i 

May 2015 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

05-27-15 PARAMONT COAL COMPANY 

VIRGINIA LLC 

VA 2010-458 Page 981 

COMMISSION ORDERS 

05-04-15 LAFARGE BUILDING MATERIALS, 

INC. 

YORK 2014-84 Page 987 

05-18-15 RIVER VIEW COAL, LLC KENT 2014-674 Page 989 

05-18-15 U.S. SILICA COMPANY LAKE 2014-251-M Page 991

05-18-15 BARNHILL CONTRACTING 

COMPANY 

SE 2014-402-M Page 993 

05-18-15 PETRO CHEMICAL INSULATION, 

INC. 

WEST 2014-169-M Page 995 

05-18-15 U.S. SILVER - IDAHO, INC. WEST 2014-374 Page 997 

05-18-15 MONTANA ROCK & STONE, LLP WEST 2014-904-M Page 999 

05-18-15 EASTERN ASSOCIATED COAL, 

LLC 

WEVA 2014-1950 Page 1001 

05-18-15 JUSTIN HERSHMAN, formerly 

employed by CONSOLIDATION 

COAL COMPANY 

WEVA 2014-1997 Page 1003

05-18-15 DAVID VUKMANIC, formerly 

employed by CONSOLIDATION 

COAL COMPANY 

WEVA 2014-1998 Page 1005

05-18-15 ARJ CONSTRUCTION COMPANY, 

INC. 

YORK 2014-83 Page 1007
ii 

05-20-15 HANSON AGGREGATES, 

SOUTHEAST, LLC 

SE 2014-190-M Page 1009

05-20-15 BUZZI UNICEM USA SE 2014-391-M Page 1011

05-20-15 ARIZONA GENERAL 

ENGINEERING CONTRACTING, 

INC. 

WEST 2014-848-M Page 1013

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-01-15 ALDEN RESOURCES, LLC KENT 2013-960 Page 1015 

05-18-15 A & G COAL CORPORATION VA 2014-11 Page 1046 

05-21-15 WEST RIDGE RESOURCES, 

INCORPORATED 

WEST 2013-232 Page 1061 

05-26-15 SEC. OF LABOR O/B/O CHARLES 

RIORDAN v. KNOX CREEK COAL 

CORPORATION 

VA 2014-343-D Page 1074 

05-29-15 FRANK RODRIGUEZ v. LEHIGH 

SOUTHWEST CEMENT COMPANY 

WEST 2013-301-DM Page 1107 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-04-15 SEC. OF LABOR O/B/O NICHOLAS 

DOVE v. KENTUCKY FUEL CORP. 

KENT 2015-158-D Page 1109 

05-04-15 SEAN MILLER v. SAVAGE 

SERVICES CORP. 

WEST 2014-7-DM Page 1113 

05-04-15 SPARTAN MINING COMPANY, 

LLC 

WEVA 2013-109 Page 1123

05-08-15 SEC. OF LABOR O/B/O FREDRICK 

ABRAMS v. CALIFORNIA ROCK 

WEST 2015-551-DM Page 1126

CRUSHER CORP. 
iii 

05-22-15 DANIEL B. LOWE v. VERIS GOLD 

USA, INC. 

WEST 2014-614-DM Page 1130

05-22-15 POCAHONTAS COAL COMPANY, 

INC. 

WEVA 2014-395-R Page 1135
iv 

Review was denied in the following case during the month of May 2015: 

Matthew Bane v. Denison Mines (USA) Corp., Docket No. WEST 2012-1224-DM (Judge Gill, 

June 20, 2014) 

Review was not granted in any case during the month of May 2015.
COMMISSION DECISIONS
37 FMSHRC Page 980
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

May 27, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. VA 2010-458 

VA 2010-369-R 

 v. VA 2010-370-R 

PARAMONT COAL COMPANY 

 VIRGINIA LLC 

BEFORE: Cohen, Nakamura, and Althen, Commissioners1

DECISION

BY: Cohen, Nakamura and Althen, Commissioners 

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) (“Mine Act”). They involve Citation No. 8166774, which was issued 

to Paramont Coal Company Virginia LLC (“Paramont”) by the Department of Labor’s Mine 

