provision of its 2008 Plan constitutes a violation of 30 C.F.R. § 75.370(a)(1). 

C. S&S and Gravity

Respondentjs ventilation plan violation has established the first element of the Mathies

test for S&S. In addition, Inspector Ramsey described the explosion and dust hazards to which 

this violation would contribute. (Tr. 23:9`13, 34:6`35:2, 35:25`36:20, 44:1`14, 45:22`47:23.) 

Ramsey is an experienced inspector who had inspected Mach #1 Mine many times. (See

Tr. 19:7`23:1.) Given his experience, his testimony is entitled to significant weight on this point. 

See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278`79 (Dec. 1998) (relying on the 

opinion of an experienced inspector to conclude that substantial evidence supported an ALJjs 

S&S determination). Thus, I determine that the Secretary has also met his burden of proving 

Mathiesj second element. 

However, Mach contends that the Secretary has not met his burden of proving that this 

violation was S&S because there was no Treasonable likelihood of a reasonably serious injury.U 

(Respjt Br. at 11.) Mach notes that Inspector Ramsey did not take an air reading in Crosscut No. 

10, that more than 39,000 C.F.M. of air was reaching the return entry, and that the methane 

levels did not exceed 0.3 percent. (Respjt Br. at 11; Respjt Reply at 8`9.) In addition, Mach 

argues that its methane detection and dust suppression measures reduce the likelihood of injury. 

(Respjt Br. at 11; Respjt Reply at 9`10.) Mach also notes that Ramsey did not observe miners 

working in suspended dust. (Respjt Reply at 9.) Finally, Respondent claims that the miner 

37 FMSHRC Page 623
operator would have hung a line curtain before the next cut. (Respjt Br. at 11; Respjt Reply at 9`

10.) 

 Nevertheless, the record before me demonstrates that these hazards were reasonably 

likely to result in reasonably serious injuries. Here, Inspector Ramsey credibly testified that he 

did not need to take an air reading at the intersection of Entry No. 3 and Crosscut No. 10 because 

he did not dispute that approximately 39,000 C.F.M. was present at the intersection. (Tr. 72:22`

73:20.) Instead, he was concerned with what would happen without a curtain to direct that air to 

the face as required by the ventilation plan. (Tr. 73:19`20.) Without the missing line curtain 

directing air toward the face, he indicated that very little fresh air would reach the farthest 

reaches of Machjs forty-foot cut. (Tr. 39:15`41:7, 42:16`22; 72:22`73:7, 100:17`101:10; 

Ex. G`15.) Rather than sweeping the face, the air would short-circuit before reaching the deepest 

part of the cut. (Tr. 42:16`21, 72:22`73:7, 100:17`101:10; Ex. G`15.) In addition, Ramsey 

indicated that TsparksU from the mining process provided an ignition source for any 

accumulating methane. (Tr. 43:17`25.) He also explained that coal dustnwhich lowers the 

explosive range for methane ignition and contributes to lung diseasenwas present when he 

arrived at the crosscut. (Tr. 34:21`35:21, 44:23`45:2, 45:20`46:1, 107:22`108:5.) 

Respondentjs emphasis on secondary safety devices, the low level of methane, and 

Machjs periodic methane checks is inapposite. The Commission has repeatedly rejected operator 

arguments that additional safety measures prevent an S&S finding. Big Ridge, Inc., 35 FMSHRC 

1525, 1529 (June 2013); Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369`70 (Oct. 2011), 

aff>d, Cumberland Coal Res. v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); see also Buck Creek 

Coal, 52 F.3d at 136 (TThe fact that [Respondent] has safety measures in place to deal with a fire 

does not mean that fires do not pose a serious safety risk to miners. Indeed, the precautions are 

presumably in place . . . precisely because of the significant dangers associated with coal mine 

fires.U) Thus, I accord little weight to the presence of the scrubber, water sprays, and methane 

monitor in my S&S analysis. 

Moreover, Machjs emphasis on the relatively low concentration of methane and coal dust 

is similarly misplaced. An S&S analysis is not a mere snapshot. See, e.g., Knox Creek Coal 

Corp, 36 FMSHRC 1128, 1132 (May 2014) (indicating that a Judge erred when he took a 

Tosnapshotj approachU to the S&S analysis). Instead, the analysis examines the likelihood of 

injury in the context of continued mining operations. Although the methane concentration may 

have been relatively minor at the time Ramsey wrote the citation, he credibly testified that Mach 

#1 Mine was a gassy mine that released more than 1,000,000 cubic feet of methane every 

twenty-four hours.11 Notwithstanding Machjs periodic methane checks and Superintendent 

Robertsonjs testimony that Tnormally five to six-tenths [of methane] is the most [he had] ever 

seenU on miner units (Tr. 151:18`20 (emphasis added)), Mach #1 Minejs high rate of methane 

liberation would allow methane concentrations to build rapidly. In addition, Ramsey specifically 

 11 Mach suggests in its reply brief that its Ttotal methane liberation for purposes of 

placing the mine on spot inspection is calculated using the gob, which was created from several 

longwall panels.U (Respjt Reply at 9.) Thus, it appears Mach hopes I will infer that the rest of 

this mine releases relatively little methane. Yet it is unclear why that would be the case or how to 

quantify the impact of the gob. I therefore decline to draw any such inference. 

37 FMSHRC Page 624
testified that he saw dust in the crosscut. Although he did not see miners working in the dust, it is 

reasonably likely that this dust would accumulate without proper ventilation. As mining 

activities continued, Respondentjs miners therefore would be reasonably likely to work in the 

dust. This dust would simultaneously lower the explosive range for concentrated methane and

expose miners to dust inhalation injuries. 

 

Lastly, dust inhalation and methane explosions are among the most dangerous hazards 

that miners face, and I do not doubt that any resulting injuries would be reasonably serious. As 

Inspector Ramsey noted, dust inhalation can lead to debilitating and fatal lung diseases. 

(Tr. 35:3`24.) Moreover, Ramsey indicated that methane ignitions can lead to burns. (Tr. 45:3`

14.) I therefore conclude that the Secretary has proven Mathiesj third and fourth elements. 

 In view of the above, the Secretary has met his burden of proof on all four elements of 

Mathies. Accordingly, I conclude that Citation No. 8424601 was appropriately designated S&S. 

D. Negligence

Based on my review of the 2008 Plan, I have determined that the unambiguous language 

requires a line curtain within forty feet of the face on every cut. See discussion supra Part V.B. 

Thus, Ta reasonably prudent person familiar with the protective purpose of the standardU would 

have ascertained the meaning of the provision. See Mach Mining, LLC, 35 FMSHRC 2937, 2942 

(Sept. 2013) (describing the factors an Administrative Law Judge should consider in determining 

whether an operatorjs good faith belief that its conduct complied with regulations was also 

objectively reasonable). Based on the text of the provision, Mach reasonably should have known 

that its failure to provide a line curtain during the flush cut did not comply with its plan 

provision. This is a serious violation that could expose the miner operator to methane explosion 

and dust inhalation hazards in the course of continued mining operations. Respondentjs conduct 

did not comport with the high standard of care the Mine Act requires, and it acted negligently 

when it failed to install the required line curtain. 

In the Secretaryjs posthearing brief, he asks that the negligence designation for Citation 

No. 8424601 be increased from TmoderateU to Thigh.U (Secjy Br. at 14.) The Secretary notes that 

Inspector Ramsey initially designated Respondentjs negligence as TmoderateU because he 

believed Machjs Tforeman was not actually aware of the condition.U (Id.) Pointing to testimony 

from Foreman Dotson and Superintendent Robertson, the Secretary states Tthe failure to 

maintain a ventilation curtain within 40 feet of a [oflushj] cut was a deliberate and ongoing 

practice.U (Id. at 15.) Thus, the Secretary now claims Machjs level of negligence was high. 

The Secretary apparently believes that the foremanjs knowledge of the condition is the 

only factor bearing on negligence in this case. (See Secjy Br. at 16`17 (citing cases regarding 

negligence and supervisor knowledge).) But supervisor knowledge is only one piece of the 

negligence analysis. See, e.g., Mach Mining, LLC, 35 FMSHRC at 2941`43 (indicating an 

operatorjs objectively reasonable, good faith belief that its conduct complied with regulations 

constitutes a mitigating factor). MSHAjs prior interpretations and enforcement are also properly 

considered as mitigating factors. See Sierra Rock Prods., Inc., 37 FMSHRC __, slip op. at 4`5, 

37 FMSHRC Page 625
No. WEST 2010-1390-RM et al. (Jan. 13, 2015); U.S. Steel Mining Co., 15 FMSHRC 1541, 

1547 (Aug. 1993). 

Here, Dotson and Robertson each credibly testified that Respondent employed this 

mining process for flush cuts as a matter of course. The 2008 Plan was in effect for three years. 

Mach had completed hundreds of flush cuts. Given the length of time and the frequency with 

which Mach employed this flush-cut system, it is reasonable to infer that an inspector would 

have observed this process at some point during MSHAjs regular visits to the mine. Yet, it 

appears MSHA never issued a similar flush-cut citation in the three years the 2008 Plan was in 

effect. (See Tr. 126:1`9.) Despite his opportunity to present rebuttal testimony and evidence, the 

Secretary neither disputed the consistency of Machjs mining process nor presented evidence of 

similar citations for engaging in this process. 

If anything, the record in this case suggests that MSHAjs enforcement may have 

hindered, rather than helped, the proper implementation of this plan provision. For example, 

Inspector Ramsey had some difficulty explaining the provision at issue. Notwithstanding the 

unambiguous text of Machjs ventilation plan, Ramsey initially appeared to testify that a line 

curtain was not necessary for the first twenty feet of a flush cut. (Tr. 74:24`76:8, 82:15`24.) 

Later, he clarified his testimony: although the plan did not specifically require a line curtain for 

the first twenty feet of a cut, Mach would need to provide a curtain within twenty feet of the face 

at the beginning of a cut to ensure it complied with the overall forty-foot requirement after it 

completed this initial twenty-foot cut. (See Tr. 165:21`176:16.) Having heard Ramseyjs initially 

muddled explanation firsthand, I can easily envision how a listener might incorrectly surmise 

that no line curtain was necessary during a flush cut in spite of the otherwise unambiguous text 

of the provision. I can likewise envision over the course of three years a similarly contradictory 

explanation from MSHA reinforcing Machjs misguided interpretation in this case. 

In one sense, Machjs repeated and long-running application of a plan interpretation that is 

objectively unreasonable highlights the extent of Respondentjs negligence. But in another, it 

suggests that MSHA unintentionally reinforced Machjs long-held interpretation. After three 

years and hundreds of cuts, it is unsurprising that Mach may have interpreted MSHAjs silence as 

validation. Although Mach has the primary responsibility for the health and safety of its miners, 

MSHAjs seemingly nonexistentnor, at least, inconsistentnenforcement of this plan provision 

somewhat mitigates Machjs negligence in this case. See 30 C.F.R. § 100.3(d) at Table X 

(characterizing negligence as moderate where mitigating circumstances are present). 

Accordingly, I conclude that the Secretary has not demonstrated a ThighU level of negligence in 

this case. 

Given the above, I determine that Machjs negligence in this case was moderate. 

37 FMSHRC Page 626
VI. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAWB

ROOF BOLTER VIOLATIONSBCITATION NOS. 8444918, 8444919, AND 8444920

A. Additional Findings of Fact

 On November 27, 2012, Inspector Lee visited Mach #1 Mine to conduct inspections and 

sample dust pumps on the mining units. (Tr. 186:2`15; Ex. G`7 at 1.) After traveling to the 

No. 2 section of the mine, Lee examined the dust collection system on Machjs #4 Fletcher roof 

bolter. (Tr. 211:9`21; Ex. G`7 at 1, 6.) 

Machjs roof bolting machines include dust collection systems. See discussion supra Part 

III. Acting like a large vacuum cleaner, the dust collection systems on Machjs roof bolters suck 

dust away from the drill potnwhich is the part of the machine that drills into the roofnand into 

a large hose. (Tr. 201:3`202:13, 208:5`16, 246:16`248:11; Ex. G`11; Ex. G`16; Ex. G`17.) The 

hose weaves through the body of the machine and eventually connects to a sealed dust box. (Tr. 

208:5`16; 210:9`12, 246:16`21; Ex. G`11; Ex. G`16; Ex. G`17.) At junction points along the 

hose, clamps are used to help ensure a secure connection. (Tr. 189:18`22, 190:9`25, 194:2`5, 

197:1`4, 197:20`198:13, 199:21`200:11, 208:17`23; Ex. G`11; Ex. G`16; Ex. G`17.) Inside the 

dust box, the roof bolter then sucks the dust-filled air through a replaceable dust filter. (Ex. G`

11; Ex. G`16; Ex. G`17; Ex. R`5.) 

This cylindrical filter consists of paper-like filter material and is hollow on the inside to 

allow air to pass through it. (Tr. 203:2`8, 248:12`24; Ex. R`4; Ex. R`5.) The filter material is 

encased in a metal framework. (Tr. 203:2`8, 248:12`14; Ex. R`4; Ex. R`5.) Throughout the 

outer body of the filter, this metal casing is a woven-wire mesh that allows air to reach the paperlike filter. (Tr. 203:2`8, 204:18`205:3, 248:12`14; Ex. R`4; Ex. R`5.) On each flat end of the 

cylindrical filter, the framework is solid metal, and one of these ends contains a gasket to ensure 

a secure seal with the dust box. (Tr. 203:2`8, 203:24`204:12, 252:23`256:1; Ex. R`4.) When 

functioning properly, the filter makes an airtight seal that releases now-filtered air from the roof 

bolterjs muffler. (Tr. 201:3`202:2; 203:9`17, 222:2`9, 282:8`283:4.) Given the dual drill pots 

on Machjs roof bolters, they include two dust boxes and two filters. (Ex. G`16; Ex. G`17.) 

Because certificates of approval from MSHA are required for dust collection systems, see 

generally 30 C.F.R. part 33 (discussing permissibility and approval of dust collection systems), 

manufacturers of roof bolters work closely with MSHA when designing their machines. 

(Tr. 194:13`195:7, 235:7`9.) Thus, manufacturers submit design plans to MSHA. (Tr. 193:17`

194:1, 195:24`196:6, 233:21`24, 234:23`235:5.) An MSHA technical support group in 

Triadelphia, West Virginia oversees the approval process and issues certificates for approved 

systems. (Tr. 196:7`19, 232:12`18.) 

During Leejs November 27 inspection, he observed that the bolterjs hose was connected 

to the drill pot. (Tr. 211:9`21; Ex. G`7 at 6.) However, he noticed that the clamp securing the 

hose to the left drill pot was not in use. (Tr. 211:9`21, 242:20`243:5; Ex. G`7 at 6.) 

37 FMSHRC Page 627
Based on his observations, Inspector Lee issued Citation No. 8444918, providing: 

The dust collection system on the roof bolter was not being 

maintained in a permissible, and operational condition. The suction 

hose for the left drill pot was not secured to the drill pot[j]s union 

where the hose is attached. This condition was observed on the #4 

roof bolter in Main East [No 2] working section, MMU 002. 

Standard 72.630(b) was cited 13 times in two years at [Mach #1 

Mine] (13 to the operator, 0 to a contractor). 

(Ex. G`6.) To abate the citation, Mach installed a hose clamp. (Id.) 

 Lee continued his inspection of Mach #1 Mine on November 28 and traveled to the Head 

Gate 6 area of the mine. (Ex. G`10 at 1.) He again examined the dust collection systems on 

Respondentjs roof bolting machines. (Tr. 218:9`12; Ex. G`10 at 5`6.) First, he examined 

Machjs #3 roof bolter. (Tr. 218:13`19; Ex. G`10 at 5`6.) Again, he observed that a clamp had 

not been used to secure the control systemjs hose to the left drill pot. (Tr. 218:20`219:23, 

244:14`16; Ex. G`10 at 5.) In addition, he inspected the filters inside the dust control boxes and 

found that the filters showed small indentations and TdingsU from when Machjs machine 

operator struck them against a metal object to clean them rather than replace them. (Tr. 220:7`

17, 262:4`19, 281:5`22; Ex. G`10 at 5.) Given his observations, Lee issued Citation No. 

8444919, providing: 

The dust collection system on the roof bolter was not being 

properly maintained in permissible condition. The filters in both 

dust boxes were damaged and showed signs of being struck against 

an object[,] creating indentations in the mesh and ends of the 

filters. Also, the left suction hose was not secured to the left drill 

pot. This condition was observed on the [#3] roof bolter located in 

Head Gate 6, MMU 003. 

Standard 72.630(b) was cited 14 times in two years at [Mach #1 

Mine] (14 to the operator, 0 to a contractor). 

(Ex. G`8 at 1.) Mach installed new filters to abate the citation.12 (Id. at 2; Ex. G`10 at 6.) 

 That same day, Lee also inspected Respondentjs #1 roof bolter in the same section of the 

mine. (Ex. G`10 at 1, 6.) Again, he examined the bolterjs dust collection system. (Id. at 6.) He 

again found indentations in the bolterjs dust filters. (Id.) Based on his inspection, he issued 

Citation No. 8444920, providing: 

The dust collection system on the roof bolter was not being 

properly maintained in permissible condition. The filters in both 

 12 Lee did not explain how Respondent abated the clamp deficiency on the #3 bolter. 

37 FMSHRC Page 628
dust boxes were damaged and showed signs of being struck against 

an object[,] creating indentations in the mesh and ends of the 

filters. This condition was observed on the #1 roof bolter located in 

Head Gate 6, MMU 003. 

Standard 72.630(b) was cited 14 times in two years at [Mach #1 

Mine] (14 to the operator, 0 to a contractor). 

(Ex. G`9.) To abate the citation, Mach again installed new filters. (Id.) 

B. Violation of 30 C.F.R. § 72.630(b)

 The Secretary contends that Citation Nos. 8444918, 8444919, and 8444920 constitute 

violations of section 72.630(b) because Machjs roof bolterjs were not in permissible or operating 

condition. (Secjy Br. at 21.) However, Inspector Lee admitted at the hearing that all three roof 

bolters were in operational condition at the time of his inspection. (Tr. 242:20`243:12, 244:12`

245:1, 262:20`264:6.) Based on Leejs testimony, I conclude that each roof bolter was capable of 

Toperforming . . . its regular functionjU of Toabsorb[ing] air contaminated with dust at the drill 

head, filter[ing] and contain[ing] the dust before it reache[d] the clean side of the system, and 

produc[ing] clean air on the return side of the machine.jU (See Secjy Br. at 21 (quoting Liggett 

Mining, LLC, 33 FMSHRC 1702 at 1714).) Accordingly, this case turns on whether the Secretary 

has met his burden of proving that the roof bolters in question were permissible under 30 C.F.R. 

§ 72.630(b). 

Permissibility in the context of dust collection systems requires the Secretary to 

demonstrate that the system was not maintained as it had been approved. See discussion supra

Part IV.B. In this case, the Secretary presented testimony from Inspector Lee, as well as 

schematics depicting roof bolters similar to the roof bolters Respondent employed at the Mach 

#1 Mine. (Ex. G`16; Ex. G`17.) In addition, the Secretary introduced portions of a recent 

manual for the roof bolting machines at issue. (Ex. G`11.) I admitted the manual for the purpose 

of understanding the parts of a roof bolter. However, I refused to admit the manual for the 

written guidance it included because the manual clearly states TRevised 7/2013U on its cover 

page, which is more than eight months after Lee issued the citations before me. 

Thus, the Secretary must depend on Inspector Leejs testimony for the proposition that 

MSHAjs approval required securing clamps and placing new filters in the dust collection 

systems at issue. (Secjy Br. at 22`25; see Tr. 189:18`24, 193:17`194:12, 197:1`25, 206:12`14, 

219:25`221:9.) I note that Lee is an experienced miner and inspector who is familiar with dust 

collection systems on roof bolting machines. (Tr. 183:4`186:1.) In addition, his testimony 

appears somewhat sensible on its face. MSHA drafted section 72.630 to protect miners, and it 

seems sensible that the agency might require miner operators to apply clamps and replace filters 

rather than cleaning them. 

Yet, looking closely at the Secretaryjs actual evidence, I note that Lee provided no 

foundation for his testimony regarding the approved condition of these roof bolters. See Fed. R. 

Evid. 602 (requiring witnesses to testify based on personal knowledge). Although Lee has many 

37 FMSHRC Page 629
years of experience working in and inspecting mines, he has never worked in MSHAjs approval 

office in Triadelphia or participated in the approval process. (Tr. 232:9`23.) He also has never 

reviewed the plans the manufacturer submitted to MSHA for approval of the roof bolters in 

question. (Tr. 233:17`234:22, 235:10`24.) Instead, he relied on his review of manuals he 

received from the manufacturer to form his opinions. (Tr. 205:6`9; 234:7`22.) Without 

knowledge of the approval process and final resultsnor even hearsay testimony about his 

conversations with MSHA officials in TriadelphianI cannot credit Leejs testimony on this 

point. 

Moreover, I cannot follow Judge Zielinskijs approach in Tri County Coal. Cf. 34 

FMSHRC at 3275 (T[T]he certificate of approval would not have been issued for a system with a 

hole in the vacuum hose.U) Although it is implausible that MSHA would approve a dust control 

system with a hole in its hose, MSHA might approve a system that included optional clamps and 

reusable filters as long as the systemjs effectiveness had not been compromised. Here, it is 

uncontroverted that the dust control systems were providing adequate suction. Accordingly, it is 

the Secretaryjs burden to prove that MSHAjs approval required that the clamps be affixed and 

the filters changed rather than cleaned and reused as long as they remained functional. 

This case is problematic. I believe Lee testified truthfully as to what he assumed MSHA 

had approved. His testimony appears sensible and may even be accurate. I am cognizant of the 

serious danger that respirable dust presents, and I understand the Secretaryjs diligence in 

enforcing his provisions. Judges must be circumspect about the evidence before them, but I 

recognize that a Tsee no evilU approach that discounts common sense does not serve the health 

and safety interests of miners. It is a fine line between healthy circumspection and suspension of 

disbelief, and this case places that line in sharp relief. 

But the Secretaryjs diligence in enforcement must be matched by his diligence in 

prosecution. Here, the Secretary presented no evidence demonstrating what was included in that 

approval. Lacking any sort of approval documents, contemporaneous manuals, or other 

indications of the condition in which MSHA approved the roof bolter, the Secretary has not met 

his burden in this case. I cannot infer that clamps and new filters were required for permissibility 

merely because Inspector Leejs testimony seems sensible. To do so would substitute a plausible 

theory for actual evidence. Based on the uniquenand ultimately deficientnrecord before me, I 

determine that the Secretary has failed to demonstrate by a preponderance of the evidence that 

the three roof bolters in this case were not being maintained in permissible condition. 

 In view of the above, I can only conclude that the Secretary has not proven that the cited 

conditions violated 30 C.F.R. § 72.630(b). Accordingly, Citation Nos. 8444918, 8444919, and 

8444920 are hereby VACATED. 

VII. PENALTY AND ORDER

Although the Secretary proposes penalties, the Commission assesses penalties for 

violations of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 

2000). When assessing a civil penalty, section 110(i) of the Mine Act requires that I consider six 

criteria, including: the operatorjs history of previous violations, the appropriateness of the 

37 FMSHRC Page 630
penalty relative to the size of the operatorjs business, the operatorjs negligence, the penaltyjs 

effect on the operatorjs ability to continue business, the gravity of the violation, and the 

demonstrated good faith of the operator in attempting to achieve rapid compliance. 30 U.S.C. 

§ 820(i). The criteria are not required to be given equal weight. Jim Walter Res., Inc.,

36 FMSHRC at 1979. 

In the case before me, I vacated Citation Nos. 8444918, 8444919, and 8444920 and 

affirmed Citation No. 8424601 as written. I have concluded that Citation No. 8424601 was 

sufficiently grave to be characterized as S&S and that Machjs level of negligence was moderate. 

Looking at the violation history report for Mach #1 Mine, I note that nine section 104(a) citations 

for violations of 30 C.F.R. § 75.370(a)(1) became final orders in the twenty months prior to 

Citation No. 8424601. (Ex. G`1.) Five of those violations were designated as S&S. As I 

previously noted, none of these prior violations under section 75.370(a)(1) were shown to have 

involved the type of TflushU cut violation at issue in Citation No. 8424601. 

In addition, the parties stipulated that the Secretaryjs proposed penalties will not affect 

Respondentjs ability to continue in business and that Mach demonstrated good faith in abating 

the violations. (Ex. G`12 at 2.) The parties also stipulated that Mach #1 Mine produced nearly 

six million tons of coal in 2010 and more than seven million tons of coal in 2012. (Id.) 

Moreover, the minejs controlling parent produced more than 8 million tons of coal in 2010 and 

nearly 11 million tons of coal in 2012. (Id.) Although I am not bound by the Secretaryjs penalty 

criteria, I note that his regulations characterize Machjs levels of production on the high end 

relative to its competitors. See 30 C.F.R. § 100.3(b) at Tables I & II. I therefore determine that 

the Secretaryjs proposed penalty appears appropriate for the size of Machjs business. In 

considering all of the facts and circumstances of this matter, I determine that the Secretaryjs 

proposed penalty of $2,900.00 is appropriate in this case. 

In light of the foregoing, it is hereby ORDERED that Citation No. 8424601 be 

AFFIRMED as written and that Citation Nos. 8444918, 8444919, and 8444920 be VACATED. 

Mach Mining, LLC, is ORDERED to PAY a civil penalty of $2,900.00 within forty days of the 

date of this decision. 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Daniel R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez 

Memorial Bldg., 1244 Speer Boulevard, Suite 515, Denver, CO 80204-3516 

Christopher D. Pence, Esq., Hardy Pence, LLC, P.O. Box 2548, Charleston, WV 25329-2548 

/pjv 

37 FMSHRC Page 631
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 18, 2015 

DECISION

Appearances: Edward Hartman, U.S. Department of Labor, Office of the Solicitor, 

Chicago, Illinois for the Secretary; 

Mark E. Heath, Spilman, Thomas & Battle, Charleston, West Virginia for 

Knight Hawk Coal. 

Before: Judge Miller 

These cases are before me on notices of contest filed by Knight Hawk Coal, LLC, and 

petitions for assessment of civil penalty filed by the Secretary of Labor, Mine Safety and Health 

Administration (TMSHAU) against Knight Hawk pursuant to sections 105 and 110 of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820. These dockets involve one 

104(a) citation and one 104(d)(1) citation, with a total proposed penalty of $78,209.00. Prior to 

the hearing, the parties reached a settlement regarding Citation No. 8448666. The settlement was 

read into the record and is addressed below. The parties presented testimony and evidence 

regarding the one remaining citation, Citation No. 8439096, at a hearing held on January 28, 

2015 in St. Louis, Missouri. 

KNIGHT HAWK COAL, LLC, 

 Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

KNIGHT HAWK COAL, LLC, 

 Respondent. 

 CONTEST PROCEEDINGS 

Docket No. LAKE 2014-120-R 

Citation No. 8448666; 11/14/2013 

Docket No. LAKE 2014-121-R 

Citation No. 8439096; 11/14/2013 

Mine: Prairie Eagle South Underground 

Mine ID: 11-03205 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2014-575 

A.C. No. 11-03205-351829 

Docket No. LAKE 2014-647 

A.C. No. 11-03205-355399 

Mine: Prairie Eagle South Underground 

37 FMSHRC Page 632
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Knight Hawkfs Prairie Eagle South mine is a large underground coal mine located near 

Sparta, Illinois. At hearing, the parties stipulated to the jurisdiction of MSHA and the 

Commission. Knight Hawk Prehearing Report 6-7. Further, the parties stipulated that the mine 

timely, and in good faith, abated the violation, and that the proposed penalty will not hinder its 

ability to continue in business. Id. Furthermore, the parties stipulated that T[a]t the time of the 

accident on February 13, 2013, the decedent, Timothy Chamness, was remotely operating the 

Joy Continuous Mining Machine . . . in the jred zone,f in violation of 30 C.F.R. 75.220(a)(1)[,]U 

and that the violation, which resulted in a fatality, was significant and substantial. Id. Finally, 

the parties agreed that pages 6 and 10 of the minefs roof control plan contain the red zone 

provisions at issue. Secfy Ex. 3 pp. 6, 10. 

Based upon the parties stipulations, my review of the entire record, my observation of the 

demeanor of the witnesses, and after consideration of all evidence and the post-hearing briefs, I 

find that the violation and S&S designation are appropriate, that the negligence is high, as 

alleged, and that the violation is a result of the operatorfs unwarrantable failure to comply with 

the standard. 

Citation No. 8439096 

Citation No. 8439096 was issued by Inspector Harry Wilcox on November 14, 2013 

pursuant to section 104(d)(1) of the Act for a violation of 30 C.F.R. § 75.220(a)(1). The citation 

alleges that the mine violated its approved roof control plan by failing to ensure that its 

employees did not work or travel in the red zone around the remote controlled continuous miner. 

Wilcox determined that the condition resulted in a fatal injury, was S&S, affected one person, 

and was a result of high negligence and the minefs unwarrantable failure to comply with the 

mandatory standard. The Secretary proposed a specially assessed civil penalty in the amount of 

$70,000.00 for this alleged violation. 

 On February 13, 2013, Timothy Chamness, the operator of a remote controlled 

continuous mining machine, was killed in the No. 1 entry when he became pinned between the 

conveyor tail of a continuous mining machine and the right rib of the entry while repositioning 

the continuous mining machine from the third cut to the fourth cut at the No. 1 face. Following 

the fatality, the Secretary conducted an accident investigation and generated an accident report, 

which included a diagram of the accident scene. Secfy Ex. 2 Appendix B. As a result of the 

accident, Inspector Wilcox issued the citation and alleged a failure to follow the approved roof 

control plan, which required that T[n]o one shall be in the red-zone when continuous miners are 

being trammed from place to place or being re-positioned in the working place.U Secfy Ex. 3 p. 

6. The citation was terminated when the operator submitted, and MSHA approved, revisions to 

the roof control plan. 

In order for the Secretary to prove a violation of section 75.220(a)(1) he must, first, 

establish that the provision allegedly violated is part of the approved and adopted plan, and, 

second, that the condition cited actually did violate the plan provision. Harlan Cumberland Coal 

Co., 20 FMSHRC 1275, 1280-1281 (Dec. 1998) (citing Jim Walter Resources, Inc., 9 FMSHRC 

37 FMSHRC Page 633
903, 907 (May 1987)). Knight Hawk has stipulated that, at the time of the accident, the 

continuous mining machine operator was operating the piece of equipment contrary to the minefs 

approved roof control plan and, therefore, in violation of section 75.220(a)(1). 

Knight Hawk has stipulated that a fatal accident occurred and that the S&S designation is 

appropriate. A Tsignificant and substantialU violation is described in section 104(d)(1) of the 

Mine Act as a violation Tof such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard.U 30 U.S.C. § 814(d)(l). In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its interpretation of 

the term Tsignificant and substantialU to be: 

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. 

 I have found a violation of a mandatory standard based upon the stipulations of the 

parties. As a result of the violation, a miner standing in the red zone was pinned and killed while 

tramming the continuous miner. Based upon the evidence of the accident and the stipulations of 

the parties, I find that the violation is significant and substantial.

Following the accident, Wilcox and others conducted an investigation during which they 

took the statement of Chamnessf supervisor and spoke to six miners who indicated that they had 

seen miners in the red zone. Six of the interviewed individuals indicated that, while they were 

aware of the hazards associated with the red zone, no one at the mine had been disciplined for 

walking or working in the red zone. As a result, and based upon all of the information he learned 

during the course of the accident investigation, Wilcox designated the citation as high negligence 

and an unwarrantable failure to comply with the mandatory standard. 

Negligence 

Each mandatory standard carries with it a duty of care to avoid violations of that standard 

and, if a standard is violated, a finding of negligence is made. A. H. Smith Stone Co, 5 FMSHRC 

13, 15 (Jan. 1983). In this case, MSHA determined that the negligence was high. The Secretary, 

by regulation, defines negligence under the Act as Tconduct either by commission or omission, 

which falls below a standard of care established under the Mine Act to protect miners against the 

risks of harm.U 30 C.F.R. § 100.3(d). High negligence, according to the Secretaryfs regulations, 

occurs when the operator knew or should have known of the violative condition and there are no 

mitigating circumstances. Id. 

The negligence of Chamness in stepping into the red zone cannot be attributed to the 

Respondent for penalty purposes. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1113, 1116 

37 FMSHRC Page 634
(July 1995). However, the fact that an hourly employee committed a violation does not shield the 

mine from being deemed negligent. Rather, in instances such as this, the Commission looks to 

the operatorfs actual or constructive knowledge of the violative condition or practice and its 

supervision, training, and disciplining of its employees. Southern Ohio Coal Co., 4 FMSHRC 

1459, 1464 (Aug. 1982). Here, while there is evidence that was at least one poster and some 

training regarding the red zone was provided, there is also evidence to demonstrate that there was 

a complete lack of competent supervision and discipline. 

Dale Winter, the mine superintendent, testified that the mine includes training on the 

hazards of the red zone in its new miner training, refresher training, and in some of its weekly 

safety meetings. Moreover, the mine has at least one poster warning against the hazards of the 

red zone, and the topic is included in the discussion of the roof control plan. He testified that, just 

a few days prior to Chamnessf death, the mine held a refresher training for all miners, which was 

presumably attended by Chamness, and, during a discussion of the minefs roof control plan, 

there was a PowerPoint presentation which addressed the red zone and the hazards of working in 

the red zone. The training also included Tno goU zones for other pieces of equipment, addressing 

the pinch point areas. Winter explained that approximately 15 minutes of the ten hour refresher 

training was dedicated to red zone issues. The diagrams and illustrations used in the annual 

refresher training were taken from materials provided to the mine by MSHA and primarily relate 

to the red zone of the continuous mining machine. 

William Jankousky, the minefs safety director, agreed with Winter and testified that the 

dangers associated with working in the red zone have been a focus of MSHA over the past years. 

Since red zone violations often result in death, it is a very important topic to discuss with miners 

and, as a result, the mine has provided training on the issue. 

Winter explained that the minefs discipline policy, as it relates to safety issues, calls for a 

verbal warning to a miner who commits an unsafe act. While Winter testified that a repeat or 

aggravated unsafe action could result in a letter of reprimand, a suspension or termination, he 

stated that he looks at repeated conduct on a case-by-case basis and the type of discipline is 

based upon the frequency of the conduct. For example, if he saw someone in a red zone seven 

months after being seen in the red zone previously, he would offer another verbal correction. He 

explained that the mine has a policy of leaving most of the discipline to the foreman, the 

immediate supervisor of the miners. 

During his time at the mine, Winter has been involved in handing down two disciplinary 

actions related to the red zone. The first action occurred in 2009, just after the mine opened, and 

involved an employee backing up a continuous miner who stopped to hook up a cable strap and, 

in doing so, swung the tail and pinched his own arm. While the mine did not agree it was a red 

zone violation and, instead, classified it as an unsafe act near a pinch point, MSHA issued a 

citation for a roof control, red zone violation and, thereafter, Winter issued a letter of reprimand 

to the miner. Knight Hawk Ex. J p. 1. The second incident, in 2011, involved a verbal conflict 

between a surveyor helper and roof bolter operator. There, the roof bolter operator asked the 

helper to get out of the way, and, when the surveyor helper refused, the bolter operator trammed 

the roof bolter toward the helper, placing him in a pinch point area before he moved. The mine 

asserted that this was not a red zone violation pursuant to the roof control plan, and instead was a 

37 FMSHRC Page 635
violation of company policy. The bolter operator was suspended and subsequently discharged for 

intentionally placing a miner in harmfs way. 

 

Inspector Wilcox explained that he interviewed ten miners immediately after the accident 

and, on February 15th, the accident investigation team conducted additional interviews of seven 

of those miners. During the course of the accident investigation, Wilcox was not made aware of 

the two disciplinary actions Winter testified about, or any other action taken where a miner had 

been seen in the red zone. However, during interviews of the miners who worked with 

Chamness, Wilcox learned that each of those miners had observed miners in the red zone. 

Wilcox testified that the seven miners interviewed by the accident investigation team 

were instructed as to the purpose and procedure of the investigation, and were asked if they had 

ever seen anyone in the red zone at this mine. Six of the miners agreed that they had seen other 

miners in the red zone, while one miner refused to answer. Wilcox explained that Richard 

Pasquino, the immediate supervisor of Chamness for the fifteen months prior to the accident, was 

one of the individuals interviewed by the accident investigation team. According to Wilcox, 

Pasquino told MSHA that he had observed Chamness in the red zone several times prior to the 

fatal accident. Although not specifically included in the questioning, Wilcox is certain that, 

because the questions centered on the accident that killed Chamness, the miners who were 

interviewed, including Pasquino were aware that the red zone referred to the area around the 

continuous miner, and that each of them stated that they had seen miners in the red zone. At 

hearing Pasquino denied that he intended his statement to mean the red zone associated with the 

continuous miner. 

Pasquino and Winters both testified that the mine had a broader view of the red zone than 

that of MSHA. Pasquino explained that, at this mine, the term Tred zoneU was applied to every 

piece of equipment, not just the continuous miner, and that given the broad definition, miners 

could find themselves inadvertently in the red zone of a piece of equipment. Pasquino agreed 

that, prior to becoming a supervisor, he observed Chamness in a red zone three different times. 

However, in each of those instances, the red zone was not that of a continuous miner, but rather 

that of a different piece of equipment. Similarly, Pasquino asserted that, after he became a 

supervisor, he observed Chamness in the red zone two times, once on a scoop and once on a roof 

bolter, but not in the red zone of a continuous miner. Pasquino did not mention the incidents to 

Chamness prior to becoming a supervisor, but after becoming his supervisor, he counseled 

Chamness after both red zone incidents, which occurred roughly five months apart. While 

Pasquino acknowledged that the minefs policy probably required both supervisors and rank and 

file miners to report safety violations, he never did so because he felt it wasnft needed. 

Pasquino indicated that he has not disciplined a miner during his time as a foreman and, 

rather, has addressed issues by counseling the offending miner. He acknowledged that the red 

zone is a dangerous area and continuing to work in the red zone can lead to more discipline, and 

eventually termination. He agreed that, if unsafe behavior continued on a weekly or daily basis, 

he may have done more than simply counseling. According to Pasquino, he saw no reason to 

involve the mine superintendent, or anyone else at the mine, in incidents where he counseled 

miners. However, Pasquino could not say if he had a duty to report any known violations to 

someone higher up. 

37 FMSHRC Page 636
I find that, because Pasquino had observed Chamness in the red zone multiple times, and 

had counseled Chamness twice about being in the red zone, he should have known that it was 

likely Chamness would again find himself in the red zone. Accordingly, I discount the testimony 

of both Winter and Pasquino, both of whom said they had no reason to believe Chamness would 

enter the red zone. Respondent failed to take sufficient steps to ensure that the mining machine 

operators, including Chamness, were staying out of the red zone when tramming the continuous 

miner. The mine had a responsibility both to take steps to better ensure that miners were not in 

the red zone and to take more substantial action against Chamness and other miners who were 

seen in the red zone, whether it be the red zone around the continuous miner or other equipment. 

It did neither. In reaching this conclusion I rely in part on the demeanor and attitude of the 

supervisors when discussing the red zone and the practice of counseling employees instead of 

taking some more definitive action to prevent miners from repeatedly entering the red zone, as 

defined by the mine operator or by MSHA. 

 I question whether the miners had the all-encompassing view of the red zone asserted by 

Knight Hawk, or if they understood the red zone as MSHA defines it. Nevertheless, my finding 

is the same in either case. Although Pasquino counseled Chamness twice during his 15 months as 

a supervisor, there is no evidence the Pasquino or anyone else at the mine followed through on 

any disciplinary action, nor is there any evidence that the mine established any specific 

programs, policies or procedures for addressing the red zone or disciplining miners in a way that 

would assure they would not enter the red zone after being observed doing so the first time. 

Knight Hawk argues that, because MSHA did not ask Pasquino during the investigation 

what he understood the term Tred zoneU to mean, and because Pasquinofs accident investigation 

statement, Knight Hawk Ex. R, mentions other pieces of equipment, it cannot be shown that 

Chamness previously entered the red zone of a continuous mining machine. Pasquino testified 

that, during the investigation, when he responded that he had been in a red zone himself, he 

believed MSHA was asking about the red zone in the context of any piece of equipment in the 

mine, and not just the continuous miner. The mine argues that, because this mine defines the red 

zone as the area around not only the continuous miner, but also around other equipment, 

including ram cars and loaders, the miners who spoke with the MSHA investigation team, when 

discussing other miners in the red zone, did not necessarily mean the red zone as it related to a 

continuous miner and, therefore, their statements are of minimal value in this case. 

 The context in which the minersf statements were made, along with the training 

materials and posters that include a continuous mining machine when discussing the red zone, 

lead me to find that most, if not all, of the discussion of the red zone during the investigation, 

related to the red zone as it applied to the continuous miner. The safety meetings covered Tred 

zone/roof controlU on some occasions, or covered, among other things, the roof control plan 

which refers to the red zone around the continuous miner. Further, while the minefs annual 

refresher training materials include diagrams of a Tred zoneU with a continuous mining machine, 

Knight Hawk Ex. H p. 173-174, the diagrams for other pieces of equipment refer to the area as 

the Tno go zoneU. Id. at 176-181. All six miners who spoke to MSHA during the accident 

investigation made it clear that walking in the red zone was not an unusual practice. It follows 

that at least a portion of those occurrences were in the red zone area associated with the 

continuous miner. However, even if I accept that the miners were only seen near equipment other 

37 FMSHRC Page 637
than a continuous miner, it remains that, despite being told not to be in those areas, whether they 

be Tred zonesU or Tno go zones,U miners were observed in those dangerous areas and none were 

disciplined. Accordingly, I find that the minersf statements show that there were no 

consequences when miners did not comply with the minefs policies regarding being in the wrong 

areas around equipment, whether the equipment was a continuous miner or something else. 

The operator defends its lack of discipline by arguing that it was not required to 

discipline miners in the red zone because there was no evidence that, when a miner was seen in 

the red zone, it was the zone around the continuous miner. In essence, the mine argues that, since 

it has expanded the meaning of Tred zoneU beyond the definition MSHA utilizes, it should be 

excused from following policy and disciplining miners for being in the red zone as the mine 

defines it. The mine also asserts that, because its definition of the red zone is expansive, a miner 

could potentially be in the red zone thousands of times each year and therefore miners were 

observed in the red zone a small fraction of the thousands of possible opportunities. Even if the 

argument is based upon fact, it does not make it any less dangerous or any less prohibited to 

enter a red zone, even one time. Knight Hawkfs alleged expanded view of the red zone may in 

fact, dilute the need for extra caution in the red zone around the continuous miner. 

 The mine argues that Chamnessf failure to follow the verbal counseling instructions, to 

stay out of the red zone, are a significant mitigating factor in the negligence analysis. Knight 

Hawk Br. 22 (citing Western Fuel-Utah, 10 FMSHRC 256, 258-262 (Mar. 1998)). I disagree and 

find that the conduct of Chamness was foreseeable, unlike those of the employee in WesternFuels. Accordingly, I reject the minefs argument. 

Based on the above discussion, I find that the mine was highly negligent in its training, 

supervision, and discipline regarding the issue of red zones. While some training was provided 

on the issue, it was essentially of no value and, in this particular instance, I find that it should not 

be considered a mitigating factor. Miners did not follow the training, and the mine did not 

enforce its own policies. The lack of discipline when miners were observed in the red zone 

rendered the training and supervision of those miners meaningless, and ultimately resulted 

Timothy Chamness losing his life after engaging in conduct that the mine knew was likely to 

occur. Accordingly, the Secretaryfs high negligence designation is affirmed. 