Safety and Health Administration (“MSHA”), for a misaligned conveyor belt at Paramont’s 

Deep Mine No. 35. The citation alleged a “significant and substantial” (“S&S”)2 violation of the 

safety standard in 30 C.F.R. § 75.1731(b), which requires conveyor belts to be properly aligned.3

The Administrative Law Judge found that the Secretary of Labor failed to prove that the 

violation of the cited standard was S&S. 35 FMSHRC 1118, 1158 (Apr. 2013) (ALJ). The Judge 

found that the Secretary failed to establish a confluence of factors which would have resulted in 

the ignition of a belt fire. The Secretary filed a petition for discretionary review of the Judge’s 

determination that the citation was not S&S, which we granted. 

1

 Chairman Mary Lu Jordan and Commissioner Michael G. Young assumed office after 

this case had been considered at a Commission meeting. A new Commissioner possesses legal 

authority to participate in pending cases, but such participation is discretionary. Mid-Continent 

Res., Inc., 16 FMSHRC 1218 (June 1994). In the interest of efficient decision making, Chairman 

Jordan and Commissioner Young have elected not to participate in this matter.

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.” 

3

 30 C.F.R. § 75.1731(b) states that “[c]onveyor belts must be properly aligned to prevent 

the moving belt from rubbing against the structure or components.” 

37 FMSHRC Page 981
For the reasons that follow, we vacate and remand the Judge’s decision that Citation No. 

8166774 was not S&S. 

I.

Factual and Procedural Background 

A. Factual Background 

On April 5, 2010, MSHA inspectors Bobby Hall and Lloyd Robinette arrived at 

Paramont’s Deep Mine No. 35, an underground coal mine in Virginia, to conduct a ventilation 

inspection. During the inspection, the inspectors viewed the area along the No. 3 belt between 

crosscuts 81 and 84. As discussed below, three citations were issued on that day, and all 

concerned the same general area. Citation Nos. 8166774 (at issue here) and 8166775 both 

involved equipment that rubbed against the belt — bottom roller hangers and wooden baffles 

respectively. Citation No. 8166773 involved accumulations of float coal dust in the area.4 The 

main issue in the case is whether the wooden baffles that were the subject of Citation No. 

8166775 should also have been considered as a potential cause of a belt fire when the Judge 

made his S&S determination regarding Citation No. 8166774.

At approximately 11:30 a.m., Inspector Hall issued Citation No. 8166774 for an S&S 

violation of section 75.1731(b). Hall alleged that the No. 3 belt was misaligned, resulting in the 

belt rubbing against 14 bottom roller hangers. He noted that the friction between the belt and the 

hangers resulted in at least two of the hangers being hot to the touch and that “the atmosphere in 

the area had a strong odor from rubbing belt.” Gov’t Ex. P-3. Hall added that “[f]loat dust was 

present in the area.” Id. 

On the same day, Hall issued two related citations concerning the same general area 

between crosscuts 81 and 84 alongside the No. 3 belt. The first was Citation No. 8166773, which 

was also issued at approximately 11:30 a.m. for a violation of 30 C.F.R. § 75.400.5 Hall alleged 

that float coal dust had accumulated along the No. 3 belt on the travelway and offside areas, and 

in the crosscuts. Hall added that “[f]loat coal dust and coal fines had accumulated between the 

two new constructed [baffles, referred to in Citation No. 8166775] along the No. 3 belt conveyor 

near stopping No. 82. No methane was detected.” Gov’t Ex. P-2. 

4 While both parties filed petitions for discretionary review, only the Secretary’s petition, 

seeking review of the Judge’s finding that Citation No. 8166774 was not S&S, was granted. In 

regard to the two related citations, Citation No. 8166773 was litigated before the Judge below 

while Citation No. 8166775 was settled. 35 FMSHRC at 1166; see Docket No. VA 2010-408. 

5

 30 C.F.R. § 75.400 states that “[c]oal dust, including float coal dust deposited on rockdusted 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.” 