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by conduct described as Treckless disregard,U 

Tintentional misconduct,U Tindifference,U or a Tserious lack of reasonable care.U Id. at 2002-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (TR&PU); see also Buck 

Creek Coal, Inc., 52 F.3d 133, 136 (approving Commissionfs unwarrantable failure test). The 

Commission has explained that whether a citation is an Tunwarrantable failureU is a question that 

should be evaluated based on the facts and circumstances in each case, and should be considered 

in light of a number of factors. See Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO 

37 FMSHRC Page 638
Coal Co., 31 FMSHRC 1346 (Dec. 2009). All of the relevant facts and circumstances of each 

case must be examined to determine if an actorfs conduct is aggravated, or whether mitigating 

circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high 

standard of care, another important factor supporting an unwarrantable failure determination is 

the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998) (Commissioner Marks, concurring in part and dissenting in part). Based on the following 

analysis of the factors enumerated by the Commission, I find the violation was a result of the 

minefs unwarrantable failure to comply with the mandatory standard. 

Length of time that the violation has existed. 

In IO Coal Co., 31 FMSHRC 1346 (Dec. 2009) the Commission emphasized that the 

duration of time that the violative condition exists is a Tnecessary elementU of the unwarrantable 

failure analysis. The Commission, in remanding that case, instructed the judge to address the 

duration of the violative roof condition, which was found to have existed for multiple shifts and 

days, and determine if that duration qualified as an aggravating factor. In Coal River Mining, 

LLC, 32 FMSHRC 82 (Feb. 2010), the Commission explained that, even where the record of a 

case does not allow a judge to make a determinative finding with regard to how long a violative 

condition existed, the judge must analyze the element and T[e]ven imperfect evidence of duration 

in the record should be taken into account[.]U While the Commission has found that a duration of 

a Tmatter of secondsU may weigh against an unwarrantable failure finding, it has also held that a 

duration of a few minutes may support an unwarrantable failure finding. Compare Dawes 

Rigging & Crane Rental, 36 FMSHRC __ , slip op. 5 (Dec. 10, 2014) (noting that a miner who 

traveled under a suspended boom was only exposed for a Tmatter of secondsU which in turn 

weighed against a finding of unwarrantable failure), with Midwest Material Co., 19 FMSHRC 30 

(Jan. 1997) (Finding that a judge erred in relying upon the brief duration of the violation when 

vacating the unwarrantable failure designation. Noting that the only reason the duration of the 

violation ended was because a crane boom crushed and killed a miner who should not have been 

working under the boom). 

While it is not entirely clear how long Chamness was in the red zone, here, as in Midwest 

Materials, the duration of the violation ended only because the miner was fatally injured by 

engaging in the exact activity the roof control plan, and in turn the standard, is designed to 

prevent. Even if this violation only existed for a short time, red zone violations can result in 

serious consequences in a short time and have been an ongoing issue at this mine since it opened 

in 2009. 

The Secretary argues that, since the miners had been walking and working in the red zone 

for some time, without any disciplinary action, this element of the unwarrantable analysis is met. 

The mine, on the other hand, argues that miners may have been in a red zone associated with a 

machine other than the continuous miner and, therefore, it cannot be shown that the miners were 

violating the roof control plan on an ongoing basis. 

 I find that, while the violative condition, that is being in the red zone, may have existed 

for a short duration, it is reasonably likely that Chamness would have continued to do so had the 

37 FMSHRC Page 639
fatal injury not brought a stop to him operating the continuous miner. Accordingly, I find that 

this factor weighs in favor of an unwarrantable failure finding. 

Extent of the violative condition. 

In IO Coal Co., 31 FMSHRC 1346 (Dec. 2009), the Commission explained that the 

Textent of the violative condition is an important element in the unwarrantable failure analysis.U 

The Commission has explained that the purpose of this element is to Taccount for the magnitude 

or scope of the violation[,]U and the judge may analyze it by looking at, among other things, the 

Textent of the affected area as it existed at the time the citation was issued[,]U the number of 

persons affected, and the time and resources required to correct the condition. Dawes Rigging & 

Crane Rental, 36 FMSHRC ___ , slip op. 5 (Dec. 10, 2014) (citing E. Associated Coal Corp., 32 

FMSHRC 1189, 1195 (Oct. 2010) and Watkins Eng'rs & Constructors, 24 FMSHRC 669, 681 

(July 2002)); Consolidation Coal Co., 35 FMSHRC 2326, 2331 (Aug. 2013). Moreover, a judge 

should not consider an operatorfs past practices in connection with the extensiveness factor. Id. 

In Dawes the Commission found that, because only one miner endangered himself by walking 

under the suspended boom, the violation was not extensive. Id. 

I agree that, given the number of miners who acknowledged that they had observed others 

in the red zone, the practice of working in the red zone was common. However, the Commission 

emphasizes the violation itself in discussing this factor and, here, there was only one miner 

working in the red zone at the time and it cannot be said that the violation was extensive. 

Accordingly, I find that this factor is not especially instructive in determining whether an 

unwarrantable failure exists. 

Whether the operator has been placed on notice that greater efforts were 

necessary for compliance. 

The Commission has explained that repeated, similar violations, and past discussions with 

MSHA about a problem at the mine may serve to put an operator on notice that increased efforts 

to comply are necessary. IO Coal Co., 31 FMSHRC 1346, 1353-1354 (Dec. 2009). The prior 

violations relied upon to establish notice need not have been a result of an unwarrantable failure, 

nor do those violations need to have involved precisely the same activity, cited standard, or area 

of the mine. Id.; Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); 

Consolidation Coal Co., 35 FMSHRC 2326, 2344 (Aug. 2013). 

The mine argues that it has had only one incident that related to a red zone violation since 

2009, and Knight Hawk disciplined the miner for his involvement in the incident. The incident, 

which occurred shortly after the mine opened in 2009, resulted in a citation for a red zone 

violation after the minerfs arm was pinned by the conveyor on the continuous miner. The history 

of assessed violations provided by the Secretary demonstrates that the mine received one other 

citation for a violation of the roof control plan during the 15 month period prior to the accident in 

February, 2013. Secfy Ex. 14. 

The Commission has explained that its judges may take judicial notice of Textra-record 

information that is not the subject of testimony but is commonly known, or can safely be 

37 FMSHRC Page 640
assumed, to be true.U Union Oil Co. of Ca., 11 FMSHRC 289, 300 n. 8. (Mar. 1989). In addition, 

the Commission has recognized that the existence of, and content in, MSHA public documents is 

subject to judicial notice. Brody Mining, LLC, 36 FMSHRC 2027, 2030 n. 4 (Aug. 2014) (taking 

notice of a report generated by the Department of Laborfs Office of Inspector General); Black 

Diamond Constr. Inc., 21 FMSHRC 1188, 1202 n. 3 (Nov. 1999) (Commissioner Marks 

dissenting on other findings but taking judicial notice of MSHA handbook); Jim Walter 

Resources, 7 FMSHRC 1348, 1355 n. 7 (Sept. 1985)(taking judicial notice of an MSHA policy 

memorandum). 

 

 The witness for the mine, William Jankousky, the corporate safety director, agreed that 

there has been a great deal of emphasis by MSHA on the hazards associated with the red zone. A 

search for the term Tred zoneU on the MSHAfs website returns multiple pages addressing the 

importance of the red zone and the hazards associated with the area. I take notice of the search 

results, which include, among other things, summaries of accidents related to miners who were 

killed in the red zone, guidance on accident prevention which discusses red zone hazards 

associated with remote controlled continuous miners, statistics on fatalities which show section 

75.220(a)(1) as the most cited standard for fatalities, information designed to increase hazard 

awareness among miners operating or working near continuous miners, graphics addressing red 

zone hazards and best practices for operators, and tips for avoiding injuries while operating and 

working near a continuous miner.1

 Moreover, MSHA includes the roof control plan standard, and 

in turn the red zone, in its Rules to Live By as one of the most frequently cited standards in fatal 

accident investigations. Fatality Prevention o Rules to Live By, 

http://www.msha.gov/focuson/Rulesto LiveBy/RulestoLiveByI.asp. 

Clearly MSHA has emphasized to mine operators the seriousness of the red zone. In an 

effort to curtail the many fatalities associated with the red zone, MSHA recently published a final 

rule which will require mines to install proximity detectors on continuous mining machines. 30 

C.F.R. § 75.1732 (Published January 15, 2015 and effective March 16, 2015). Additionally, mine 

inspectors, while at the mine, routinely discuss red zone hazards and the fatalities that have 

occurred as a result of violations of the red zone portion of the roof control plan. Given all the 

information about the dangers of working in the red zone, and the emphasis MSHA places on the 

issue, the operator was on notice, and should have had a heightened awareness in identifying and 

correcting hazards associated with the standard, especially given the testimony that miners at this 

mine were observed working in the red zone on many occasions without consequence. I find that 

this factor weighs heavily in favor of an unwarrantable failure finding. 

 1

 The search results were compiled by searching for the term Tred zoneU on MSHAfs 

website through its TAdvanced SearchU option, available at: 

http://mshasearch.msha.gov/search?access=p&entqr=0&output=xml_no_dtd&sort=date%3AD%

3AL%3Ad1&ie=UTF-8&lr=&client=MSHASearch&ud=1&site=AllDocuments&oe=UTF8&proxystylesheet=MSHASearch&ip=10.2.12.238&proxycustom=<ADVANCED/> 

37 FMSHRC Page 641
OperatorRs efforts in abating the violative condition. 

 

In evaluating the operatorfs efforts in abating the violative condition the judge should 

examine those abatement efforts made prior to the issuance of the citation or order. 

Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31 

FMSHRC 1346, 1356 (Dec. 2009) and Warwick Mining Co. 18 FMSHRC 1568, 1574 (Sept. 

1996)). In Consolidation the Commission, in affirming the unwarrantable failure designation, 

noted the judgefs finding that management did not take steps to remedy the type of condition 

cited despite being aware of a similar condition having been previously brought to their attention 

through the issuance of a citation. 

Here, the mine took some steps to abate red zone issues by providing training to the 

miners. The mine included the issue of the red zones in its new miner training, task training and 

refresher training. Further, the red zone was sometimes a topic of discussion at the weekly safety 

meetings. However, there was little follow-through by the mine when it came to actually 

implementing and enforcing the training. When a miner was observed in a red zone, the incident 

was either not reported to management, or the person who was unlucky enough to be observed 

by a management member only received a counseling. The mine did little to support its 

suggestion that walking and working in the red zone were prohibited practices. Accordingly, I 

find that this factor weighs in favor of an unwarrantable failure finding. 

Whether the violation posed a high degree of danger. 

The Commission has found the high degree of danger posed by a violation to be an 

aggravating factor in support of an unwarrantable failure finding. IO Coal Co., 31 FMSHRC 

1346, 1355-1356 (Dec. 2009). The Commission has acknowledged that, conceivably, the degree 

of danger could be Tso severe that, by itself, it warrants a finding of unwarrantable failure.U 

Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). Moreover, it has noted that a 

violation may be aggravated and unwarrantable where the hazardous nature of a violative 

condition is common knowledge. IO Coal Co., 31 FMSHRC 1346, 1355-1356 (Dec. 2009) 

(citing Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding a violation to 

be an unwarrantable failure based on Tcommon knowledgeU that power lines are hazardous and 

precautions must be taken around them)). Further, when a mine operator ignores a chronic 

problem, the degree of danger and likelihood of something going wrong increases. Consolidation 

Coal Co., 35 FMSHRC 2326, 2343 (Aug. 2013). Furthermore, a high degree of danger may be 

evidenced where a fatal accident occurred as a result of the cited condition or practice. Midwest 

Material Co., 19 FMSHRC 30, 34 (Jan. 1997). 

Knight Hawk concedes, and I find, that the violation in this case certainly posed a high 

degree of danger. The continuous miner operator was killed as a result of the violation. The 

MSHA information provided to all mines demonstrates that working in the red zone is a major 

cause of fatalities in underground coal mines. The hazardous nature of working in the red zone 

was common knowledge, the mine knew the practice was occurring, and yet took no reasonable 

steps to prevent it from occurring in the future. As a result, the likelihood of an accident 

increased and, ultimately, resulted in a fatality. I find that the high degree of danger is an 

aggravating factor in this case. 

37 FMSHRC Page 642
Whether the violation was obvious. 

The obviousness of the violative condition is an important factor in the unwarrantable 

failure analysis. IO Coal Co., 31 FMSHRC 1346, 1356 (Dec. 2009). Moreover, where an 

operatorfs conduct causes a violative condition to not be obvious, the operator cannot assert that 

the lack of obviousness is a mitigating factor in the unwarrantable failure analysis. Consolidation 

Coal Co., 35 FMSHRC 2326, 2343 (Aug. 2013) (citing Eastern Assoc. Coal Corp., 32 FMSHRC 

1189, 1200-01 (Oct. 2010)) (upholding judgefs unwarrantable failure finding where the operator 

deliberately ignored air velocity requirements in the minefs ventilation plan). 

Knight Hawk concedes that the violation was obvious. Certainly the violation was 

obvious the moment Chamness stepped into the red zone. Given the many miners who had been 

observed in the red zone, the mine should have been aware of what had become a common 

practice and taken steps to better identify this type of violative conduct given how obvious it is 

and how easy it is to avoid. 

OperatorRs knowledge of the existence of the violation. 

 

In IO Coal the Commission reiterated the well settled law that, in addition to actual 

knowledge, an operatorfs knowledge of the existence of a violation may be established where the 

operator Treasonably should have known of the violative condition.U IO Coal Co., 31 FMSHRC 

1346, 1356-1357 (Dec. 2009). The Secretary may establish that an operator Treasonably should 

have known of the violative conditionU by showing that the Toperatorfs knowledge of the 

specifics of its operations should have led it to conclude that violation charged would eventually 

occur[.]U Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1199-1200 (Oct. 2010) (citing Emery 

Mining Corp., 9 FMSHRC 1997, 2002-04 (Dec. 1987) and Coal River Mining, LLC, 32 

FMSHRC 82, 92 (Feb. 2010)); Coal River Mining, LLC, 32 FMSHRC 82 (Feb. 2010) 

(remanding the case to the judge with the instruction to consider whether a supervisor reasonably 

should have known, based on knowledge of previous practices at the mine, that the violative 

condition would continue to occur.) 

Here, when Knight Hawk management observed a miner in the red zone it would 

sometimes engage in discussion with the offending miner, but little else was done. Six miners, 

as well as Chamnessf supervisor the night of the fatal accident, agreed that they had observed 

miners in the red zone. Chamness had been observed in the red zone prior to the date of the 

accident and the mine had not taken action to prevent the hazard from re-occurring. Given the 

information learned during the accident investigation, I find that the mine knew, or at the very 

least should have known, that miners continued to walk in the red zone. The fact that miners may 

have had a different view of what constitutes a red zone does not change my finding in this 

regard. No matter what the miners understood the red zone to be, working or standing in the red 

zone area was tolerated. The only disciplinary action taken by the mine against an offending 

miner was a written reprimand in 2009 after MSHA issued a citation for a violation of the roof 

control plan. I do not find the 2011 incident, discussed supra, to be applicable as far as 

disciplinary action is concerned, as it is obvious that the roof bolter intentionally moved his 

machine toward another miner. Nevertheless, that incident does serve to show the attitude of the 

miners toward the red zone. 

37 FMSHRC Page 643
While, as Knight Hawk contends, its roof control violation may have been brief and not 

extensive, under Commission precedent the Secretary satisfies her burden of establishing the 

unwarrantability of a roof control violation where a foreman knew of the violative condition, the 

violation occurred in a mine with a history of persons walking in the red zone, whatever that 

definition may be, and the violation created a hazard characterized by high danger. See Cyprus 

Plateau Mining Corp., 16 FMSHRC 1610 (Aug. 1994). Because all of those elements are present 

here, and based upon my above findings with regard to the unwarrantable failure factors, which 

illustrate the minefs TindifferenceU and Tserious lack of reasonable careU regarding red zone 

issues, I conclude that the violation was a result of the minefs unwarrantable failure to comply 

with the terms of its approved roof control plan and, in turn, the requirements of section 

75.220(a)(1). 

Citation No. 8448666

Citation No. 8448666 was issued by Inspector Terry Hudson on November 14, 2013 

pursuant to section 104(a) of the Act for an alleged violation of 30.C.F.R. § 75.512. The citation 

alleges that the mine failed to maintain a continuous mining machine to assure safe operating 

conditions. Hudson determined that the condition resulted in a fatal injury, was S&S, affected 

one person, and was a result of moderate negligence. The Secretary proposed a civil penalty in 

the amount of $8,209.00 for this alleged violation. Prior to hearing, the parties reached a 

settlement, the terms of which were read into the record. 

The parties propose to reduce the negligence from TmoderateU to Tlow,U with a 

corresponding reduction in penalty, based on points, to $3,074.00. The Secretary submits that the 

negligence is reduced because the location of the damage was such that it was not readily seen 

during the inspection. In addition, the parties further propose to amend the narrative of the 

citation to read as follows: 

The Joy 14CM-15, Serial Number JM6284a, was not being 

maintained to assure safe operating conditions. The machinefs 

trailing cable restraining clamp was located in such a manner that 

it was damaging the machinefs hydraulic valve bank assembly 

wiring. When inspected, five of the solenoid coil control cables 

have been damaged with bare copper conductors showing on two 

of the coil control cables. The damaged control cables were the tail 

swing right and the stab up functions. This indicates that a 

complete and thorough examination was not done as required by 

this section. In addition data from the machinefs on-board 

computer system, along with information gained during the 

interview process, indicate that immediately after the accident, the 

continuous mining machinefs hydraulic system was not 

responding, preventing the tail swing left function from operating. 

(Tr. 10-11). 

37 FMSHRC Page 644
I have considered the proposed modifications and find that they meet the requirements of 

the Act and, therefore, the settlement of Citation No. 8448666 is approved. 

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 110(i) 

of the Mine act delegates to the Commission and its judges Tauthority to assess all civil penalties 

provided in [the] Act.U 30 U.S.C. § 820(i). The Act requires, that in assessing civil monetary 

penalties, the ALJ must consider six statutory penalty criteria which include the history of 

violations, the size of the operator, the negligence, gravity, the ability to continue in business and 

good faith abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the 

Commission has held that Tfindings of fact on the statutory penalty criteria must be madeU by its 

judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 

1984). Once findings on the statutory criteria have been made, a judgefs penalty assessment for a 

particular violation is an exercise of discretion that includes a consideration of the penalty 

criteria and the deterrent purpose of the Act. Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

Knight Hawk is a large operator. The gravity, negligence, and history of violations are 

addressed above. While Knight Hawk did abate the violation in good faith, it also argues that its 

post-accident installation of proximity detection devices should be considered a significant 

remedial measure that should be taken into consideration when assessing the penalty. While I 

commend Knight Hawk for installing the proximity detection devices, I find that that the 

$70,000.00 proposed penalty for Citation No. 8439096 is appropriate in this case. The operator 

has stipulated that the penalty, as proposed, will not affect its ability to continue in business. 

Given my above findings, I assess a penalty of $70,000.00 for Citation No. 8439096 and a 

penalty of $3,074.00 for Citation No. 8448666. 

III. ORDER 

I assess a total penalty of $73,074.00 for both the settled citation and the citation 

addressed at hearing. Knight Hawk Coal Co. is hereby ORDERED to pay the Secretary of Labor 

the sum of $73,074.00 within 30 days of the date of this decision. The contest cases, having been 

resolved in the penalty dockets, are dismissed. 

 /s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

37 FMSHRC Page 645
Distribution: 

Edward Hartman, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn St., 8th

Floor, Chicago, IL 60604 

Mark E. Heath, Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box 273, 

Charleston, WV 25321 

37 FMSHRC Page 646
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 FAX 303-844-5268 

0DUFK

 

DECISION ON REMAND

%HIRUH -XGJH0DQQLQJ

 7KLVFDVHLVEHIRUHPHXSRQDSHWLWLRQIRUDVVHVVPHQWRIFLYLOSHQDOW\ILOHGE\WKH

6HFUHWDU\RI/DERUWKURXJKWKH0LQH6DIHW\DQG+HDOWK$GPLQLVWUDWLRQ306+$ ́DJDLQVW6LHUUD

5RFN3URGXFWV,QFSXUVXDQWWRVHFWLRQVDQGRIWKH)HGHUDO0LQH6DIHW\DQG+HDOWK$FW

RI86&DQGWKH30LQH$FW ́)ROORZLQJDQHYLGHQWLDU\KHDULQJLQWKLV

DQGRWKHU6LHUUD5RFNFDVHV,LVVXHGP\GHFLVLRQRQWKHPHULWVSierra Rock Products, Inc., 

)06+5&-DQ7KH6HFUHWDU\DSSHDOHGP\UXOLQJRQRQHZLWKGUDZDORUGHUWRWKH

&RPPLVVLRQ2Q-DQXDU\WKH&RPPLVVLRQLVVXHGLWVGHFLVLRQSierra Rock Products, 

Inc., )06+5&BBBBBB:/7KH&RPPLVVLRQUHPDQGHGWKHFDVHWRPHDQGLQ

DFFRUGDQFHZLWKLWVRUGHU,HQWHUWKHGHFLVLRQEHORZ

I. INITIAL DECISION AND COMMISSION REMAND

 ,QP\GHFLVLRQ,PRGLILHG2UGHU1RLVVXHGXQGHUVHFWLRQGRIWKH

0LQH$FW,DIILUPHGWKH06+$LQVSHFWRU¶VGHWHUPLQDWLRQWKDWWKHYLRODWLRQZDVVHULRXVZDV

KLJKO\OLNHO\WRUHVXOWLQDIDWDOLQMXU\DQGZDVRIDVLJQLILFDQWDQGVXEVWDQWLDOQDWXUH36	6 ́,

GHWHUPLQHGWKDWWKHPLQHRSHUDWRU¶VQHJOLJHQFHZDVPRGHUDWHUDWKHUWKDQWKHUHVXOWRILWV

3UHFNOHVVGLVUHJDUG ́DQG,PRGLILHGWKHRUGHUWRDVHFWLRQDFLWDWLRQ)06+5&DW,

UHGXFHGWKHSHQDOW\IURPDVVSHFLDOO\DVVHVVHGE\WKH6HFUHWDU\WR

7KH&RPPLVVLRQUHPDQGHGWKHFDVHWRPH3IRUIXUWKHUDQDO\VLVLQOLJKWRIWKHFLWHG

VWDQGDUGDQGWKHUHOHYDQWIDFWVDQGFLUFXPVWDQFHV ́DVGLVFXVVHGLQLWVGHFLVLRQSlip opDW7KH

&RPPLVVLRQDOVRYDFDWHGDQGUHPDQGHGWKHSHQDOW\DVVHVVPHQWLQP\GHFLVLRQ3IRU

UHFRQVLGHUDWLRQLQOLJKWRIDQ\FKDQJHVWRWKHXQZDUUDQWDELOLW\DQGQHJOLJHQFHILQGLQJV ́Id. 2QO\

2UGHU1RLVEHIRUHPHRQUHPDQG. ,LQYLWHGFRXQVHOIRUWKH6HFUHWDU\DQG6LHUUD5RFN

WRILOHVWDWHPHQWVRISRVLWLRQRQWKHVHLVVXHVDQG,FRQVLGHUHGWKHLUDUJXPHQWV

6(&5(7$5<2)/$%25

0,1(6$)(7<$1'+($/7+ 

$'0,1,675$7,2106+$

  3HWLWLRQHU

  Y

6,(55$52&.352'8&76,1&

  5HVSRQGHQW

  &,9,/3(1$/7<352&((',1*

'RFNHW1R:(670

$&1R

6LHUUD5RFN3URGXFWV

37 FMSHRC Page 647
2UGHU1RZDVLVVXHGIRUDYLRODWLRQRIVHFWLRQZKLFKUHTXLUHVWKDW

SRZHUFLUFXLWVEHGHHQHUJL]HGEHIRUHZRUNLVSHUIRUPHGRQVXFKFLUFXLWV&)5

7KHVDIHW\VWDQGDUGDOVRUHTXLUHVWKDW3>V@ZLWFKHVVKDOOEHORFNHGRXWRURWKHUPHDVXUHVWDNHQ

ZKLFKVKDOOSUHYHQWWKHSRZHUFLUFXLWVIURPEHLQJHQHUJL]HGZLWKRXWWKHNQRZOHGJHRIWKH

LQGLYLGXDOZRUNLQJRQWKHP ́Id. 

 :LWKUHVSHFWWR2UGHU1R,VLPSO\VWDWHGWKHRSHUDWRU¶VQHJOLJHQFHZDV

PRGHUDWHDQGZDVQRWWKHUHVXOWRILWVDJJUDYDWHGFRQGXFW3>I@RUWKHVDPHUHDVRQVDVGLVFXVVHG

DERYH>@ ́Sierra Rock Products, Inc., )06+5&DW7KLVUHIHUHQFHLQP\GHFLVLRQZDVWR

P\DQDO\VLVIRU&LWDWLRQ1RDQG2UGHU1RZKLFKDOOHJHGYLRODWLRQVRI

VHFWLRQ7KH&RPPLVVLRQUHPDQGHGWKHFDVHWRPHIRUD3VHSDUDWH ́DQDO\VLVRI

QHJOLJHQFHDQGXQZDUUDQWDEOHIDLOXUHIRU2UGHU1RFRQVLGHULQJWKHIDFWVXQLTXHWRWKH

RUGHUSlip op.DW7KH&RPPLVVLRQ¶VGHFLVLRQGLUHFWHGPHWRFRQVLGHUVHYHUDOVSHFLILFGHWDLOV

RQUHPDQG7KHVHPDWWHUVDUHGLVFXVVHGWKURXJKRXWWKHGHFLVLRQEXWDUHVXPPDUL]HGLQWKH

SHQXOWLPDWHSDUDJUDSKDVIROORZV

,QVXPPDU\WKLVPDWWHULVUHPDQGHGWRWKH-XGJHIRUDVHSDUDWHFRQVLGHUDWLRQRI

WKHXQZDUUDQWDELOLW\IDFWVLQOLJKWRIWKHWRWDOLW\RIFLUFXPVWDQFHVVSHFLILFWR2UGHU

1R,QSDUWLFXODUWKHDQDO\VLVVKRXOGDGGUHVVWKHLPSDFWLIDQ\RIWKH

GLIIHUHQFHLQWKHFLWHGVWDQGDUGVRQWKHYDULRXVXQZDUUDQWLELOLW\IDFWRUVWKH

LPSDFWLIDQ\RIWKHPRUQLQJLQWHUDFWLRQEHWZHHQ+DWOHUDQGWKHLQVSHFWRU

UHJDUGLQJWKH0&&3DQHODQGWKHLQVSHFWRU¶VLQVWUXFWLRQVWRGHHQHUJL]HEHIRUH

RSHQLQJWKHSDQHODQGZKHWKHU6LHUUD5RFNKDGDQREMHFWLYHO\UHDVRQDEOHEHOLHI

EDVHGRQWKHDERYHIDFWVDQGFLUFXPVWDQFHVWKDWLWVFRQGXFWZDVLQFRPSOLDQFH

ZLWKWKHFLWHGVWDQGDUG7KHPDWWHULVDOVRUHPDQGHGIRUUHFRQVLGHUDWLRQRIWKH

GHJUHHRIQHJOLJHQFHDWWULEXWDEOHWR6LHUUD5RFNZLWKUHVSHFWWRWKHFRQGXFWDW

LVVXHLQWKHRUGHU

Slip opDW

II. ANALYSIS ON REMAND

2Q0D\06+$,QVSHFWRU:LOOLDP(GPLQLVWHULVVXHG&LWDWLRQ1RDW

DQHOHFWULFDOSDQHOEHFDXVHWKHGRRUWRWKHHOHFWULFDOSDQHOKDGWREHRSHQHGWRDFWLYDWHRUVKXW

GRZQWKHFRQYH\RUVH[SRVLQJWKHLQGLYLGXDOXVLQJWKHFLUFXLWEUHDNHUVWRHQHUJL]HGHOHFWULFDO

FLUFXLWVZLWKLQWKHSDQHO

2Q0D\WKHLQVSHFWRUUHWXUQHGWRWKHTXDUU\DQGLQVSHFWHGDQHOHFWULFDOSDQHOLQ

WKHPRWRUFRQWUROFHQWHU30&&URRP ́-LP+DWOHUWKHRZQHUDQGRSHUDWRURIWKHPLQH

VXJJHVWHGWKDWWKHLQVSHFWRUORRNDWWKLVSDQHOEHFDXVHLWZDVFRQILJXUHGWKHVDPHDVWKHILUVW

SDQHOFLWHGDQG+DWOHUZDQWHGWRSHUVXDGHWKHLQVSHFWRUWKDWERWKSDQHOVZHUHVDIH,QVSHFWRU

(GPLQLVWHULQIRUPHG+DWOHUWKDWERWKSDQHOVYLRODWHGVHFWLRQ+DWOHULQIRUPHGWKH

LQVSHFWRUWKDWWKHSDQHOVZHUHLQVSHFWHGE\06+$GXULQJSUHYLRXVLQVSHFWLRQVDQG06+$

DFFHSWHGWKHFRQILJXUDWLRQRIWKHSDQHOVGXULQJWKRVHLQVSHFWLRQV

 

7KDWVDIHW\VWDQGDUGVWDWHVWKDW3>R@SHUDWLQJFRQWUROVVKDOOEHLQVWDOOHGVRWKDWWKH\FDQ

EHRSHUDWHGZLWKRXWGDQJHURIFRQWDFWZLWKHQHUJL]HGFRQGXFWRUV ́

37 FMSHRC Page 648
$IWHUFRQIHUULQJZLWKWKH06+$GLVWULFWRIILFH,QVSHFWRU(GPLQLVWHULQIRUPHG-LP+DWOHU

WKDWKHZRXOGLVVXH2UGHU1REHFDXVHWKHFRQILJXUDWLRQRIWKHVHFRQGSDQHOZDVWKH

VDPHDVWKHSDQHOLQYROYHGLQ&LWDWLRQ1R:KHQ(GPLQLVWHUFRPPXQLFDWHGKLV

GHFLVLRQWR+DWOHUKHDVNHG+DWOHUWRUHWXUQWRWKHSDQHODQGGHHQHUJL]HLWWRDOORZ,QVSHFWRU

(GPLQLVWHUWRSKRWRJUDSKWKHFRQGLWLRQ7KHLQVSHFWRUWHVWLILHGWKDW+DWOHUUHVSRQGHGDQJULO\KH

3WKUHZGRZQVRPHSDSHUV ́3>Z@HQWVWRUPLQJRXW ́RIWKHRIILFHDQG3ZDVUDYLQJWKHHQWLUHZD\

WRWKH0&&URRP ́7U+DWOHUDGPLWWHGWKDWKHZDVDQJU\ZLWKWKHLQVSHFWRU7U

$V+DWOHUDQG,QVSHFWRU(GPLQLVWHUDSSURDFKHGWKH0&&URRPWKHLQVSHFWRUWROG+DWOHU

WKDW+DWOHUQHHGHGWRGHHQHUJL]HWKHSDQHOE\XVLQJWKHPDLQSRZHUVZLWFKORFDWHGRXWVLGHWKH

SDQHOUDWKHUWKDQE\UHDFKLQJLQWRWKHSDQHOWRIOLSWKHFLUFXLWEUHDNHUVORFDWHGLQFKHVIURPWKH

YROWHOHFWULFDOFRQQHFWLRQ+DWOHUDGPLWWHGWKDW,QVSHFWRU(GPLQLVWHUDVNHGKLPWRGH

HQHUJL]HWKHSDQHOE\WXUQLQJRIIWKHPDLQSRZHUVZLWFK

>7KHLQVSHFWRU@WROGPHWKDW,KDGWRGHHQHUJL]H>WKHSDQHO@VRKHFRXOGFROOHFW

KLVHYLGHQFH6RWKHQZHZHQWRYHUDQG,ZHQWLQDQG,ZHQWWRRSHQWKHGRRU>WR

WKHSDQHO@DQGKHLQIRUPHGPHWKDW,FRXOGQRWRSHQWKHGRRUWKDW,KDGWRWXUQ

WKHPDLQRII

7U

,QVSHFWRU(GPLQLVWHUWHVWLILHG+DWOHUWKHQ3RSHQHGXSWKHGRRUYHU\TXLFNO\UHDFKHG

LQVLGHDQGORRNHGOLNHKHUDFNHGRXWWKHWKUHHEUHDNHUVZLWFKHV ́7U+DWOHUWHVWLILHGWKDW

KH3WROG>WKHLQVSHFWRU@LQQRWVXFKDQLFHWRQHWKDWKHKDGQRWSURYHGWRPHLQZULWLQJWKDWKHKDG

± WKDW,ZDVLQYLRODWLRQDQG,ZDVQ¶WJRLQJWRORFNLWRXW$QG,RSHQHGWKHGRRUDQG,UHDFKHGLQ

DQGWXUQHGWKHEUHDNHUVRII ́7U+DWOHUH[SODLQHGWKDWKHGHFLGHGQRWWRWXUQRIIWKHSRZHU

DWWKHPDLQVZLWFKEHFDXVHKHGLVDJUHHGZLWKWKHLQVSHFWRU¶VDVVHVVPHQWRIWKHYLRODWLRQ

,QVSHFWRU(GPLQLVWHULVVXHGDQLPPLQHQWGDQJHURUGHUDQG2UGHU1R

A. Unwarrantable Failure

,QDQDO\]LQJWKLVFDVHDVHFRQGWLPHDWWKHGLUHFWLRQRIWKH&RPPLVVLRQ,SODFHPRUH

HPSKDVLVRQWKHVHULRXVQHVVRIWKHYLRODWLRQDQG,ILQGWKDW2UGHU1RZDVWKHFDXVHG

E\6LHUUD5RFN¶VXQZDUUDQWDEOHIDLOXUHWRFRPSO\ZLWKVHFWLRQ,FRQFOXGHWKDWWKH

6LHUUD5RFNGHPRQVWUDWHGDJJUDYDWHGFRQGXFWWKDWZDVJUHDWHUWKDQRUGLQDU\QHJOLJHQFHEmery 

Mining Corp.)06+5&'HF8QZDUUDQWDEOHIDLOXUHLVFKDUDFWHUL]HGE\

VXFKFRQGXFWDV3UHFNOHVVGLVUHJDUG ́3LQWHQWLRQDOPLVFRQGXFW ́3LQGLIIHUHQFH ́RUWKH3VHULRXV

ODFNRIUHDVRQDEOHFDUH ́Id. DWRochester & Pittsburgh Coal Co.)06+5&

)HE+DWOHU¶VFRQGXFWZDVDWOHDVWDVHULRXVODFNRIUHDVRQDEOHFDUH,ILQGWKDWWKH

YLRODWLRQZDVWKHUHVXOWRI6LHUUD5RFN¶VXQZDUUDQWDEOHIDLOXUHWRFRPSO\ZLWKWKHVDIHW\VWDQGDUG

DQGWKDWLWVQHJOLJHQFHZDVKLJK





2UGHU1RDJDLQEHFRPHVDQRUGHULVVXHGXQGHUVHFWLRQGRIWKH0LQH

$FW%HFDXVH,KHOGWKDWWKHYLRODWLRQDOOHJHGLQG&LWDWLRQZDVQRWDUHVXOWRI

6LHUUD5RFN¶VXQZDUUDQWDEOHIDLOXUH,PRGLILHGLWWRDVHFWLRQDFLWDWLRQ$VDFRQVHTXHQFH

G2UGHUEHFDPHDVHFWLRQGFLWDWLRQE\RSHUDWLRQRIODZDQGWKDW

FLWDWLRQLVWKHSUHGLFDWHIRUWKHRUGHUDWLVVXHKHUH

37 FMSHRC Page 649
,DQDO\]HHDFKRIWKHDJJUDYDWHGFRQGXFWIDFWRUVLQWXUQZLWKUHVSHFWWR2UGHU1R



1. The Length of Time that the Violation Existed

7KHFRQGLWLRQGLGQRWH[LVWIRUDORQJSHULRGRIWLPHEXWWKHSUDFWLFHZDVORQJVWDQGLQJ

$V,VWDWHGLQP\RULJLQDOGHFLVLRQ3-LP+DWOHULQWKHLQVSHFWRU¶VSUHVHQFHRSHQHGWKH>GRRUWR

WKH@HOHFWULFDOSDQHOZLWKRXWILUVWGHHQHUJL]LQJWKHSRZHUZLWKLQWKHSDQHODQGIOLSSHGWKH

EUHDNHUVZLWFKHVWRRSHQWKHFLUFXLWVWRWKHFRQYH\RUV ́)06+5&DW$VDFRQVHTXHQFH

KHH[SRVHGKLPVHOIWROLYHHOHFWULFDOFRPSRQHQWV7KHYLRODWLRQZDVDQLQVWDQWDQHRXVDFWLRQE\

WKHRZQHURIWKHPLQHDVRSSRVHGWRDQH[LVWLQJFRQGLWLRQLGHQWLILHGE\WKHLQVSHFWRU7KLVZDV

KRZHYHUDORQJVWDQGLQJSUDFWLFH+DWOHUZDVDQJU\ZKHQKHWRRNWKLVDFWLRQDQGKHGLGVRDIWHU

WKHLQVSHFWRUVSHFLILFDOO\DVNHGKLPWRGHHQHUJL]HWKHSDQHOEHIRUHKHRSHQHGWKHFLUFXLWV,ILQG

WKDW6LHUUD5RFN¶VYLRODWLRQRIVHFWLRQH[LVWHGRYHUDQH[WHQGHGSHULRGRIWLPH

2. The Extent of the Violative Condition

,ILQGWKDWWKHHYLGHQFHHVWDEOLVKHVWKDWWKHYLRODWLRQZDVH[WHQVLYHEHFDXVHLWZDVDORQJ

VWDQGLQJSUDFWLFHDWWKHSODQWWRVKXWGRZQWKHFRQYH\RUVDQGUHVWDUWWKHFRQYH\RUVE\RSHQLQJ

WKHGRRUWRHQHUJL]HGHOHFWULFDOSDQHOVDQGIOLSSLQJWKHFLUFXLWEUHDNHUV,GHWHUPLQHGWKDWWKH

YLRODWLRQZDVVHULRXVZDVKLJKO\OLNHO\WRUHVXOWLQDIDWDOLQMXU\DQGZDV6	67KXV6LHUUD

5RFNKDGDKLVWRU\RIIDLOLQJWRGHHQHUJL]HSRZHUFLUFXLWVEHIRUHSHUIRUPLQJZRUNXSRQWKH

FLUFXLWVLQYLRODWLRQRIVHFWLRQ7KHYLRODWLRQZDVDOVRH[WHQVLYHGXHWRWKHVHULRXV

KD]DUGWKDWZDVSUHVHQWHG

3. Whether the Operator Was Placed on Notice that Greater Efforts Were

Necessary

7KHRSHUDWRUKDGQRWEHHQSODFHGRQQRWLFHWKDWJUHDWHUHIIRUWVZHUHQHFHVVDU\WRDFKLHYH

FRPSOLDQFHSULRUWRWKLVLQVSHFWLRQ6LHUUD5RFNDUJXHGWKDWLWKDGQRNQRZOHGJHWKDWWKH

HOHFWULFDOSDQHOYLRODWHGDQ\VDIHW\VWDQGDUGVEDVHGXSRQSUHYLRXV06+$LQVSHFWLRQV,FUHGLW

WKHHYLGHQFHSUHVHQWHGE\6LHUUD5RFNWKDW+DWOHUJHQXLQHO\EHOLHYHGWKDW6LHUUD5RFNZDV

FRPSO\LQJZLWK06+$¶VHOHFWULFDOVDIHW\VWDQGDUGV,GRQRWNQRZZKHWKHU06+$¶VIDLOXUHWR

HQIRUFHVHFWLRQVDQGZDVEHFDXVHRWKHULQVSHFWRUVGLGQRWEHOLHYHWKHVXEMHFW

SDQHOVYLRODWHGWKHVDIHW\VWDQGDUGVRUZKHWKHUWKHLQVSHFWRUVZHUHVLPSO\XQDZDUHRIWKH

YLRODWLRQV+DWOHUZDVDGYLVHGWKHSUHYLRXVGD\WKDWKHFRXOGQRORQJHUXVHWKHFLUFXLWEUHDNHUV

LQVLGHWKHSDQHOWRDFWLYDWHRUGHDFWLYDWHWKHFRQYH\RUVLIWKHFLUFXLWVLQWKHSDQHOZHUHHQHUJL]HG

,QGHHG,QVSHFWRU(GPLQLVWHUZDUQHG+DWOHULPPHGLDWHO\SULRUWRWKHYLRODWLRQWKDWWKHSDQHOKDG

WREHGHHQHUJL]HGEHIRUHKHFRXOGUHDFKLQWRWKHSDQHO*LYHQWKDW06+$KDGRQO\VWDUWHGWR

HQIRUFHWKHWZRVDIHW\VWDQGDUGVGXULQJWKHVXEMHFWLQVSHFWLRQ,KROGWKDW6LHUUD5RFNZDVQRW

SODFHGRQQRWLFHWKDWJUHDWHUHIIRUWVZHUHQHFHVVDU\

37 FMSHRC Page 650
4. The OperatorPs Efforts in Abating the Violative Condition

%HFDXVH6LHUUD5RFNGLGQRWEHOLHYHWKDWLWVSUDFWLFHVYLRODWHGWKHFLWHGHOHFWULFDOVDIHW\

VWDQGDUGVLWWRRNQRVWHSVWRDEDWHWKHFRQGLWLRQV1HYHUWKHOHVVWKHLQVSHFWRUDGYLVHG+DWOHUWR

GHHQHUJL]HWKHVXEMHFWHOHFWULFDOSDQHOEHIRUHKHIOLSSHGWKHFLUFXLWEUHDNHUV7KLVFDVHSUHVHQWV

DQXQXVXDOFLUFXPVWDQFHEHFDXVH+DWOHURSHQHGWKHFLUFXLWVXVLQJWKHFLUFXLWEUHDNHUVLQDQHIIRUW

WRVKRZWKHLQVSHFWRUWKDWKLVPHWKRGZDVERWKVDIHDQGLQFRPSOLDQFHZLWK06+$¶VHOHFWULFDO

VDIHW\VWDQGDUGV+LVPHWKRGKRZHYHUZDVGDQJHURXVHVSHFLDOO\FRQVLGHULQJWKHH[FLWHG

PDQQHULQZKLFKKHSHUIRUPHGLW

5. Whether the Violation was Obvious or Posed a High Degree of Danger

,ILQGWKDWDUHDVRQDEO\SUXGHQWSHUVRQIDPLOLDUZLWKWKHKD]DUGVRIHQHUJL]HGHOHFWULFDO

FLUFXLWVZRXOGNQRZWKDWWKHSUDFWLFHXVHGE\6LHUUD5RFNWRVKXWGRZQDQGVWDUWXSFRQYH\RUV

FUHDWHGDQREYLRXVDQGVHULRXVVDIHW\KD]DUG+DWOHUEHOLHYHGWKDWEHFDXVHKHDQGKLVVRQZHUH

WKHRQO\SHRSOHZKRRSHUDWHGWKHFLUFXLWEUHDNHUVDVDIHW\KD]DUGZDVQRWSUHVHQWEHFDXVHWKH\

KDGGRQHLWIRU\HDUVDQGZHUHFDUHIXO$VWKH&RPPLVVLRQKDVQRWHGKRZHYHUHYHQ3DVNLOOHG

HPSOR\HHPD\VXIIHUDODSVHRIDWWHQWLYHQHVVHLWKHUIURPIDWLJXHRUHQYLURQPHQWDO

GLVWUDFWLRQV>@ ́Great Western Electric Co.)06+5&0D\(YHQLI,DVVXPH

WKDW+DWOHUZDVYHU\FRQVFLHQWLRXVZKHQSHUIRUPLQJWKLVIXQFWLRQIDWLJXHRUDQRWKHUGLVWUDFWLRQ

FRXOGHDVLO\FDXVHKLPWRPDNHDIDWDOHUURU%HFDXVHRIWKHORFDWLRQRIWKHHOHFWULFDOSDQHOZLWKLQ

WKH0&&URRPWKHGRRUFRXOGQRWEHRSHQHGFRPSOHWHO\ZKLFKIXUWKHUFRQWULEXWHGWRWKHULVNRI

DQDFFLGHQW,ILQGWKDWWKHYLRODWLRQZDVREYLRXVDQGSRVHGDKLJKGHJUHHRIGDQJHU

6. The OperatorPs Knowledge of the Existence of the Violation

+DWOHU¶VEHOLHIWKDWKLVDFWLRQVGLGQRWYLRODWHWKHVDIHW\VWDQGDUGZDVXQUHDVRQDEOH7KH

&RPPLVVLRQKHOGWKDWWKHGHIHQVHWKDWDQRSHUDWRUKDGDJRRGIDLWKEHOLHIWKDWLWVFRQGXFWZDVLQ

FRPSOLDQFHZLWKDVDIHW\VWDQGDUGUHTXLUHVQRWRQO\DVKRZLQJRIJRRGIDLWKEXWDOVRWKDWWKH

FRQGXFWZDVREMHFWLYHO\UHDVRQDEOHXQGHUWKHFLUFXPVWDQFHVIO Coal Co.)06+5&

'HF(YHQLI,DVVXPHWKDW+DWOHU¶VDFWLRQVZHUHWDNHQLQJRRGIDLWK,ILQGWKDW

WKHFLWHGSURFHGXUHZDVREMHFWLYHO\XQUHDVRQDEOHJLYHQWKDWOLYHHOHFWULFDOFRPSRQHQWVZHUH

LQFKHVDZD\IURPWKHFLUFXLWEUHDNHUV7KHKDVW\DQGDQJU\PDQQHUWKDW+DWOHUDFWHGDOVRPDGH

KLVDFWLRQVOHVVUHDVRQDEOHDQGPRUHGDQJHURXV

B. Negligence

,ILQGWKDW+DWOHU¶VFRQGXFWH[KLELWHGDKLJKGHJUHHRIQHJOLJHQFH,QDVVHVVLQJWKH

QHJOLJHQFHRIDYLRODWLRQWKH&RPPLVVLRQFRQVLGHUV3ZKDWDFWLRQVZRXOGKDYHEHHQWDNHQXQGHU



,QWKH&RPPLVVLRQ¶VGHFLVLRQ&RPPLVVLRQHU5REHUW)&RKHQVWDWHGWKDW3>L@WLV

LQFRQFHLYDEOHWKDW+DWOHU¶VDQJU\DFWRISXWWLQJKLVKDQGLQVLGHWKHHOHFWULFDOSDQHOLQGHILDQFHRI

WKHLQVSHFWRU¶VH[SOLFLWZDUQLQJWKXVFUHDWLQJDQLPPLQHQWGDQJHUFRXOGEHGHWHUPLQHGWREH

FKDUDFWHUL]HGDVDQREMHFWLYHO\UHDVRQDEOHDFWRIJRRGIDLWKSee, Consolidation Coal Co.