37 FMSHRC Page 982
The second related citation was Citation No. 8166775, which was issued at 

approximately 3:00 p.m. for a violation of 30 C.F.R. § 75.1731(c).6

 Hall alleged that the 

misaligned belt was rubbing against two wooden baffles between crosscuts 81 and 82.7 The 

baffles consisted of wooden boards placed on the sides and across the top of the belt as a 

ventilation control. As stated in Citation No. 8166773, Hall alleged that float coal dust had 

accumulated between the baffles. Hall specified that “[t]he conveyor belt was not aligned 

properly and was rubbing the wood material and the atmosphere smelled of an odor of 

smoldering wood.” Gov’t Ex. P-12. 

 

B. The Judge’s Decision 

In regard to whether Citation No. 8166774 was S&S, the Judge concluded that there was 

a violation — the misaligned belt rubbing against two hot hangers — that contributed to a 

discrete safety hazard of a belt ignition fire.8

 35 FMSHRC at 1154-55. However, the Judge found 

that the Secretary failed to carry his burden of proof that the hazard was reasonably likely to 

result in reasonably serious injury. Therefore, the Judge found that the violation was not S&S. Id.

at 1158. 

The Judge focused on the friction between the hangers and the belt, and ignored the 

friction between the wooden baffles and the belt. The Judge stated that “[t]he Secretary’s 

reliance on the wooden baffle materials as . . . contributing to the . . . S&S finding is not well 

taken. The evidence establishes that those materials were removed . . . and the Secretary’s 

counsel confirmed that the baffles were ‘taken down immediately . . . which just left the belt 

rubbing, and they did not feel that itself was an imminent danger.’” Id. at 1155. As to the friction 

between the hangers and the belt, the Judge found “no credible evidence of any confluence of 

factors [which] could have come together to produce any ignition, combustion, fire, or other 

injury producing hazards described by the inspector.”9 Id. at 1158. The Judge also found that the 

 6

 30 C.F.R. § 75.1731(c) states that “[m]aterials shall not be allowed in the belt conveyor 

entry where the material may contribute to a frictional heating hazard.” 

7

 At trial, Paramont disputed the exact location of the wooden baffles on the No. 3 belt at 

the time in question. Tr. 133-34, 403-04. On remand, the Judge may wish to determine the exact 

location of these baffles when determining whether Citation No. 8166774 was S&S. 

8

 Based on his credibility determination, the Judge found that only two of the bottom 

roller hangers were rubbing against the belt at the time of the inspection, with the remaining 12 

bottom roller hangers indicating past rubbing by the belt. 35 FMSHRC at 1157-58. 

9

 The Judge found that the following conditions existed: 

(1) the absence of any methane; (2) the absence of any float coal 

dust in suspension; (3) no exposed electrical wires; (4) no float 

coal dust turning or backed up in any of the belt rollers; (5) a fire 

resistant and retardant belt line; and (6) the absence of any rock 

dust or foot prints on the float coal dust accumulations that would 

indicate the presence of anyone in the area. 

Id. at 1157.

37 FMSHRC Page 983
hangers, at the time Hall observed them, were not sufficiently hot to start a belt ignition or fire 

and that Hall could not specify how hot the hangers must be in order to start a fire. Id. at 1157. 

II.

Disposition 

Under Commission case law, 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. 

(footnote omitted); 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). 

The first Mathies element is satisfied by the Judge’s determination of a violation, a 

finding which has not been appealed. Regarding the second Mathies element, we conclude that 

the Judge correctly determined that the violation contributed to the hazard of a belt ignition fire. 

As to the third Mathies element, the Commission has recognized that ‘“[i]n addressing 

[whether a hazard is reasonably likely to result in an injury] . . . in cases involving violations 

which may contribute to the hazard of . . . explosions or ignitions, the likelihood of an injury 

resulting from the hazard depends on whether a ‘confluence of factors’ exists that could trigger 

an explosion or ignition.”’ McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1992 (Aug. 2014). 

Such factors include any potential ignition sources, the presence of methane, float coal dust 

accumulations, loose coal or other ignitable substance, and the types of equipment operating in 

the area. See Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990); 

Texasgulf, 10 FMSHRC 498, 501-03 (Apr. 1988). 