)06+5&-XQHμ>1@RRSHUDWRULVIUHHWRWDNHWKHODZLQWRLWVRZQKDQGVE\

GHFLGLQJIRULWVHOIZKDWWKHODZPHDQVDQGKRZLWFDQEHVWEHDSSOLHG¶ ́Slip op. DWQ

37 FMSHRC Page 651
WKHVDPHFLUFXPVWDQFHVE\DUHDVRQDEO\SUXGHQWSHUVRQIDPLOLDUZLWKWKHPLQLQJLQGXVWU\WKH

UHOHYDQWIDFWVDQGWKHSURWHFWLYHSXUSRVHRIWKHUHJXODWLRQ ́Jim Walter Resources, Inc.

)06+5&$XJ,ILQGWKDWWKHHYLGHQFHHVWDEOLVKHVWKDWDUHDVRQDEO\SUXGHQW

SHUVRQZRXOGQRWRSHQWKHGRRUWRWKHHOHFWULFDOSDQHOLQWKLVLQVWDQFHZLWKRXWILUVWGHHQHUJL]LQJ

WKHSDQHODVWKHLQVSHFWRUGLUHFWHG,ILQGWKDW+DWOHU¶VFRQGXFWGLGQRWULVHWRWKHOHYHORIUHFNOHVV

GLVUHJDUGEHFDXVHKHSHUIRUPHGWKLVWDVNLQWKHVDPHPDQQHUIRUDWOHDVWDGHFDGHZLWKRXW

FDXVLQJDQLQMXU\RUUHFHLYLQJDFLWDWLRQ

C. Other Matters

7KH&RPPLVVLRQDVNHGWKDW,GLVFXVV3WKHLPSDFWLIDQ\RIWKHGLIIHUHQFHLQWKHFLWHG

VWDQGDUGVRQWKHYDULRXVXQZDUUDQWLELOLW\IDFWRUV ́Slip opDW*LYHQWKDW,KDYHQRZDSSOLHGD

GLVWLQFWDJJUDYDWHGFRQGXFWDQDO\VLVIRU2UGHU1RWKLVLVVXHLVPRRW,QDGGLWLRQ,

DOUHDG\GLVFXVVHGWKHLPSDFWRIWKH3PRUQLQJLQWHUDFWLRQEHWZHHQ+DWOHUDQGWKHLQVSHFWRU

UHJDUGLQJWKH0&&SDQHODQGWKHLQVSHFWRU¶VLQVWUXFWLRQVWRGHHQHUJL]HEHIRUHRSHQLQJWKH

SDQHO ́Id. )LQDOO\,FRQFOXGHGWKDW6LHUUD5RFNGLGQRWKDYH3DQREMHFWLYHO\UHDVRQDEOHEHOLHI

WKDWLWVFRQGXFWZDVLQFRPSOLDQFHZLWKWKHFLWHGVWDQGDUG ́Id.6LHUUD5RFNDEDWHGWKHJURXS

RIHOHFWULFDOYLRODWLRQVE\LQVWDOOLQJEUHDNHUSDQHOVRXWVLGHWKHH[LVWLQJHOHFWULFDOSDQHOV

D. Appropriate Civil Penalty

7KHYLRODWLRQZDVVHULRXV6	6DQG6LHUUD5RFN¶VQHJOLJHQFHZDVKLJK7KHDVVHVVHG

YLRODWLRQKLVWRU\UHSRUWVKRZVWKDW6LHUUD5RFNKDGDKLVWRU\RIYLRODWLRQVLQWKHPRQWKV

SUHFHGLQJWKHLQVWDQWLQVSHFWLRQDQGWKDWRIWKHVHYLRODWLRQVZHUH6	6([*6LHUUD5RFN

ZDVYHU\VPDOO,QLWZRUNHGPDQKRXUVDQGHPSOR\HGWKUHHWRIRXUSHRSOHLQFOXGLQJ

-LPDQG%DUU\+DWOHU)06+5&DW,QP\RULJLQDOGHFLVLRQ,VWDWHGWKDW,3UHGXFHGWKH

SHQDOWLHVEHFDXVHRI5HVSRQGHQW¶VVPDOOVL]H ́Id.7KHYLRODWLRQZDVDEDWHGLQJRRGIDLWK6LHUUD

5RFNGLGQRWHVWDEOLVKWKDWDUHDVRQDEOHSHQDOW\ZRXOGDGYHUVHO\DIIHFWLWVDELOLW\WRFRQWLQXHLQ

EXVLQHVV$WWKHKHDULQJLQWKLVFDVH6LHUUD5RFNLQWURGXFHGLWVFRUSRUDWHWD[UHWXUQVWRSURYH

WKDWWKH6HFUHWDU\¶VSURSRVHGSHQDOWLHVZRXOGDGYHUVHO\DIIHFWLWVDELOLW\WRFRQWLQXHLQEXVLQHVV

,QP\RULJLQDOGHFLVLRQ,KHOGWKDWWKLVHYLGHQFHZDVLQVXIILFLHQWId.

7KH6HFUHWDU\VSHFLDOO\DVVHVVHGWKHSHQDOW\SURSRVHGIRU2UGHU1R

&)5

,QP\RULJLQDOGHFLVLRQ,UHGXFHGWKHSHQDOW\WR,DVVHVVHGDWRWDO

SHQDOW\RIIRUDOOWKHFLWDWLRQVDQGRUGHUVFRQWHVWHGDWWKHKHDULQJE\6LHUUD5RFN



7KHUHFRUGGRHVQRWVWDWHZKDWSHQDOW\WKH6HFUHWDU\ZRXOGSURSRVHLIKHKDGXVHGKLV

UHJXODUDVVHVVPHQWIRUPXOD*LYHQWKHORZKLVWRU\RISUHYLRXV6	6YLRODWLRQVDQGWKHRSHUDWRU¶V

VPDOOVL]H,EHOLHYHWKHSURSRVHGSHQDOW\XQGHU&)5ZRXOGEHKLJKHUWKDQWKH

PLQLPXPSHQDOW\RIEXWOHVVWKDQ,QAmerican Coal Co.,)06+5&

-XQH$/-IRUPHU&RPPLVVLRQ-XGJH0LFKDHO=LHOLQNVLGLVFXVVHGWKHGLIILFXOW\

LQDVVHVVLQJDSHQDOW\IRUDYLRODWLRQWKDWWKH6HFUHWDU\VSHFLDOO\DVVHVVHG37KHODFNRI

WUDQVSDUHQF\LQWKH6HFUHWDU\¶VVSHFLDODVVHVVPHQWSURFHVVFRXSOHGZLWKWKH6HFUHWDU\¶V

UHIXVDOWRGLVFORVHWKHEDVHVIRUVSHFLDOO\DVVHVVLQJDSHQDOW\FDQIUXVWUDWH ́DMXGJH¶VDELOLW\WR

H[SODLQWKHGLVSDULW\EHWZHHQWKH6HFUHWDU\¶VSURSRVHGSHQDOW\DQGWKHSHQDOW\DVVHVVHGE\WKH

MXGJHId.DWIRRWQRWHRPLWWHG7KH6HFUHWDU\¶VQDUUDWLYHILQGLQJVDWWDFKHGWRWKHSHQDOW\

FRQWLQXHG«

37 FMSHRC Page 652
7DNLQJLQWRFRQVLGHUDWLRQWKHVL[SHQDOW\FULWHULDVHWIRUWKLQVHFWLRQLRIWKH0LQH

$FW,DVVHVVDSHQDOW\RIIRUWKLVYLRODWLRQ$VEHIRUHWKHRSHUDWRU¶VVPDOOVL]HZDVDQ

HVSHFLDOO\LPSRUWDQWIDFWRULQWKHSHQDOW\UHGXFWLRQ

III. ORDER

)RUWKHUHDVRQVVHWIRUWKDERYH2UGHU1RLVAFFIRMEDEXWWKHDVVRFLDWHG

QHJOLJHQFHLVUHGXFHGIURP3UHFNOHVVGLVUHJDUG ́WR3KLJK ́6LHUUD5RFN3URGXFWV,QFLV

ORDERED TO PAYWKH6HFUHWDU\RI/DERUDWRWDOSHQDOW\RIIRUWKLVRUGHU$Q\

XQSDLGSRUWLRQRIWKLVSHQDOW\VKDOOEHUHPLWWHGZLWKLQGD\VRIWKHGDWHRIWKLVGHFLVLRQ

V5LFKDUG:0DQQLQJ

5LFKDUG:0DQQLQJ

$GPLQLVWUDWLYH/DZ-XGJH

'LVWULEXWLRQ

&KHU\O/$GDPV(VT2IILFHRIWKH6ROLFLWRU86'HSDUWPHQWRI/DERUWK6WUHHW6XLWH

6DQ)UDQFLVFR&$&HUWLILHG0DLO

.ULVWLQ5%:KLWH(VT-DFNVRQ.HOO\3//&WK6WUHHW6XLWH'HQYHU&2

&HUWLILHG0DLO

5:0

SHWLWLRQHPSKDVL]HWKDWKHIROORZHG06+$¶VVSHFLDODVVHVVPHQWSURFHGXUHVLQWKLVFDVHEHFDXVH

RIWKHJUDYLW\RIWKHYLRODWLRQDQGWKHRSHUDWRU¶VOHYHORIQHJOLJHQFH7KH6HFUHWDU\KDVDOVR

SRVWHGDWWKH06+$ZHEVLWHVRPHJHQHUDOSURFHGXUHVWKDWKHIROORZVZKHQSURSRVLQJDSHQDOW\

WKDWKDVEHHQVSHFLDOO\DVVHVVHGKWWSZZZPVKDJRY352*5$06DVVHVV6SHFLDO$VVHVV

6SHFLDO$VVHVVPHQWVSGI7KHVHSURQRXQFHPHQWVDUHQRWYHU\KHOSIXO



3D\PHQWVKRXOGEHVHQWWRWKH0LQH6DIHW\DQG+HDOWK$GPLQLVWUDWLRQ86'HSDUWPHQW

RI/DERU3D\PHQW2IILFH32%R[6W/RXLV02

FRQWLQXHG

37 FMSHRC Page 653
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

March 20, 2015 

DECISION AND ORDER

Before: Judge Andrews 

Appearances: Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 

 Nashville, TN, Representing the Secretary of Labor 

 Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

 Washington, D.C., Representing Respondent 

STATEMENT OF THE CASE 

This case is before the undersigned Administrative Law Judge on a Petition for 

Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Hanson 

Aggregates Midwest, LLC (THanson AggregatesU or TRespondentU) pursuant to Section 104(a) 

of the Federal Mine Safety and Health Act of 1977 (TMine ActU), 30 U.S.C. § 815(d). Citation 

No. 8724144 was issued on December 5, 2012, with an assessed penalty of $127.00. A hearing 

was held in Middlesboro, Kentucky on July 17, 2014, at which the parties presented testimony 

and documentary evidence. After the hearing, Post Hearing Briefs and Respondent`s Reply Brief 

were submitted and have been fully considered. 

ISSUES 

The issues to be determined are whether the citation was validly issued; whether the 

violation was the result of the operator`s moderate negligence; and whether and in what amount 

the assessment of a civil penalty against the operator is appropriate.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

HANSON AGGREGATES MIDWEST, 

LLC, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2013-931-M 

A.C. No. 15-12905-324282 

Mine: Laurel Quarry 

37 FMSHRC Page 654
JOINT STIPULATIONS 

The parties agreed to the following stipulations, submitted and marked as Government 

Exhibit 1 at the hearing: 

1. Hanson Aggregates Midwest, LLC, owns and operates Laurel Quarry, I.D. No. 15-

12905, a limestone surface mine, which is located in Pulaski County, Kentucky; 

2. Laurel Quarry is a TmineU as that term is defined in Section 3(h) of the Mine Act. 30 

U.S.C § 803; 

3. Respondent is subject to the Federal Mine Safety and Health Act of 1977; 

4. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission, and the presiding Administrative Law Judge has the authority to 

hear this case and issue a decision; 

5. At all times relevant to these proceedings, Laurel Quarry had an effect on interstate 

commerce within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 

803; 

6. Laurel Quarry is small, with 37,584 hours worked in 2012; 

7. Copies of the citation in contest in this case are authentic and a copy was served on the 

Respondent by an Authorized Representative of the Secretary employed by the Mine 

Safety and Health Administration; 

8. The Respondent timely contested the violation; 

9. MSHA`s Proposed Assessment Data Sheet and TExhibit AkDocket Number KENT 

2013-931MU accurately set forth (a) the number of assessed penalty violations charged 

to Respondent for the period stated and (b) the number of inspection days per month 

for the period stated; 

10. The penalty proposed will not affect the Respondent`s ability to continue in business; 

11. The Respondent abated the citation timely and in good faith. 

EVIDENCE 

Testimony of Donald Michael Gabbard

Donald Michael Gabbard (TGabbardU) is a mine inspector with the Department of Labor, 

Mine Safety and Health Division. He has both a four-year degree in education and a two-year 

degree in mining from Morehead State University. (Tr. 14)1. Gabbard attended the Mine 

Academy where he was trained to be an authorized representative of the Secretary of Labor in 

2009. (Tr. 14). He has been employed with MSHA as either a mine inspector or trainee for 

approximately six years. (Tr. 14). Before working for MSHA, Gabbard worked on a surface coal 

mine for approximately six months and at an underground limestone mine for close to 28 years. 

(Tr. 15, 84). While at the limestone mine, Gabbard worked as a surveyor, a fill-in supervisor, and 

performed scaling operations. (Tr. 15). He held a blasting license for approximately 28 years. 

(Tr. 15). His experience includes roof control operator, running a bench and a face drill, 

maintenance, and production. In total, he has worked for approximately 35 years in the mining 

industry, including his time with MSHA. (Tr. 15-16). 

 1

 Citations to the transcript will be labeled TTr.U followed by the page number(s). 

37 FMSHRC Page 655
On December 5, 2012, Gabbard inspected Laurel Quarry, which is an open pit quarry that 

produces limestone. (Tr. 16-17). During his inspection, Gabbard issued a citation for loose 

ground, which consisted of a large boulder that he estimated to be approximately 5ft x 5ft x 3ft 

perched on a 40 foot highwall. (Tr. 17-18, 23). The citation was for a violation of standard 

56.3200, which requires loose ground to be taken down or supported before work or travel is 

permitted in any area that could be affected by it. (Tr. 19). The standard also requires a warning 

or barricade to be in place until the loose ground condition is corrected. (Tr. 19). 

Gabbard testified that the condition cited had been driven past while he and Respondent`s 

Agent James Kirby (TKirbyU) were on the bench road to inspect an excavator. (Tr. 19l20). The 

bench had been barricaded off with a berm that had to be moved in order for them to gain access 

to check the excavator. (Tr. 20-21, 115-117). He did not see the loose boulder as they drove by, 

due to the curvature of the road that goes around to the active bench. (Tr. 20). However, when 

they were on their way back from the excavator inspection, Gabbard explained that he could see 

the large boulder with air coming through the cracks around and behind it. (Tr. 20). He discussed 

the boulder with Kirby, who was adamant that he had not seen it before. (Tr. 21). They also 

discussed the need to have the boulder taken down since daylight could be seen around it. (Tr. 

21). Gabbard could not recall whether Kirby agreed the boulder needed to be taken down, but 

testified Kirby understood it would have to be tested. (Tr. 21). 

Gabbard explained that if the berm at the base of the wall had been properly constructed 

to 25 percent of the height of the wall away from the base of the wall, he would have found the 

boulder`s condition to be safe even though it was loose. (Tr. 21-22). He testified that the berm 

was nowhere near the required 25 percent, and part of it was totally missing and banked up 

against the face of the highwall above it. (Tr. 22). Gabbard explained that this would make a 

ramp, which could cause the boulder to speed up and possibly cross the bench or fall into the 

work area over 100 feet below. (Tr. 22). He estimated that the rock on the highwall was about 40 

feet high from the bench. (Tr. 22, 25). Gabbard further explained that he knew the boulder was 

loose because it was setting(sic) loose independently and he could see air or daylight behind the 

fractures on the side of the rock. (Tr. 23). Given the approximate size of the boulder, he 

estimated it weighed around 11,000 pounds. (Tr. 24, 111). Gabbard believed the condition of the 

loose boulder was Tabsolutely, 100 percentU a hazard, and if it if had come down it could have 

crushed people using the roadway below causing fatalities. (Tr. 25, 87). 

Gabbard stated that the road below the boulder was relatively narrow and there was a 

berm on the outside of the roadway to prevent falling over the bench to the lower work level. (Tr. 

25). On the highwall side of the roadway, there was a partial berm in place, but some sections 

were nowhere near the required distance of 10 feet away from the base of the highwall. The back 

of the berm almost touched the highwall. (Tr. 26). Gabbard did not measure the width of the 

road; however he estimated that it was approximately 17 feet wide. (Tr. 112). According to 

Gabbard, the area affected by the loose material would definitely include the travel route to the 

bench and possibly even the workstation below because the bench was so narrow. (Tr. 26). 

Gabbard opined that the condition had existed for a minimum of several weeks 

depending on when the bench had last been blasted or the last time there were severe rains. (Tr. 

29). He could tell there had recently been rain because the bench was very muddy. (Tr. 29). The 

37 FMSHRC Page 656
bench was in existence when Gabbard previously inspected the mine several months prior. (Tr. 

30). He also testified that this particular bench was exposed to scaling materials, drills, loaders, 

and supervisor`s trucks as well as foot traffic from blasters. (Tr. 31). He believed that if the 

excavator was located on the bench and it had been used, then it was an active machine that 

would have been on the bench during the time the loose condition existed. (Tr. 32). Gabbard 

only saw the miner who accompanied him on the inspection in the affected area, but testified that 

the area was active because it contained a running machine that had been operated. (Tr. 32). 

After spotting the condition, Gabbard stated that for about 40 minutes he and Kirby 

discussed getting the scaler off the bench and not exposing any miners to the loose condition. 

(Tr. 33). He testified that it was correct that he and Kirby were together at the time of the scaling. 

(Tr. 200). From where they were standing, he could not see where the boulder fell or any pieces 

of rock that might have fallen with it. (Tr. 200). Gabbard testified that the scaled material landed 

in the end of the berm that was right at the base of the highwall. (Tr. 35-36, 87). He testified the 

boulder did not clear the berm and that Kirby responded to this by saying, Tit didn`t clear the 

berm; it`s not a violation.U (Tr. 36). Gabbard believed it was still a violation but was influenced 

to lower it from Significant and Substantial (TS&SU) to non-S&S. (Tr. 36). 