In this case, the Judge erroneously failed to consider the frictional contact between the 

wooden baffles and the misaligned No. 3 belt as a factor that could contribute to a belt fire. 35 

FMSHRC at 1155. He incorrectly reasoned that the Secretary could not rely on the smoldering 

37 FMSHRC Page 984
baffles as an ignition source (as evidence establishing the third and fourth prongs of the Mathies

test) because the mine foreman had removed them (which he did in order to abate Citation No. 

8166775). 

The Commission has long held that an S&S determination must be made at the time the 

citation is issued “without any assumptions as to abatement” and in the context of “continued 

normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984) 

(emphasis added). Accordingly, in Gatliff Coal Co., 14 FMSHRC 1982, 1985-86 (Dec. 1992), 

the Commission determined that the Judge misapplied the Mathies test by inferring that the 

violative condition would cease. Further, the “operative time frame for determining if a 

reasonable likelihood of injury exists includes both the time that a violative condition existed 

prior to the citation and the time that it would have existed if normal mining operations had 

continued.” Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). 

We decline to assume that the operator would have noticed and removed the smoldering 

baffles in the absence of the inspector’s issuance of Citation No. 8166775. Accordingly, we 

conclude that there is no merit in the Judge’s reliance on the operator’s abatement of that baffles 

violation. The Judge should have considered the wooden baffles which were allegedly 

smoldering and near accumulations of coal dust (including float coal dust) in the confluence of 

factors analysis.10

 

 10 The fact that the smoldering baffles were also the subject of a separate citation, 

Citation No. 8166775, is irrelevant to consideration of the baffles in the S&S analysis of Citation 

No. 8166774. Citation No. 8166775 is not duplicative of Citation No. 8166774 because they 

allege violations of separate standards, involving separate duties. Citation No. 8166775 was 

issued at approximately 3:00 p.m., three-and-a-half hours after the issuance of Citation No. 

8166774. Inspector Hall testified that after issuing Citation Nos. 8166773 and 8166774, he went 

to the face to determine whether air was getting to the face. Tr. 154-55. After returning to the No. 

3 belt between crosscuts 81 and 84, where the belt was misaligned, Inspector Hall observed that 

the belt was rubbing against the wooden baffles, causing friction, smoldering, smoke and an 

odor. Tr. 83-84, 155-57. Inspector Hall had not observed this condition earlier. Tr. 157. The fact 

that the severity of conditions resulting from the misaligned belt had increased over three-and-ahalf hours does not militate against an S&S finding for Citation No. 8166774. Rather, it shows 

the effect of normal mining conditions on the development and worsening of the hazard. 

37 FMSHRC Page 985
On remand, the presiding Judge should consider whether a confluence of factors, 

including the wooden baffles, could have contributed to a fire. The Judge should also consider 

the Secretary’s argument that the two hot hangers would eventually heat to a sufficient 

temperature to contribute as an ignition source.11

III.

Conclusion 

We vacate the Judge’s finding that Citation No. 8166774 was not “significant and 

substantial” and remand the case to the Chief Administrative Law Judge12 for further 

proceedings, including whether the violation was “significant and substantial” and what penalty 

assessment is appropriate.

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

11 The Secretary also asserts that the Judge erred in his S&S finding for Citation No. 

8166774 by improperly conflating the S&S and imminent danger analyses contrary to 

Commission precedent. See Eastern Assoc. Coal Corp., 13 FMSHRC 178, 183 (Feb. 1991) (“the 

conditions created by [a S&S) violation need not necessarily be so impending as to constitute an 

imminent danger”). However, we find that the Judge included the phrase “imminent danger” as 

part of a quotation discussing the abatement of the baffles violation (Citation No. 8166775) and 

did not discuss any of the requirements for an “imminent danger.” 35 FMSHRC at 1155. 

Therefore, we reject the Secretary’s argument, which overlooks the context in which the Judge 

included the phrase “imminent danger.”