Gabbard explained that it was still a violation because it could have cleared the 

inadequate berm had it bounced even the least bit to the west. (Tr. 37). Gabbard stated that based 

on his experience as a miner and as an inspector, it would not be possible to predict exactly how 

a loose boulder or loose material would fall. (Tr. 133). Gabbard suggested that if the boulder had 

fallen 10 separate times, it would not have fallen and landed the same way each time depending 

on what it hit, how much loose it knocked off, and what corner struck the wall. (Tr. 110). He 

believed they were very fortunate the pile of muck located right up against the face of the 

highwall was so soft and that the boulder went into this soft material. (Tr. 37). He testified that 

when the boulder fell into the leftover muck material, it sucked it in like Tdropping a rock in the 

mud.U (Tr. 37). He also stated that approximately 10 rocks did clear the berm and did come into 

the roadway although this was not in the citation. (Tr. 38, 87-88, 90). And, in reference to the 

large boulder at issue, he stated that it could have TabsolutelyU fallen in a different way, 

depending on its trajectory and how it struck the wall. (Tr. 39). Had the rock not been scaled, 

Gabbard testified that Tsomething very ugly could have happened,U with a potentially fatal 

accident due to vehicles and foot traffic on the bench. (Tr. 40-41). 

Gabbard would have expected only one miner to have been affected by the situation, as 

there would usually only be one person going past the dangerous situation at a time whether it 

was a driller, supervisor, or mechanic. (Tr. 41-42, 122). He stated there was no warning sign 

posted indicating loose. (Tr. 42-43). There was, however, a barrier of muck in place at the bench 

entry. (Tr. 42). 

Gabbard designated the citation as moderate negligence because the loose boulder was 

not highly obvious from one direction and could be overlooked. (GX-3, Tr. 44-45).2 He 

 2

 Hereinafter, Government exhibits will be referred to as TGxU followed by a number. 

Respondent`s exhibits will be referred to as TRxU followed by a number. 

37 FMSHRC Page 657
explained that he was not able to observe the boulder until he was on his way out of the bench. 

(Tr. 45). Gabbard found this to be a mitigating circumstance, which prevented a finding of high 

negligence. (Tr. 45). He also stated that Kirby was adamant that he was unaware of the loose 

boulder and Gabbard believed him. (Tr. 45). 

Gabbard is required to take notes during an inspection and he takes such notes from the 

time that he steps out of his vehicle until the time that he gets back in. (Tr. 45). These notes then 

become part of the report that he turns into his field office supervisor.3 (Tr. 45). Gabbard took 

field notes during his inspection of Laurel Quarry in December 2012. (Tr. 46.) His notes contain 

in pertinent part: 

Loose ground conditions were above the roadway to the upper . . . ABC bench. 

Access to this roadway had been bermed off but was opened so the equipment on 

the bench could be inspected. The workers` pickup and the supervisor`s pickup 

both travel past the loose, which was hard to see from the entry view. Upon 

exiting the bench, this AR spotted and pointed out loose ground overhanging the 

roadway. The rock was approximately five foot by five foot by three foot cubed 

and was cracked loose to where open sky . . . could be seen behind the loose in 

one section. . . . The area was barricaded immediately. The excavator operator 

moved the berm with a dozer and drove a pickup past the loose. . . . When scaled, 

the loose was caught by the berm. The boulder did scale easily but did not clear 

the berm and enter the roadway. 

(Tr. 48-49, GX-4). 

His notes further indicated (1) that he had marked injury or illness as reasonably likely, 

but after further discussion he changed his marking to unlikely, (2) that the inspection party had 

travelled past the loose l this being the exposure, and that if left in this condition, it would be 

traveled past again, (3) the injury would be fatal by a crushing injury from a falling boulder, (4) 

the number of persons affected would be one l the next person in the area, and (5) the negligence 

was moderate due to the lack of visibility when approaching the bench, recent rains could have 

loosened material around the boulder, and the agent was adamant he was unaware of the 

condition. (Tr. 49-50; GX-3, 4) 

Gabbard testified regarding details from the Regular Inspection Information form, which 

is an official U.S. Department of Labor, Mine Safety and Health Administration document. (GX6). In the document citation number 8724144 was considered a non S&S violation because the 

boulder did not cross the protective berm when it was scaled and only smaller pieces entered the 

roadway. (Tr. 55). Gabbard explained that he referenced the protective berm in the citation 

because the berm was supposed to be 10 feet away from the base of the highwall, but in this case 

it was only four or five feet away. (Tr. 55-56). He stated the boulder ended up falling into the 

berm, but smaller rocks did enter the roadway. (Tr. 56). He only mentioned these rocks in his 

typed closeout notes. (Tr. 100). 

 3

 The field notes are available at GX-4. 

37 FMSHRC Page 658
Gabbard took photos of both the violation and its abatement. (Tr. 56). These photographs 

comprised Government Exhibit 7, A-J. (Tr. 57.). During Gabbard`s testimony, he gave a 

description of and explained what was portrayed in each photo. GX-7A was described as a 

picture of the boulder at issue. It showed how the sky could be seen on the left side where there 

was a crack, and how it appeared that nearly 70 percent of the boulder was not supported. (Tr. 

58, GX-7A). GX-7B captured the boulder`s profile where a crack could be seen with air going 

through it. (Tr. 58; GX-7B). GX-7C displayed a profile picture of the wall itself and other rocks 

that were protruding from it, which could have potentially affected the trajectory of the boulder 

when it was taken down. Gabbard explained that this particular photograph was also taken to 

show the road condition, the loose material, and to give perspective on the distance because it 

was deceiving. (Tr. 59-60). After examining GX-7C and RX-5, Gabbard explained that the berm 

ended before the end of the highwall and part of the slope shown in the photographs had to be 

treated as a highwall because it was so significant, and there was no berm at that point. (Tr. 202). 

Gabbard testified that the boulder came down pretty much right at the junction where the berm 

ended and the muck material began. (Tr. 204). Gabbard stated that there was no distance between 

the boulder and the face of the highwall and that nowhere in GX-15 could you see a definitive 

berm pulled out from the face at least 10 feet. (Tr. 205). 

Gabbard testified that GX-7D was basically the same photograph as GX-7C except that it 

showed muck material at the bottom of the wall. (Tr. 63). Gabbard stated that on this side of the 

wall there was no berm whatsoever, only the muck pile, which could have caused any material 

that fell to gain speed. (Tr. 63). 

He stated GX-7E was taken from the intake side to show that not only was the bottom of 

the boulder not connected to the wall, but also that there was a crack on the boulder`s right side 

which extended back to where the boulder was not connected on the right side. (Tr. 64). 

Gabbard testified that GX-7F depicted the boulder near the left of the picture and how the 

berm was nearly non-existent below the wall. (Tr. 65). He stated that most of the material near 

the base of the wall was primarily muck which could help the rock speed up, and in the far low 

right corner of the picture you could see where the berm began. (Tr. 65) 

He said GX-7G showed the highwall after the boulder had been removed. (Tr. 66). 

Gabbard described GX-7H as a picture of the boulder after it was scaled from the highwall. (Tr. 

67). He explained that the boulder landed approximately four to six feet away from the wall and 

that only half of it could be seen as the rest was buried in the soft muck. (Tr. 67). 

Gabbard described GX-7I as an additional picture of the boulder where it landed in the 

loose material. (Tr. 68). Finally, he testified about GX-7J and explained that this photo was taken 

to show how there was not a proper berm in place and that additional rocks did fall into the 

roadway after the boulder was scaled. (Tr. 68) Red circles were drawn around the rocks in GX15 since he did not have anything in writing describing which rocks had fallen in the road. (Tr. 

102-103). Gabbard knew these rocks cleared the berm because they were fresh and not the same 

texture or color, and were drier, making it fairly obvious they came off the highwall with the 

boulder. (Tr. 69, 102-103). This exhibit showed all the pieces as they were right after the boulder 

was scaled, except for one rock that had been moved out of the roadway. (Tr. 69, 107). 

37 FMSHRC Page 659
Gabbard testified that Tthe citation would not have been issued if the berm had been the 

proper distance back and the proper height up in order to prevent the boulder from clearing the 

berm.U (Tr. 71-72). To be considered an adequate barrier, the berm would have to have been the 

required 25 percent from the wall to where it began. (Tr. 72). Estimating the highwall at 

approximately 40 feet would require the beginning of the berm to be at least 10 feet from the 

base of the wall. (Tr. 72). Gabbard explained that there was not enough room on the bench to 

create an adequate berm because the road was so narrow. (Tr. 73). MSHA provides an online 

handbook as well as policies on CD that can be referenced for guidance on how to properly build 

berms, and they are updated frequently. (Tr. 73l74). 

The Haul Road Inspection Handbook provides guidance on how to use berms to protect 

miners from rock falls. (Tr. 76). Gabbard read from page 3 to explain how as a rule of thumb, Ta 

barricade should be placed a distance out from the wall of either 15 feet, or one-fourth of the 

wall height, whichever value is greater.U (Tr. 76). The handbook also provides that the height of 

the barricade should be at least four feet; and where the highwall height exceeds 60 feet, 

barricades should be at least six feet high. (Tr. 76; GX-8). Gabbard testified that the protective 

berm was not four feet high in all places; in some instances the muck was more than four feet 

high, but there was not a constructive berm that was more than four feet high. (Tr. 76). He 

explained that in order for the berm to have met the 25 percent requirement, it should have been 

a minimum of 10 feet from the base of the wall to where the back side of the berm begins. (Tr. 

77). According to Gabbard, the berm on the highwall side and below the loose ground conditions 

did not resemble these minimum dimensions at all. (Tr. 77). Gabbard further testified that he also 

uses the Highwall and Pit Enforcement Guidance document dated April 21, 2010, for guidance 

on how to use berms to protect from rock falls. (Tr. 79; GX-9). This document reduced to writing 

MSHA`s policy that a protective berm should be out from the base of the highwall a distance of 

25 percent of the height of the highwall. (Tr. 79). 

Testimony of James Ollie Kirby

James Ollie Kirby is a plant manager for Lehigh Hanson, which includes Hanson 

Aggregates Midwest. (Tr. 138). He is the plant manager at Laurel Quarry in Somerset, Pulaski 

County, Kentucky where he is responsible for communicating with his employees, safety, and 

ensuring the plant operation runs okay. (Tr. 138). He sometimes operates machinery himself and 

supervises a total of 16 employees. (Tr. 138-39). Kirby has been with Hanson Aggregates for 39 

years. (Tr. 139). He has worked in the mining industry since 1997 and was in the construction 

business for the remainder of the time. (Tr. 139-40). In addition to working as a plant manager, 

Kirby also worked as a maintenance mechanic and an equipment operator. (Tr. 140). Most of his 

experience has been with surface mining. (Tr. 140). 

Kirby was familiar with the highwall that was cited in this case, and he accompanied the 

Inspector during the inspection. (Tr. 140-41). Laurel Quarry is a surface mine that mines 

limestone aggregate. (Tr. 141). Production generally begins by removing the overburden to get to 

the rock, which is then drilled and blasted. (Tr. 141) Laurel Quarry has multiple highwalls, some 

are active and others are inactive. (Tr. 141-42). Kirby testified that there is a safety program at 

the mine including weekly toolbox meetings, annual safety audits, emails on safety concerns, and 

MSHA fatality alerts. (Tr. 142). 

37 FMSHRC Page 660
Kirby testified that when at the mine he examines the active highwalls every day to 

ensure that they are safe, meaning no loose rock material and adequate berms. (Tr. 143). If Kirby 

is unavailable, other employees are trained in highwall safety and will sometimes help with the 

examinations. (Tr. 143-144). Kirby reviews all workplace examinations after they are conducted 

and if conditions needing correction are found, they are corrected. (Tr. 144). 

Kirby described the highwall at issue, which was located on the north side of the pit. (Tr. 

145). He said it was the highest wall at the mine. The AT bench was located right in front of the 

wall. (Tr. 145). There was also a wall on the bench below, the ABC bench. Kirby explained the 

layout -- first you have the overburden, then the AT bench, and then the ABC bench below the 

AT. (Tr. 146). The boulder at issue was on the highwall above the AT bench. (Tr. 146). 

Kirby testified that he had recently measured the distance between the berm and the wall 

in the area where the boulder was located. (Tr. 146). He said that the berm and the wall had been 

untouched since the time of the inspection. (Tr. 147). Kirby measured a distance of 15 feet from 

the inside of the berm to the base of the wall and 18 feet from the center of the berm to the base 

of the wall. (Tr. 147). He estimated that the wall was anywhere was from 35-40 feet tall. (Tr. 

147). With that estimation, the measurements he took would be approximately 30 percent of the 

height of the wall, which was more than the required 25 percent. (Tr. 147). Kirby also measured 

the width of the roadbed from the inside edge of the base of both berms and found it to be 25 feet 

wide. (Tr. 148-49). He testified that the road was not used very much given that it was inactive. 

(Tr. 149). Kirby remembered last being there on November 1, 2012 based on his blasting and 

drill logs, which he had just recently looked at within the last few weeks. (Tr. 150). 

At the time of inspection, the whole bench was blocked off by a berm. (Tr. 150-51). 

Kirby stated that when the bench was last used in early November whoever was working would 

have been on a different part of the bench in an area past where the boulder was located. (Tr. 

151-52). He explained that the bench dead-ends approximately 100 to 125 feet past where the 

boulder was located. (Tr. 152). 

Kirby explained that they drove onto this bench during the inspection because of an 

excavator that was parked on the other side of the berm barricade that Gabbard wanted to 

inspect. (Tr. 153-54). The barricade had to be opened in order for them to get through to the 

excavator, which was located on the east end of the bench. (Tr. 154-55). Kirby asked his 

excavator operator to come up and start the excavator so it could be inspected. (Tr. 155). During 

the trip, they first crossed the barricade and then saw the excavator before they approached the 

area where the boulder was located. (Tr. 155). The last time that the excavator had been used was 

in late October when it was used for removing material from the wall for the ABC bench. (Tr. 

155-56). He stated that somebody would have had to cross in front of the boulder in that early 

part of November. (Tr. 176) Kirby testified that the excavator had been parked in that area 

because it was a Tpretty good sizeU and they did not have another need for it so they let it sit. (Tr. 

156). Gabbard did not issue any citations for the excavator. (Tr. 156). 

After the inspection, the excavator operator left, leaving only Kirby and Gabbard. (Tr. 

157). Gabbard wanted to drive out on the bench while they were still up there, which they did, 

and Gabbard began inspecting the highwall. (Tr. 157-58). Neither Kirby nor Gabbard saw the 

37 FMSHRC Page 661
boulder when driving past the highwall for the first time. (Tr. 158). It was not until they were on 

their way back that they could both see the crack behind the boulder. (Tr. 158-59). Gabbard told 

Kirby that they had a problem, and Kirby agreed. (Tr. 160). Kirby reminded Gabbard that he had 

a berm, but Gabbard did not think the berm could catch the boulder. (Tr. 160). Kirby asked 

Gabbard to let him get the excavator and push the boulder off the wall and see where it would 

land. (Tr. 160). Gabbard agreed to that plan. (Tr. 160). 

Kirby testified that they had a lot of rain in October and November and speculated that 

the gap behind the boulder was due to the rain. (Tr. 160-61). He stated that he had previously 

examined this highwall and had not seen the boulder in that condition. (Tr. 161). According to 

Kirby, Gabbard never mentioned the berm being inadequate during their discussions. (Tr. 161). 

The excavator operator was called back up to do the scaling; he had to go all the way 

around the pit to the west side and come up to get to the boulder. (Tr. 162). The excavator did 

not have to drive past the boulder to get to this position. (Tr. 162). When the operator had the 

excavator in position, he was told to go ahead and push it off. (Tr. 163). Kirby estimated that he 

and inspector Gabbard were about 350 yards from the boulder when it was scaled. (Tr. 164). Due 

to the elevation, they could not see whether any other rocks fell along with the boulder. (Tr. 164-

165). Kirby took a photograph on July 7, 2014 of the area on the wall where the boulder came 

off, and he testified that the area had been inactive up until the date of the photograph. (Tr. 168, 

Rx-4). 

After the scaling was completed, Kirby and Gabbard went to inspect the boulder without 

making any other stops. (Tr. 169). Kirby testified that he saw where the boulder had fallen 

behind the berm, but did not see any rocks that had fallen into the roadway. (Tr. 170-171). He 

did not move any rocks from the roadway and did not know of anybody else moving any rocks. 

(Tr. 171-72). Kirby testified that the inspector was surprised to see that the boulder stayed behind 

the berm; basically that the berm did its job. (Tr. 172). Kirby believed the berm was in the right 

position to protect the miners because it was the right height and distance from the highwall. (Tr. 

172, 174). 

When asked about GX-7C, Kirby testified that it showed a pile of sandstone, shale and 

dirt that was piled up against the wall. (Tr. 185). He agreed that there was no space between that 

material and the wall and that it was sloped towards the road. (Tr. 185). Kirby also agreed that 

there was supposed to be a space between the wall and where the berm started. (Tr. 185). He 

explained that what was shown in GX-7C was not a picture of a highwall and was not the same 

wall the boulder was located on. (Tr. 186). He marked GX-16 to show where he saw a berm. (Tr. 

187). 

Kirby identified GX-14 as a picture of the scaled boulder. (Tr. 189). He agreed that there 

was material directly up against the wall, but that it was not part of the berm which was located 

on the south side of the picture. (Tr. 189). Kirby also examined GX-7C in comparison with RX-4 

and noted that you could see the same area in displayed in GX-7C in RX-4. (Tr. 192). Kirby 

could not see the edge of the berm displayed in GX-7C in RX-4. (Tr. 192). He could, however, 

see where the highwall ended out past the boulder in both exhibits. (Tr. 193). Kirby marked on 

37 FMSHRC Page 662
RX-4 where the highwall ended and the material began to slope up against the wall. (Tr. 196, 

Rx-5). He testified that the sloped material began after the highwall ended. (Tr. 196). 

Kirby told the inspector he did not agree with the citation because the berm held the 

boulder. (Tr. 173). Kirby did not think the boulder was loose. (Tr. 174). Kirby examined exhibit 

GX-7A and testified that the he could see sky through the crack behind the rock, and felt that the 

rock was not secure but he would not say it was loose. (Tr. 182). 

CONTENTIONS OF THE PARTIES 

The Secretary contends that Respondent violated 30 C.F.R. § 56.3200, that the violation 

could have resulted in a fatal injury to one miner, that the violation resulted from the operator`s 

moderate negligence, and that the assessed penalty of $127.00 is appropriate in light of the six 

110(i) criteria. See Sec%y Post-Hearing Brief at pp. 6-11. 

Respondent contends that it did not violate 30 C.F.R. § 56.3200 because there was no 

hazardous ground condition. Assuming arguendo that there was a hazardous ground condition, 

Respondent asserts that no employees would have been exposed to the hazard because the 

workbench was inactive. See Respondent%s Post-Hearing Brief at pp. 8, 17. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact are based on the record as a whole and the undersigned`s careful 

observation of the witnesses during their testimony. In resolving any conflicts in testimony, the 

undersigned has taken into consideration the interests of the witnesses, or lack thereof, and 

consistencies, or inconsistencies, in each witness`s testimony and between the testimonies of the 

witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his 

demeanor. Any failure to provide detail as to each witness`s testimony is not to be deemed a 

failure on the undersigned`s part to have fully considered it. The fact that some evidence is not 

discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th 

Cir. 2000)(administrative law judge is not required to discuss all evidence and failure to cited 

specific evidence does not mean it was not considered). 

Respondent Violated 30 C.F.R. § 56.3200

On December 5, 2012, at 1355 hours MSHA Inspector Donald Michael Gabbard issued 

this citation with the following Condition or Practice: 

Loose Ground conditions were observed above the access road to the ABC level 

workbench. An approximate 5ft x 5ft x 3ft loose boulder was approx. 40 ft. above 

the travel route. This condition would expose persons using the route to crushing 

hazards if the boulder cleared the berm at the base of the highwall when falling. 

The roadway was used today to access the excavator on the bench. Crushing 

injury from falling material can be fatal. 

37 FMSHRC Page 663
The Termination Action indicated that the boulder was effectively scaled down. It did not 

cross the berm and enter the roadway. The Citation was terminated at 1405 hours. (Gx-3). 

The cited standard, 30 C.F.R. §56.3200 provides the following: 

Ground conditions that create a hazard to persons shall be taken down or 

supported before other work or travel is permitted in the affected area. Until 

corrective work is completed, the area shall be posted with a warning against 

entry and, when left unattended, a barrier shall be installed to impede 

unauthorized entry. 

There is no general requirement that a violation of a regulation must create a safety 

hazard for a valid citation to issue. If conditions exist which violate the regulation, a citation is 

proper. Allied Products, Inc., 666F.2d 890, 892-893 (5th Cir. 1982). Commission case law is 

consistent with this principle in that section 56.3200 Trequires that operators restrict miners` 

access to areas where hazardous conditions exist, whether or not it is likely that the hazard will 

result in an injury.U Cyrpus Tonopah Mining Corp., 15 FMSHRC 367, (March 1993). In order to 

establish a violation of section 56.3200, the Secretary must demonstrate the operator`s failure to 

maintain highwall stability by correcting hazardous conditions before work or travel is permitted 

in an affected area. See Connolly-Pacific Co., 36 FMSHRC 1549, 1553 (June 2014). Whether a 

violation has occurred is measured against the standard of whether a Treasonably prudent 

personU familiar with the factual circumstances would recognize that a hazard existed within the 

purview of the applicable standard. Id. (citing Spartan Mining Co., 30 FMSHRC 699, 711 (Aug. 

2008). 

The Commission has affirmed the determination of an ALJ that §56.3200 was violated 

where a high spoil pile and a slope had not been taken down to prevent rocks from falling and 

miners were allowed to work and travel in an adjacent area. Bellefonte Lime Company, Inc., 20 

FMSHRC 1250, 1251 (Nov. 1998). In a case involving rocks on top of a highwall that were in 

danger of falling in an area that was not barricaded Judge Manning found there was a violation 

of §56.3200. I agree with his analysis of the two parts of the safety standard: 

The safety standard provides that T[g]round conditions that create a hazard to persons 

shall be taken down or supported before other work or travel is permitted in the affected 

area.G (Emphasis added). The second part of the safety standard provides that H[u]ntil 

the corrective work is completed, the area shall be posted with a warning against entry 

and, when left unattended, a barrier shall be installed to impede unauthorized entry.U

Secretary v. Lehigh Southwest Cement Co., 33 FMSHRC 340, 349 (Feb. 2011)(Emphasis 

added). 

In Secretary v. Hoover, Inc., 33 FMSHRC 751, 756 (Mar. 2011) Judge Miller found that 

where there was loose material on a highwall and the area had not been bermed-off or barricaded 

there was a violation of §56.3200. The Judge pointed out that the mine could have barricaded the 

area if it did not want to scale the highwall, but failed to do so. 

37 FMSHRC Page 664
In the instant case the AT bench had been barricaded with a berm. Along the highwall 

side of the bench, there was muck material also referred to as a berm. However, the presence of 

muck or berm at the base of a highwall does not change the fact of a hazard presented by loose 

unconsolidated material, such as the large boulder, high on the face of the highwall. It follows 

that I do not find persuasive decisions suggesting that muck or berm at the base of a highwall 

means the loose material on a highwall that has not fallen does not constitute a hazard.4 This is 

because in any given fall of rock the path and presence of obstacles that could change the path or 

trajectory of the rock, including the shape and size of the rock itself, would preclude precise 

prediction of the final resting spot. 

The serious nature of the loose boulder observed by Gabbard is underscored by the 

overall conditions on the AT bench that day. Gabbard went to great lengths at hearing to 

establish that the berm that did exist did not meet MSHA`s safety standards. (Tr. 22, 26, 44, 68, 

71-73). Gabbard`s testimony and the photographs support a finding that the berm material was 

not 10 to 15 feet from the base of the highwall to the beginning of the back of the berm. The road 

was narrow and there was not enough room for these dimensions to be met. I credit Gabbard`s 

estimates that the bench was only 17 feet wide considering the outside berm, and hence there 

was insuffient width to accommodate an adequate berm pulled out 10 feet from the base of the 

highwall (GX-7C, GX-7D, GX-7F, GX-7J, GX-15). Kirby`s reported measurements suggesting a 

much wider bench were taken long after the date of the citation, just before the hearing. His 

testimony is not supported by the contemporaneous photographs, and exactly where he made any 

such measurements was not documented. Certainly, the photographs in RX-4 and RX-5 are from 

a distance and not helpful. It is for these reasons that I place greater weight on the observations 

and estimates made by Inspector Gabbard at the time of the citation than the attempt by Kirby to 

discredit Gabbard`s conclusions. 

It was fortunate in this case that the large boulder happened to land in muck that was soft 

enough to absorb the impact and hold it against further bounce or travel. But the result could 

have been different, had it landed on a more solid pile of material and bounced, or been projected 

by obstacles in its path to go beyond the muck. Further, the photographs and testimony do show 

that some smaller rocks did fall onto the roadway. The presence of these fresh smaller rocks on 

the bench roadway supports the opinion of Inspector Gabbard that the berm was not adequate 

and the path of falling rock cannot be precisely predicted. To prevent violation of the safety 

standard, where there is loose unconsolidated material on a highwall, the area must be barricaded 

and a warning sign posted until such time as scaling is performed and completed. 

The barricade to the bench was removed and the inspection party travelled along the AT 

and under the boulder before any scaling took place. As observed by Judge Lewis, under strict 

liability standards, Respondent Thad the responsibility to ensure that its mine site was safe and 

that any hazardous highwall condition be corrected.U Secretary v. Tulsa Stone Company, 35 

FMSHRC 3392, 3398 (Nov. 2013). When a violation of the Act is found, operators are 

mandatorily subject to strict liability pursuant to section 110(a) of the Act, 30 U.S.C. § 820(a). 

 4

 See, Chico Crushed Stone Partnership, 15 FMSHRC 524 (Mar. 1993)(ALJ), Hanson 

Aggregates Southeast, 28 FMSHRC 1049 (Nov. 2006)(ALJ), Nelson Quarries, Inc., 30 

FMSHRC 254 (Apr. 2008)(ALJ). 

37 FMSHRC Page 665
See Wake Stone Corp., 2014 WL 1870764 (April 2014). Before, or upon, removal of the 

barricade the highwall should have been scaled before any access to the area was allowed. 

The Secretary presented sufficient evidence of a hazardous condition associated with the 

highwall above the AT bench at Respondent`s mine to establish a violation of § 56.3200. In 

making this finding, I rely primarily on the testimony of Inspector Gabbard who observed a loose 

boulder perched on the side of a highwall that was approximately 40 feet tall during his 

inspection of the subject mine on December 5, 2012. (Tr. 16-18, 23). Gabbard reasonably 

estimated the boulder was approximately 5ft x 5ft x 3ft in dimension and weighed 11,000 

pounds. (Tr. 17-18, 23-24, 111). I credit Gabbard`s testimony that he knew the boulder was loose 

because it was sitting on the highwall independently and he could see air or daylight behind the 

fractures on the side of it. (Tr. 23). The boulder was overhanging the roadway, sitting loose 

independently, not connected underneath to the wall, and nearly 70 percent was not supported. 

(TR. 23, 58, 64; GX-5, GX-7E) Given its loose condition, Gabbard considered it to be a definite 

hazard, and if it had come down off the highwall it could have caused a crushing fatality. (Tr. 

25). Photographs of both the hazard and its abatement were taken during Gabbard`s inspection, 

which were admitted into evidence at the hearing. (Tr. 56-69). GX-7A clearly depicted the crack 

on the left side of the boulder and it does also appear that nearly 70 percent of the boulder was 

unsupported. (Tr. 58, GX-7A). There were smaller rocks that had fallen out beyond any highwall 

berm and onto the roadway. (GX-15). 

Kirby testified that in his opinion the boulder was not loose on the day of the inspection 

even though he agreed air could be seen coming through the crack. (Tr. 174, 182). His position 

was that the boulder did not pose a hazard, although it did need to be Ttaken care ofU because if a 

rock that size became unstable it could fall off the highwall. (Tr. 183). However, unlike Inspector 

Gabbard, Kirby offered no reasons to support his conclusion that the rock was not unstable. 

Rather, his argument rested primarily on his repeated claim that it needed to be addressed even 

though it was not loose. Yet, while maintaining it was not loose, he would not say it was 

TsecureU. (Tr. 182, 183). I do not find his testimony to be credible. The evidence presented 

clearly shows that the boulder was was cracking off the highwall because air could be seen 

through those cracks. A boulder of that size and magnitude that has become loosened from the 

highwall is most definitely a hazardous ground condition within the meaning of the cited 

standard. 

The evidence further reflects that travel was permitted in the affected area before the 

hazardous condition was corrected. Prior to the inspection, the large boulder had not been 

removed or supported in any way. (Tr. 42). Kirby testified that this particular bench had not been 

used since the early part of November when they were last blasting, and he had not previously 

seen the boulder in this condition. (Tr. 149, 161, 175-76, 197). Perhaps, as Gabbard believed, 

Kirby did not know about the overhanging boulder. But under strict liability he should have 

known, since it is the responsibility of the operator to insure the safety of miners at the mine. 

Yet, during the inspection, the worker`s truck and the supervisor`s truck were both driven past 

the hazardous condition in route to examine the excavator that was located beyond the boulder 

thus exposing the excavator operator, the inspector, and the supervisor to the hazard before the 

condition was abated. (Tr. 48-49, 115,153-54,). 

37 FMSHRC Page 666
Inspector Gabbard believed the area had been active; however, it was inactive on the day 

of the inspection. The barricade to the AT was in place until it was opened to give access to the 

inspection party. (Tr. 115-16, 118, 154-55). Although Kirby testified the area had been inactive 

about a month, the excavator had not been tagged out, and he admitted that either he or the 

operator would have to travel past the boulder to remove the excavator if it was needed at 

another location. (Tr. 120, 180-82). Moving the excavator would again have resulted in exposure 

to the hazardous condition. (Tr. 119-120). Moreover, although the affected area had been 

barricaded off, there was no signage posted to warn against entry as required by the cited 

standard. (Tr. 42, 118). 

Considering the loose condition of the boulder, Gabbard credibly testified that had it 

fallen on its own it could have taken a different path based on its trajectory and how it struck the 

wall. (Tr. 39, 110). This unstable condition clearly created a hazard to those present during the 

inspection and any other worker who may have travelled down the AT bench to retrieve the 

excavator or perform other work. 

Respondent argues that the boulder did not pose a hazard because the berm effectively 

caught it when it was scaled off the highwall. See Respondent%s Post-Hearing Brief at p. 8. 

However, this argument must fail. The hazard existed because of the loose boulder on the 

highwall that could have fallen at any time crushing whoever was below; it existed prior to the 

scaling. Whether it was effectively scaled and caught by the berm is after-the-fact and of no 

consequence to determining if there was a violation of the cited standard. 

The hazardous condition posed by the boulder was not abated prior to travel in the 

affected area, and the area was not posted with a warning sign against entry. As such, I find that 

the Secretary has established by a preponderance of the evidence that a violation of the cited 

standard occurred. 

Gravity and Negligence 

The Mine Act requires that the Tgravity of the violationU be considered in assessing a 

penalty. 30 U.S.C. § 820. Gravity is an evaluation of the seriousness of the violation. The 

Secretary has promulgated a three-factor inquiry to determine the gravity of a citation for 

purposes of calculating the penalty. Those factors are the likelihood of the occurrence of the 

event against which a standard is directed, the severity of the illness or injury if the event has 

occurred or was to occur, and the number of persons potentially affected if the event has 

occurred or were to occur. 30 C.F.R. § 100.3(e). 

Given the fact that the area had been barricaded off and the boulder was caught when it 

was scaled, I agree with Gabbard`s testimony that it was TunlikelyU injury would have occurred. 

(Tr. 49-50, 92). But I also agree with Gabbard that had an injury occurred it would have been to 

one individual and it would have been fatal by a crushing injury from the falling boulder. (Tr. 41, 

49-50, 122). 

Negligence is conduct, either by commission or omission, which falls below a standard of 

care established under the Mine Act to protect miners against the risks of harm. Under the Mine 

37 FMSHRC Page 667
Act, an operator is held to a high standard of care. Moderate negligence is where the operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances. Low negligence is where the operator knew or should have known of the 

violative condition or practice, but there are considerable mitigating circumstances. 30 C.F.R. § 

100.3(d). 

I agree with Inspector Gabbard`s determination that the difficulty in observing the 

boulder was a mitigating factor. He and Kirby did not see the boulder when they drove onto the 

AT bench past the highwall for the first time. (Tr. 20, 44-45, 158). It was not until they were on 

their way back out that they could see the crack behind the boulder. (Tr. 45,158-59) Testimony 

from both Gabbard and Kirby indicated that there had recently been heavy rains in the area, (Tr. 

29, 113, 160-61) and it is possible the rain either caused or accelerated the loosening of the 

boulder. Given that the precarious position and loosened condition of the boulder was not 

obvious, the possibility of weather factors, and that Kirby was adamant he was unaware of the 

condition, Gabbard determined the negligence to be moderate. 

There are however, additional factors that Gabbard did not take into consideration. The 

bench beneath the highwall was barricaded against entry at the time of the inspection and 

probably for a period of time before the inspection. (Tr. 20-21, 42, 115-16, 150-51, 175-76). 

Furthermore, this material was only moved for purposes of the inspection. (Tr. 115-16). Kirby 

testified that nobody had even been to the AT bench since November when they were last 

blasting. I have found, above, that Kirby`s testimony was not credible. However, it reasonable to 

conclude that the AT bench was inactive for some period of time. It is, simply, that on this record 

that period of time cannot be determined with accuracy. Further, notwithstanding the 

nonconforming berm material and the narrow bench, the boulder did not fall onto the road. There 

was no dispute at hearing that when the boulder was scaled off the highwall the material at the 

base of the highwall on the AT bench did catch the boulder. (Tr. 35-36, 54, 56, 68, 87). While I 

am not in agreement, Gabbard did testify that the citation would not have been issued if there had 

been a berm meeting the guidlines published. By MSHA. 

Based on the above discussion of mitigating circumstances, I find that Respondent acted 

with low negligence when it violated section 56.3200. 

Penalty

In this matter, the Secretary proposed a penalty of $127.00 for Citation No. 8274144. 

When assessing a civil penalty, the Commission has affirmed that ALJs are not bound by the 

Secretary`s proposals. See 30 U.S.C. § 820(i); Performance Coal Co., 2013 WL 4140438 (Aug. 

2013) (citing Cantera Green, 22 FMSHRC 616, 620-21 (May 2000)). Rather, the ALJ is 

independently responsible for determining the amount of the penalty in accordance with the six 

statutory criteria set forth in section 110(i) of the Act: 

[1] the operator`s history of previous violations, [2] the appropriateness of the 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 

37 FMSHRC Page 668
violation, and [6] the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. Id. 

I have considered all six statutory penalty criteria. Laurel Quarry is a small mine with 

only 37,584 hours worked in 2012. During the approximate two years preceding the current 

violation, Laurel Quarry was only issued a total of eight citations, none of which were for a 

violation of section 56.3200. I find this to be a low history of violations. The parties stipulated 

that the Secretary`s proposed penalty amount of $127.00 would not affect the operator`s ability 

to continue in business. They further stipulated that the citation was timely abated in good faith. 

As discussed supra, the Respondent acted with low negligence. Therefore, I reduce the civil 

penalty assessed to $100 for this violation. 

ORDER

For the reasons set forth above, Citation No. 8724144 is MODIFIED to reduce the 

negligence from moderate to low. Hanson Aggregates Midwest, LLC is ORDERED TO PAY

the Secretary of Labor the sum of $100.00 within 30 days of the date of this decision.5

 

/s/ Kenneth R. Andrews

 Kenneth R. Andrews 

 Administrative Law Judge 

Distribution: (U.S. Certified Mail) 

Emily O. Roberts, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue 

North, Suite 420, Nashville, TN 37219 

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, NW, 

Washington, D.C. 20006 

 5

 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 

37 FMSHRC Page 669
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 24, 2015 

 

DECISION AND ORDER

Appearances: Brooke D. Werner McEckron, Esq., U. S. Department of Labor, Office of 

the Solicitor, Atlanta, GA for Petitioner 

 Joshua Conrad, Plant Superintendent, A Mining Group, LLC, Lamont, FL 

for Respondent 

Before: Judge Rae 

 This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

 This docket involves one citation issued under section 104(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820, (the YActZ or YMine ActZ), for a violation of 

mandatory standard 30 C.F.R. § 56.4201(a)(2). A hearing was held in Tallahassee, Florida on 

March 10, 2015 at which time the parties presented evidence and made closing arguments. For 

the reasons set forth below, I find the violation has been established and I modify the gravity and 

negligence and assess a penalty of $100.00. 

 

 On January 7, 2014, MSHA inspector John Howerton conducted a regular inspection of 

the Bushy Hammock limestone mine operated by A Mining Group, LLC (YA MiningZ). A 

Mining employs twenty miners at this location. The mine has five towers, two levels each, on 

which 7,000 gallons of water are poured over screens where the limestone is washed and sorted 

and then dropped onto a conveyer belt below. During his inspection, Howerton found that a fire 

extinguisher on one of the towers had not had its annual inspection completed; it was two months 

overdue. He issued Citation Number 8732840 under the mandatory standard which requires that 

all firefighting equipment be inspected at least every twelve months to ensure the mechanical 

parts, the amount and condition of extinguishing agent and expellant, and the nose, nozzle and 

vessel are in effective operating condition.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

A MINING GROUP, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2014-194M 

A.C. No. 08-01340-343320 

Mine: Bushy Hammock Quarry 

37 FMSHRC Page 670
 

 Howerton assessed the violation as unlikely to cause an injury and of moderate 

negligence affecting one person. Should an injury occur it would be expected to be permanently 

disabling. Ex. S-1. The Secretary seeks a penalty of $285.00. 

 A Mining has stipulated to the fact that the inspection had not been done.1 It argues, 

however, that it had been using the services of an independent contractor for at least the past 

eight years to perform the annual inspections. Tr. 37. The contractor, it argues, rather than A 

Mining, should have been cited for the violation. A Mining also argues that this fire extinguisher 

was not required by the regulations, which Howerton confirmed, and therefore should not have 

been cited. 

The regulation imposes strict liability requiring only that all fire extinguishers in service 

must be inspected annually, regardless of whether they are required by another regulation. This 

fire extinguisher was in service and available for use by the miners. The fact that a citation would 

not have been issued had it not been in place, does not overcome the requirements of the 

regulation. The Act further imposes liability upon operators for the violations committed by an 

independent contractor. See Asarco, Inc.-Northwestern Mining Dep8t v. FMSHRC, 868 F.2d 

1195 (10th Cir. 1989). I am therefore compelled to find the citation was properly assessed 

against A Mining. 

The Secretary argues that the gravity of this violation is unlikely to result in an injurycausing event; however, he asserts there was a risk of an electrical motor or grease fire which 

would cause permanently disabling injuries as a result of the violation. He also asserts the 

operatorhs negligence is moderate because both monthly inspections of the fire extinguisher and 

daily workplace examinations of the towers were required; therefore, despite having a contractor 

to conduct the annual inspections, the operator should have discovered that the annual inspection 

had not been performed. 

A Mining contests the moderate negligence assessment based upon the fact that the 

contractor was responsible for inspecting this equipment and they discharged the contractorhs 

services as soon as they learned of this violation. Additionally, they argue that there were 

multiple factors which made the possibility of a fire virtually nonexistent, which I have 

considered regarding the gravity of the violation. 

Conrad testified that each of the five towers is equipped with two to four fire 

extinguishers as well as two-inch fire hoses on each deck which also serve as a fire suppression 

system. Tr. 29. The office, tunnels, and motor control center each have five fire extinguishers in 

them as do all of the twenty pieces of equipment they operate, including the welding carts and 

trucks. In all, there are more than 50 fire extinguishers on the property. Tr. 6, 25, 37. When the 

mine is in operation, the screens are doused with 7,000 gallons of water to wash the stone, which 

Howerton agreed would prevent a fire. Tr. 24. The tower is accessed by miners to perform 

maintenance work such as welding when the washer is not in operation, which Howerton opined 

 1

 The parties have also stipulated to the jurisdiction of Mine Act over the mine as well as 

the jurisdiction of the Federal Mine Safety and Health Review Commission and its judges over 

this proceeding. They also stipulate to the authenticity of the citation, the size of the operator, 

and the history of prior violations for penalty purposes. Joint Ex. 1. 

37 FMSHRC Page 671
 

would be the most likely cause of a fire. Tr. 24-25. The towers are not only equipped with fire 

extinguishers but when maintenance welding is done, as Conrad explained, the miners put down 

a fire blanket to catch any extraneous slag. Tr. 31. There were multiple exit routes from the tower 

that would not be hindered by the fire hazards identified by Howerton. Tr. 23. Howerton stated 

that unless a miner was standing at the exact location where a fire broke out, his escape would 

not be blocked in any way, and would not require the use of a fire extinguisher. Tr. 23-24. As 

Conrad stated, the purpose of the fire extinguishers is not to enable the miners to stand and fight 

a fire, it is to provide them with a safe means of escape which was already present. Tr. 44. 

 The Secretary also raised concern that an electrical fire at the motor or a grease fire 

would not be extinguishable with water. Conradhs unchallenged testimony was that the motor is 

located above the tower and it is equipped with overload protection which would trip the breaker 

to the motor before a fire would occur. Tr. 34. The only grease used on the tower is in a 3/8 inch 

diameter, 3 inch long hose which was self-contained and would extinguish a fire. Moreover, the 

grease used is not flammable and has a combustion flash point of approximately 450 degrees 

while the equipment operates at a substantially lower temperature of 50 to 60 degrees above 

ambient temperature. Tr. 31-38. 

 Conrad testified that the annual inspection sticker on the fire extinguisher was turned to 

face the back wall and it was locked in place. A miner conducting the monthly inspections or a 

workplace examination would not have had cause to check the annual inspection sticker during 

the course of his duties. Tr. 34. 

 Based upon these factors, I find that the gravity of the violation is extremely low. I also 

find significant mitigating circumstances leading me to the conclusion that the operator did not 

know and could not have known that its contractor, hired for the specific purpose of conducting 

the annual fire inspections, had missed inspecting this one extinguisher out of the 50 or more on 

the property. The condition had existed for only two months and there was no evidence that the 

extinguisher, although not required, was not in proper working order. A Mining discharged the 

contractor as a result of this violation and hired another company. The operator has been diligent 

in its fire prevention efforts. The negligence is very low. 

 Section 110(i) of the Mine Act delegates to the Commission and its judges the authority 

to assess all civil penalties provided in the Act. 30 U.S.C. § 820(i). The Act requires that in 

assessing civil monetary penalties the Commission and its judges shall consider the six statutory 

penalty criteria: (1) the operatorhs 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 operatorhs 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. 

 I have considered each of the six criteria above. The parties did not stipulate to the size of 

the operator, the ability to continue in business or the good faith compliance by the operator. A 

Mining provided testimony regarding the size of its business and I have reviewed the Assessed 

Violation History Report submitted in the Secretaryhs Prehearing Report which was not tendered 

as an exhibit but was not objected to by the Respondent in pretrial proceedings. Absent evidence 

37 FMSHRC Page 672
 

to the contrary from either party, I assume the penalty I impose will not affect the operatorhs 

ability to continue in business and that it demonstrated good faith in abatement of the violation. 

My gravity and negligence findings are stated above. 

 Having considered the six criteria and given that I have decreased the level of negligence 

and gravity of the violation, I find a penalty of $100.00 to be appropriate. 