12 The Judge who originally decided this case has since retired. 

37 FMSHRC Page 986
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

May 4, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. YORK 2014-84 

A.C. No. 30-00006-338701 

LAFARGE BUILDING MATERIALS, 

 INC. 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 February 17, 2014, the Commission received from

Lafarge Building Materials, Inc. (“Lafarge”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 987
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on December 18, 2013, and 

became a final order of the Commission on January 17, 2014. Lafarge asserts that it failed to 

timely contest the proposed assessment because of vacations, the Christmas and New Year’s 

holidays and extended travel by several key personnel. The operator asserts that it has since put 

in place procedures to streamline the process for handling MSHA penalty assessments. The 

Secretary does not oppose the request to reopen; however he notes that Lafarge mailed the 

contest form to the MSHA Payment Office in St. Louis, MO, which is the incorrect address for 

submitting contest forms. The Secretary urges the operator to take steps to ensure that future 

penalty contests are delivered to the proper address and timely contested within 30 days of 

receipt. 

Having reviewed Lafarge’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 988
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. KENT 2014-674 

v. A.C. No. 15-19374-350794 

RIVER VIEW COAL, LLC 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 28, 2014, the Commission received from River View 

Coal (“River View”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 989
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on May 16, 2014, and became a 

final order of the Commission on June 16, 2014. River View asserts that it sent payment for 

several citations, along with the notice of contest form indicating which citations were to be 

contested. It further asserts that a mailing error caused the Secretary not to receive the notice of 

contest. The Secretary does not oppose the request to reopen. However, he notes that the MSHA 

payment processing office received a check dated June 11, 2014, and that there was nothing 

attached to the payment indicating the citations to which payment should be applied. The 

Secretary urges River View to take all steps necessary to ensure that proposed assessments are 

timely contested in the future. 

Having reviewed River View’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 990
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2014-251-M 

A.C. No. 20-00608-336706 

U.S. SILICA COMPANY 

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners1

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 February 26, 2014, the Commission received from U.S. 

Silica Company (“U.S. Silica”) 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).

1

 Commissioner Althen was recused from this case. Commissioner Cohen has elected not 

to participate in this matter. 

37 FMSHRC Page 991
Records of the Department of Labor’s 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. U.S. Silica asserts that it timely 

contested the proposed assessment, but that, due to a clerical error, it incorrectly combined the 

Notice of Contest with a payment for a portion of the proposed penalties and sent the contest 

form along with the payment to the MSHA Payment Office in St. Louis, MO, instead of the Civil 

Penalty Compliance Office in Arlington, VA. The Secretary does not oppose the request to 

reopen, however he notes that there is no record of the St. Louis office ever receiving the Notice 

of Contest. The Secretary urges U.S. Silica to take steps to ensure that future penalty contests are 

timely filed and sent to the correct location at MSHA’s Civil Penalty Compliance Office at 1100 

Wilson Blvd., Arlington, VA 22209. 

Having reviewed U.S. Silica’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 992
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. SE 2014-402-M 

v. A.C. No. 31-02196-348242 

BARNHILL CONTRACTING COMPANY 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 14, 2014, the Commission received from Barnhill 

Contracting Company (“Barnhill”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 993
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 21, 2014, and became a 

final order of the Commission on May 21, 2014. Barnhill asserts that, although it contested the 

citation, it was unfamiliar with Mine Act’s requirement for operators to also contest MSHA’s 

proposed assessments. As a result, Barnhill neglected to forward the proposed assessment to its 

counsel. Barnhill contends that its mistake was attributable to its inexperience in contesting 

citations, as this was the first citation that it has contested in the last seven years. The Secretary 

does not oppose the request to reopen. However, he urges the operator to take steps to ensure that 

future penalty contests are timely contested within 30 days of receipt. 

Having reviewed Barnhill’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 994
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEST 2014-169-M 

v. A.C. No. 04-00743-333178-V7D 

PETRO CHEMICAL INSULATION, INC. 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 December 23, 2013, 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that on October 1, 2013, Petro received a proposed penalty assessment from 

the Secretary. On October 31, 2013, the proposed assessment was deemed a final order of the 

Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days. 

Petro asserts that it submitted a letter requesting a conference on October 10, 2013, and 

made numerous attempts to follow up with MSHA on the case. Petro offers a UPS delivery 

report for the attempted delivery of the contest form. The Secretary does not oppose the request 

to reopen and notes that the contest was returned undelivered due to the Federal government 

shutdown that occurred from October 1 – 16, 2013. 

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 995
Having reviewed Petro’s request and the Secretary’s 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. Accordingly, the operator’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 996
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEST 2014-374 

v. A.C. No. 10-00082-335433 

U.S. SILVER - IDAHO, INC. 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 February 7, 2014, the Commission received from U.S. 