ORDER

 It is ORDERED that Citation No. 8732840 be MODIFIED to no negligence. It is further 

ORDERED that A Mining Group, LLC, pay the Secretary of Labor the sum of $100.00 within 

30 days of the date of this Decision.2 

/s/ Priscilla M. Rae

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

 

Brooke D. Werner McEckron, Esq., Office of the Solicitor, U.S. Department of Labor, 61 

Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303 

Joshua Conrad, Plant Superintendent, A Mining Group, LLC, 19080 West US Highway 98, 

Lamont, FL 32336 

 2

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

37 FMSHRC Page 673
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

March 26, 2015 

 

DECISION DENYING SETTLEMENT MOTION

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a 

motion to approve settlement.1 The originally assessed amount was $8,325.00, and the proposed 

settlement is for $4,163.00. The Court has reviewed the SecretaryPs motion but has reservations 

about the basis offered for the 50% reduction in the penalty for Citation Nos. 8120822 and 

8120824. 

For No. 8120822, the cited standard, 30 C.F.R. § 77.1606, entitled ULoading and haulage 

equipment; inspection and maintenance,Y provides that U[m]obile loading and haulage equipment 

shall be inspected by a competent person before such equipment is placed in operation [and that] 

[e]quipment defects affecting safety shall be recorded and reported to the mine operator.Y Thus, 

the focus of the standard is upon the inspection of equipment for defects prior to its use. 

The SecretaryPs motion states, in relevant part: 

The Operator asserts that policies were properly in place for any independent 

contractors working on its property regarding the proper examination and 

maintenance of equipment. Additionally, all such independent contractors were 

required to undergo training before working on the minePs property. Given the 

steps taken by the mine operator to ensure that independent contracting 

 1

 In paragraphs 3 and 4 of the Motion to Approve Settlement, the Secretary continues to 

stake out his position that he need not explain the basis for settlement, a position which is 

immaterial and impertinent to the issues legitimately before the Commission. Those paragraphs 

incorrectly cite and interpret the case law and misrepresent the statute, regulations, and 

Congressional intent regarding settlements under the Mine Act. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

REMINGTON, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2012-533 

A.C. No. 46-09230-275179 

Mine: Winchester Mine 

37 FMSHRC Page 674
companies on its property work in a safe manner, questions exist as to whether the 

citation was properly issued as highly likely or moderate negligence. 

It is noted that, except for a minimal change in the rationale, and with absolutely no substantive 

changes to the text of the rationale, the second Citation, No. 8120824, repeats the language 

presented to justify Citation No. 8120822. 

Examining the Secretary of LaborPs offered language for Citation No. 8120822, it may be 

broken down into 2 asserted justifications: 

1. The OperatorPs policies were properly in place for any independent contractors 

working on its property regarding the proper examination and maintenance of 

equipment. 

2. All such independent contractors were required to undergo training before working 

on the minePs property. 

From that, the Secretary asserts that U[g]iven the steps taken by the mine operator to ensure that 

independent contracting companies on its property work in a safe manner, questions exist as to 

whether the citation was properly issued as highly likely or moderate negligence.Y (emphasis 

added). Yet, the SecretaryPs motion does not contend that the gravity or negligence findings 

should be modified. The only change is the 50% reduction in the penalty. 

Therefore, it becomes necessary to analyze exactly what were Uthe steps taken by the 

mine operator to ensure that independent contracting companies on its property work in a safe 

manner.Y This means, of course, steps taken in advance of the alleged violation. However, the 

motion does not identify at all the policies that were in place regarding the proper examination 

and maintenance of equipment, nor are any details provided about the training that Uall such 

independent contractors were required to undergo [] before working on the minePs property.Y 

Set against the detail-free rationale are the allegations of the citation, which relate that an 

accident occurred with a loaded tractor-trailer coal truck in which the driver sustained a lost-time 

injury. That citation asserts that following an accident, it was found that 6 of 10 brakes on a 

tractor-trailer coal truck were not functioning properly. This was especially significant, as the 

truck lost power, began rolling backwards, and turned over and, as noted, with the driver being 

injured. In addition, there was another significant defect beyond the brake defects in that the seat 

belt tether was not connected to the body of the truck cab. As the Inspector stated in the citation, 

those defects should have been observed in the pre-operative check of the vehicle. Adding to the 

seriousness, the citation noted that the haul road where the accident occurred Uis used by all 

persons, including miners and vendors traveling to and leaving the mine site.Y 

The citation concludes with the InspectorPs statement that the operator Ufailed to provide 

adequate oversight to ensure the safety of persons on the mine property.Y In abating the 

violation, the truck was removed from service and additional training was provided to truck 

operators. 

37 FMSHRC Page 675
In the CourtPs view, the SecretaryPs motion fails to identify the steps taken in advance to 

ensure that there are proper examinations of equipment, nor does the motion provide detail about 

the training provided for independent contractors prior to working on the minePs property. The 

claim that Upolicies were properly in placeY for proper examinations is not supported in the 

motion and the facts alleged in the citation refute that claim. Thus, it is disconcerting for the 

Secretary to tout Uthe steps taken by the mine operator to ensure that independent contracting 

companies on its property work in a safe manner.Y 

The second citation alleges a violation of 30 C.F.R. § 77.404, entitled UMachinery and 

equipment; operation and maintenance,Y which requires that U[m]obile and stationary machinery 

and equipment shall be maintained in safe operating condition and machinery or equipment in 

unsafe condition shall be removed from service immediately.Y The citation involves the same 

tractor-trailer truck and accident identified in Citation No. 8120822. The focus of this alleged 

violation is the requirement for maintaining equipment in safe condition and removing such 

equipment when it is not safe. The body of the citation essentially provides additional details 

concerning the statement in Citation No. 8120822, that 6 of the 10 brakes on the tractor trailer 

were not working. The post-accident investigation revealed that the truckPs brake shoes were not 

contacting their drums, and that this was easily determinable. For the trailer itself, Uall four brake 

units [on it] were functionally inoperable,Y and those defects were likewise easy to detect. The 

citation also added to the information provided in the first citation that the Utruck operates in 

congested areas and travels [a] steep haulroad (sic).Y For the abatement, the citation relates that 

U[t]he truck and trailer have been removed from service and additional truck inspection and 

maintenance programs have been implemented.Y (emphasis added). 

The MotionPs assertion that the operator had proper examination and maintenance 

procedures in place is negated by the statements in the citation that show that they were plainly 

ineffective. Policies claimed to be Uproperly . . . in placeY cannot support a 50% reduction in a 

penalty, where those policies, properly in place or not, miss obvious defects. The citation makes 

this point, asserting that the operator failed to provide adequate oversight or programs to ensure 

that contractor equipment is being maintained in safe operating condition. In its rawest form, the 

Motion essentially seeks the large reduction for an examination and maintenance program which 

was demonstrably ineffective. Accordingly, merely repeating the inadequately supported 

justification offered for Citation No. 8120822 does not work for Citation No. 8120824 either. 

Therefore, the rationale for this 50% reduction is also unsupported. It seems obvious that, based 

on the citationPs statement, which was not challenged in the Motion, the equipment was not 

being properly maintained and the defects were, as the citation alleges, easily detectable. Further, 

the Secretary cannot claim as the basis for its penalty reduction, that the training, alleged to have 

been provided for proper examination and maintenance, was properly in place where there was a 

need to implement additional truck inspection and maintenance programs. 

In sum, an inspection program to ensure that defects affecting safety are detected, a 

training program to ensure that those who make such inspections are competent, and related 

training to ensure that unsafe equipment is immediately removed from service cannot be cited as 

the basis for a penalty reduction, let alone a reduction on the order of 50%, where such programs 

utterly fail to detect obvious defects and patently unsafe equipment. Accordingly, the SecretaryPs 

Motion is DENIED. 

37 FMSHRC Page 676
The Secretary is directed to either provide the required information to support the claims 

about the nature of the mine operatorPs policies that were in place and the details of the training 

provided prior to the accident and to then explain how those translate into a justification for a 

50% penalty reduction, or to prepare for hearing. The Secretary is further directed to advise the 

Court of his intentions within two weeks from the issuance of this decision. The Court also 

directs the Secretary to advise it as to whether the contractor, Powers Trucking Company, was 

cited for these alleged violations, and if so, the status of such matters. 

/s/ William B. Moran

William B. Moran 

Administrative Law Judge 

Distribution: 

Anh T. LyJordan, Esq., U. S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, 

Arlington, VA 22209-2247 

Jonathan R. Ellis, Steptoe & Johnson PLLC, Chase Tower, Eighth Floor, PO Box 1588, 

Charleston, WV 25326 

37 FMSHRC Page 677

ADMINISTRATIVE LAW JUDGE ORDERS
37 FMSHRC Page 678
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

March 12, 2015 

 

ORDER GRANTING TEMPORARY REINSTATEMENT

OF CARLTON JOHNSON

and

ORDER APPROVING AGREEMENT

REGARDING ECONOMIC TEMPORARY REINSTATEMENT

FOR CARLTON JOHNSON

Before: Judge Harner 

 Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 

30 U.S.C. ' 801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on March 

10, 2015, filed an Application for Temporary Reinstatement of miner Carlton Johnson 

(PComplainantQ) to his former position as a mechanic with BASF Corporation at its Clover Fork 

No. 1 Mine in Jackson, Mississippi (PRespondent@) pending final hearing and disposition of the 

case. 

 The case was assigned to me on March11, 2015. The Secretary also filed a Settlement 

Agreement on Temporary Reinstatement along with his Application for Temporary 

Reinstatement. For the following reasons, the temporary reinstatement of Carlton Johnson is 

hereby GRANTED. 

 Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners Ato 

play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.@ S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of CARLTON JOHNSON, 

 Complainant 

 v. 

BASF CORPORATION, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2015-201-DM 

Case No. SC-MD 15-01 

22-00415 

Mine: BASFa Jackson, MS 

37 FMSHRC Page 679
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and

Health Act of 1977, at 623 (1978). 

 The Commissioncs regulations control the temporary reinstatement procedures. Once an 

application for temporary reinstatement is served on the person against whom relief is sought, 

that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar 

days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(b). If no hearing is 

requested, the Judge assigned to the matter shall review immediately the Secretarycs application 

and, if based on the contents thereof the Judge determines that the minercs complaint was not 

frivolously brought, s[he] shall issue immediately a written order of temporary reinstatement. Id. 

 In adopting section 105(c) of the Act, Congress indicated that a complaint is not 

frivolously brought if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-

25 (1978). In addition to Congress= Aappears to have merit@ standard, the Commission and the 

courts have also equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot 

insubstantial.@ Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). The plain language of the Act 

states that Pif 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.Q 30 U.S.C. § 815(c)(2). The 

judge must determine whether the complaint of the miner Pis supported by substantial evidence 

and is consistent with applicable law.Q1 Sec=y of Labor on behalf of Peters v. Thunder Basin 

Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). 

 The Declaration of Mark Shearer was filed with the Complainantcs Application for 

Temporary Reinstatement (Exhibit A) and asserts the following: 

1. Mr. Shearer is a special investigator with the Mine Safety and Health Administration 

(PMSHAQ) and was assigned to conduct an investigation into a complaint filed by the 

Complainant. Decl. 1-3. 

2. Respondent is engaged in the operation of a metal/non-metal mine at its Jackson, 

Mississippi, facility and its products enter commerce. Therefore, it is an PoperatorQ 

within the meaning of Section 3(d) of the Act and a PmineQ as defined in Sections 

3(b), 3(h) and 4 of the Act. Decl. 4a and 4c. 

3. The Complainant was employed at the Respondentcs Jackson, Mississippi mine 

(PMineQ) where he was employed as Electrical and Instrumental Technician and then 

as a mechanic. Decl. 4b. 

 1 ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept as 

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

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

37 FMSHRC Page 680
4. The Complainant has asserted that he engaged in protected activity over a five month 

period by complaining to Respondent that a newly hired Electrical and Instrumental 

Technician did not know what he was doing and was engaging in unsafe work 

practices. In addition, the Complainant filed a safety complaint with MSHA, 

requesting an investigation. Decl. 4d, see also Exhibit B. 

5. On October 7, 2014, 2014, the Complainant was discharged. Decl. 4e. 

6. Based on the facts adduced during his investigation, special investigator Shearer 

believes that the discrimination complaint was not frivolously brought. Decl 4d and 

4f. 

 Based upon the affidavit of the special investigator and the asserted facts therein, I find 

that the Secretarycs complaint is not frivolously brought. WHEREFORE, it is hereby 

ORDERED that Carlton Johnson be TEMPORARILY REINSTATED to his former job at his 

former rate of pay, overtime and a benefit pending final order on the complaint or until this 

Order is dissolved. 

1. In lieu of actual reinstatement, the parties have executed a Settlement Agreement 

providing for economic reinstatement. Respondent BASF Corporation (PBASFQ) 

shall economically temporarily reinstate complainant Carlton Johnson (PJohnsonQ) 

rather than physically placing him back to work at the mine. This economic 

temporary reinstatement is effective March 16, 2015. This Agreement shall remain in 

effect until the entry of a final order of the Federal Mine Safety & Health Review 

Commission (Pthe CommissionQ) regarding Johnsoncs underlying discrimination 

complaint (MSHA Case No. SC-MD-15-01) or until this Order approving this 

Agreement is dissolved, whichever shall occur first. 

2. BASF shall pay Johnson at his regular rate of pay of $21.44 per hour for 35 hours per 

week and 10 hours of overtime per week at one and one-half times his regular rate. 

The total gross wages per week starting March 16, 2015, until the Temporary 

Reinstatement terminates shall be $1, 072.00 per week. BASF will provide the first 

check, which will include any back pay due for the period from March 16, 2015, until 

the date of this Agreement, on the next regularly scheduled payroll date. Johnson will 

receive paychecks in accordance with BASFcs regular payroll policy from that point 

until the Temporary Reinstatement order is dissolved. 

3. With respect to this temporary reinstatement pay, Johnson will be treated under the 

same terms and conditions of employment as all other similarly situated (physically 

employed) employees. Johnsoncs benefits shall be restored, including but not limited 

to, health insurance and 401(k) payments. Health insurance premiums shall not be 

deducted for the period of back pay. Johnson will have a health insurance premium 

deducted from his regular pay check in accordance with BASFcs health plan. BASF 

shall be responsible for making all legal deductions and payments required by law for 

state and federal taxes. 

37 FMSHRC Page 681
4. BASF will notify Johnson before shutting down the mine and ceasing to employ any 

personnel at the mine. 

5. All paychecks shall be issued to Johnson and shall be mailed to the following address: 

143 Pine Grove Drive, Florence, Mississippi 39073. 

6. Complainant Johnson does not object to this Agreement. 

WHEREFORE, it is ORDERED that the Settlement Agreement on Temporary 

Reinstatement for Carlton Johnson is APPROVED. 

 /s/ Janet G. Harner 

 Janet G. Harner 

 Administrative Law Judge 

Distribution: 

Richard M. Moyed, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin 

Street, Suite 501, Dallas, TX 75201 

Carlton Johnson, 143 Pine Grove Drive, Florence, Mississippi 39073 

Douglas H. Duerr, Esq., Elarbee, Thompson, Sapp & Wilson LLP, 800 International Tower, 229 

Peachtree Street, N.E., Atlanta, GA 30303 

 

37 FMSHRC Page 682
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004 

March 12, 2015 

ORDER DENYING MOTION TO AMEND COMPLAINT

AND

DISMISSAL ORDER

This case is before me based on a discrimination complaint filed on January 7, 2014, 

pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended, 

30 U.S.C. § 815(c)(3) (2006) (Mine Act). The complaint, filed by Sandra G. McDonald under 

section 105(c)(3), concerns her employment as a security guard by a security services contractor 

at a mine site operated by Frasure Creek Mining, LLC, (Frasure Creek) during the period, on or 

about, May 2011 through September 3, 2013. McDonald seeks to recover appropriate relief, 

including employment reinstatement and back pay under Section 105(c) of the Mine Act, from 

TMK Enterprise Security Services, Inc. (TMK), a business entity that had been incorporated in 

West Virginia.1 

However, the evidence of record reflects that TMKXs corporate status was terminated by 

the state of West Virginia on June 12, 2009. Consequently, McDonald was never employed by 

TMK prior to its termination as a corporate entity. Rather, McDonald was employed by George 

King and Mark Toler, the former principles of TMK, who continued to operate their security 

services business as a non-corporate entity. During a January 22, 2015, telephone conference 

with McDonaldXs counsel, although denying that they had discriminated against McDonald, 

King and Toler represented that they cannot re-employ McDonald due to the cessation of their 

business in fall 2014, and that they are financially incapable of providing the monetary relief 

sought by McDonald. 

 1

 Section 105(c)(1) provides, in pertinent part: 

No person shall discharge or in any manner discriminate against ^ any 

miner ^ because such miner ^ has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator or the operatorXs agent ^ of 

an alleged danger or safety or health violation in a coal or other mine ^ or 

because such miner ^ instituted any proceeding under or related to this Act ^. 

30 U.S.C. § 815(c)(1). 

SANDRA G. MCDONALD, 

 Complainant, 

 v. 

TMK ENTERPRISE SECURITY, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEVA 2014-387-D 

HOPE-CD 2013-10 

Frasure Creek Mining, LLC 

Mine ID 46-07014 5G1 

37 FMSHRC Page 683
In view of the above, on February 2, 2015, McDonaldXs counsel filed a Motion for 

Temporary Stay requesting that the hearing, previously scheduled for February 10, 2015, be 

continued and that this matter be temporarily stayed to allow counsel to determine the proper 

respondents who were responsible for McDonaldXs employment. Upon identification of the 

proper respondents, McDonaldXs counsel represented that a motion to lift the stay would be filed 

with an accompanying motion to amend the pleadings. Consistent with counselXs request, on 

February 3, 2015, I issued a stay order to provide counsel with an opportunity to amend the 

pleading by adding King and Toler as the proper respondents. 

Thereafter, on February 18, 2015, McDonaldXs counsel filed a motion to lift the stay and 

to amend the named respondent responsible for her alleged discrimination. However, rather than 

amending the complaint to include King and Toler, McDonaldXs counsel seeks to add Frasure 

Creek as an entirely new respondent, under a new theory of the case. Specifically, McDonaldXs 

counsel now alleges: 

Frasure Creek was intimately involved in and had direct knowledge of all of the 

hazard complaints at issue in this discrimination case, and had a direct role in 

effectuating an illegal and discriminatory course of conduct, by communicating 

and consummating an adverse employment action against the Complainant in 

retaliation for protected activity. 

Mot. to Lift Temp. Stay and to Amend Compl., at 2 (Feb. 18, 2015). 

Section 105(c)(2) of the Mine Act provides that upon receipt of a complaint of 

discrimination, the Secretary cshall cause such investigation to be made as he deems 

appropriate,d and that c[i]f upon such investigation, the Secretary determines that the provisions 

of this subsection have been violated, he shall immediately file a complaint with the 

Commission. . . . d 30 U.S.C. § 815(c)(2). Section 105(c)(3) of the Mine Act provides that, if the 

Secretary determines that no discriminatory violation has occurred, cthe complainant shall have 

the right, within 30 days of notice of the SecretaryXs determination, to file an action in his own 

behalf before the Commission, charging discrimination or interference in violation of [section 

105(c)(1)].d 30 U.S.C. § 815(c)(3). Thus, an investigation by the Secretary under section 

105(c)(2), and his finding that no discrimination has occurred, are prerequisites for a minerXs 

filing of a complaint on her own behalf under section 105(c)(3). 

In seeking an amendment of McDonaldXs complaint to include Frasure Creek, McDonald 

alleges previously-unraised facts specifically relevant to Frasure Creek that were not investigated 

by the Secretary under section 105(c)(2) of the Mine Act. In Hatfield v. Colquest Energy, Inc., 

13 FMSHRC 544 (Apr. 1991), a miner sought an amendment to his section 105(c)(3) 

discrimination complaint that differed substantially from the complaint the miner initially filed 

37 FMSHRC Page 684
with MSHA under section 105(c)(2), an amendment that constituted a theory of the case that 

MSHA had never previously investigated. The Commission held: 

If the SecretaryXs . . . investigation . . . did not include consideration of the matters 

contained in the amended complaint, the statutory prerequisites for a complaint 

pursuant to § 105(c)(3) have not been met. 

13 FMSHRC at 546; see also Pontiki Coal Corp., 19 FMSHRC 1009, 1018 (Jun. 1997).

 Consistent with Hatfield, as the Secretary has not had the opportunity to investigate 

McDonaldXs complaint against Frasure Creek, McDonaldXs motion to redirect her discrimination 

complaint against the mine operator, rather than her security services former employer, shall be 

denied. In view of the fact that TMK was not McDonaldXs employer, and McDonaldXs counsel 

has elected not to amend the complaint to include King and Toler as respondents, the captioned 

discrimination matter against TMK shall be dismissed. 

ORDER

 Accordingly, in the absence of a relevant investigation under section 105(c)(2), IT IS 

ORDERED that McDonaldXs motion to amend her complaint naming Frasure Creek Mining, 

LLC, as the respondent party IS DENIED.

2 IT IS FURTHER ORDERED that the captioned 

discrimination case against TMK Enterprise Security Services, Inc., IS DISMISSED. This 

dismissal is without prejudice to any discrimination complaint McDonald may file under section 

105(c)(3) against George King and/or Mark Toler, as individuals. 

/s/ Jerold Feldman

Jerold Feldman 

 Administrative Law Judge 

 2

 In the event the Secretary investigates and declines to bring a complaint against Frasure 

Creek Mining on behalf of McDonald under section 105(c)(2), nothing herein shall preclude 

McDonald from filing a complaint on her own behalf against Frasure Creek Mining under 

section 105(c)(3) of the Mine Act. Moreover, nothing herein should be construed as addressing 

the jurisdictional issue of a non-employerXs liability under section 105(c). 

37 FMSHRC Page 685
Distribution: (Regular and Certified Mail) 

Samuel B. Petsonk, Esq., Mountain State Justice, Inc., 1031 Quarrier Street, Suite 200, 

Charleston, WV 25301 

Frasure Creek Mining, LLC, 137 East Main Street, Oak Hill, WV 25901 

Mark Toler, Appalachian Enterprise Security Services, LLC, P.O. Box 88, Delbarton, WV 25670 

George King, 1704 Jackson Avenue, St. Albans, WV 25177 

/acp 

37 FMSHRC Page 686