Silver - Idaho, Inc. (“U.S. Silver”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 997
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on November 15, 2013, and 

became a final order of the Commission on December 16, 2013. U.S. Silver asserts that it timely 

contested the proposed assessment, but that due to a clerical error, it incorrectly combined the 

Notice of Contest with a payment for a portion of the proposed penalties and sent the contest 

form along with the payment to the MSHA Payment Office in St. Louis, MO, instead of the Civil 

Penalty Compliance Office in Arlington, VA. The Secretary does not oppose the request to 

reopen, however he urges U.S. Silver to take steps to ensure that future penalty contests are 

timely filed and sent to the correct location at MSHA’s Civil Penalty Compliance Office at 1100 

Wilson Blvd., Arlington, VA 22209. 

Having reviewed U.S. Silver’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 998
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEST 2014-904-M 

v. A.C. No. 24-02604-349861 

MONTANA ROCK & STONE, LLP 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 31, 2014, the Commission received from Montana 

Rock & Stone (“Montana Rock”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 999
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on May 14, 2014, and became a 

final order of the Commission on June 13, 2014. Montana Rock asserts that it only received the 

contest form containing the citation numbers and their proposed penalties from MSHA, without 

receiving many of the citations themselves. Without being able to review many of the actual 

citations, Montana Rock argues that it had no basis upon which to decide which citations to 

contest. The operator offers a letter that it sent to MSHA on May 21, 2014, requesting the 

Secretary to send them the remaining citations. The Secretary does not oppose the request to 

reopen. However, he urges the operator to take steps to ensure that future penalty contests are 

timely contested within 30 days of receipt. 

Having reviewed Montana Rock’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1000
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2014-1950 

v. A.C. No. 46-09152-348595 

EASTERN ASSOCIATED COAL, LLC 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 28, 2014, the Commission received from Eastern 

Associated Coal (“Eastern Associated”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1001
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on May 3, 2014, and became a 

final order of the Commission on June 2, 2014. Eastern Associated asserts that its failure to 

contest the proposed assessment was due to a personnel change at the office. The mine’s safety 

manager, who reviews the mine’s citations in order to determine which ones should be contested, 

was out on medical leave and a new safety manager was put in place in April 2014 to assume his 

responsibilities. According to the operator, the proposed assessment at issue was delivered 

during the transition. The Secretary does not oppose the request to reopen. However, he urges 

Eastern Associated to take all steps necessary to ensure that proposed assessments are timely 

contested in the future. 

Having reviewed Eastern Associated’s request and the Secretary’s 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 Commission’s Procedural Rules, 

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

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

/s/ Margaret A. Miller 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2014-1997 

v. A.C. No. 46-01433-336289 A 

JUSTIN HERSHMAN, 

 formerly employed by 

 CONSOLIDATION COAL 

 COMPANY 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 August 4, 2014, the Commission received from Justin 

Hershman (“Hershman”) a motion seeking to reopen a penalty assessment under section 110(c) 

of the Mine Act, 30 U.S.C. § 820(c), that had appeared to become a final order of the 

Commission. 

Under the Commission’s Procedural Rules, an individual charged under section 110(c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 29 C.F.R. § 2700.27. 

Hershman asserts that it never received the proposed penalty assessment because the 

Secretary mailed it to the wrong address. The Secretary confirms this, and states that once 

MSHA re-mailed the proposed assessment to the correct address, it was timely contested by 

Hershman. 

Having reviewed Hershman’s request and the Secretary’s response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because the 

operator never received the proposed assessment. This obviates any need to invoke Rule 60(b) of 

the Federal Rules of Civil Procedure in order to consider reopening a final order.

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1003
Accordingly, the operator’s 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 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1004
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2014-1998 

v. A.C. No. 46-01433-336288 A 

DAVID VUKMANIC, formerly

 employed by CONSOLIDATION 

 COAL COMPANY 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 August 4, 2014, the Commission received from David 

Vukmanic (“Vukmanic”) a motion seeking to reopen a penalty assessment under section 110(c) 

of the Mine Act, 30 U.S.C. § 820(c), that had appeared to become a final order of the 

Commission. 

Under the Commission’s Procedural Rules, an individual charged under section 110(c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 29 C.F.R. § 2700.27. 

 Vukmanic asserts that it never received the proposed penalty assessment because the 

Secretary mailed it to the wrong address. The Secretary confirms this, and states that once 

MSHA re-mailed the proposed assessment to the correct address, it was timely contested by 

Vukmanic. 

Having reviewed Vukmanic’s request and the Secretary’s response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because the 

operator never received the proposed assessment. This obviates any need to invoke Rule 60(b) of 

the Federal Rules of Civil Procedure in order to consider reopening a final order.

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1005
Accordingly, the operator’s 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 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1006
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 18, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. YORK 2014-83 

v. A.C. No. 18-00748-338452 

ARJ CONSTRUCTION COMPANY, INC. 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 February 17, 2014, the Commission received from ARJ 

Construction (“ARJ”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1007
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on December 16, 2013, and 

became a final order of the Commission on January 15, 2014. ARJ asserts that it failed to timely 

contest the proposed assessment because ARJ’s counsel inadvertently entered an incorrect 

deadline date of January 23, 2014, rather than January 15, 2014, into its scheduling system. ARJ 

further asserts that the error did not occur because of inadequate or unreliable office procedures, 

and that the office schedules hundreds of matters every month and has done so for years in a 

reliable manner. The Secretary does not oppose the request to reopen, however he urges the 

operator to take steps to ensure that future penalty contests are timely contested within 30 days of 

receipt. 

Having reviewed ARJ’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1008
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 20, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. SE 2014-190-M 

A.C. No. 31-00079-341111 

HANSON AGGREGATES, 

 SOUTHEAST, LLC 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 February 26, 2014, the Commission received from Hanson 

Aggregates Southeast, LLC. (“Hanson”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1009
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on January 15, 2014, and 

became a final order of the Commission on February 14, 2014. Hanson asserts that it failed to 

timely contest the proposed assessment due to unusual circumstances. Specifically, Hanson 

asserts that it had hired third party engineers to perform evaluations and submit reports regarding 

the citations in question. In addition, the mine had return visits from inspectors to monitor and 

evaluate the operator’s progress in abating the violations. The Secretary does not oppose the 

request to reopen. However, he notes that his decision not to oppose is based solely on the fact 

that Hanson requested reopening 13 days after the assessment became a final order. The 

Secretary urges Hanson to adopt procedures to ensure that future penalty contests are timely 

filed. 

Having reviewed Hanson’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1010
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 20, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. SE 2014-391-M 

v. A.C. No. 40-00838-347215 

BUZZI UNICEM USA 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 3, 2014, the Commission received from Buzzi Unicem 

USA (“Buzzi”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1011
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 11, 2014, and became a 

final order of the Commission on May 12, 2014. Buzzi asserts that it timely contested the 

proposed assessment, but that it mistakenly sent the Notice of Contest along with a payment for a 

portion of the proposed penalties to the MSHA Payment Office in St. Louis, MO, instead of the 

Civil Penalty Compliance Office in Arlington, VA. The Secretary does not oppose the request to 

reopen. However, he urges Buzzi to take steps to ensure that future penalty contests are timely 

filed and sent to the correct location. 

Having reviewed Buzzi’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1012
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

May 20, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEST 2014-848-M 

v. A.C. No. 02-03143-348357 

ARIZONA GENERAL ENGINEERING 

 CONTRACTING, INC. 

BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners1

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 July 8, 2014, the Commission received from Arizona

General Engineering Contracting, Inc. (“A.G.E.”) 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).

1

 Commissioner Cohen has elected not to participate in this matter. 

37 FMSHRC Page 1013
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) demonstrate that the proposed assessment was delivered on April 23, 2014, and 

became a final order of the Commission on May 23, 2014. A.G.E. asserts that its office manager 

misplaced the paperwork and that the operator subsequently noticed that it missed its deadline to 

contest the proposed assessment. The Secretary does not oppose the request to reopen. 

However, he urges A.G.E. to ensure that future penalty assessments are contested in a timely 

manner. 

Having reviewed A.G.E.’s request and the Secretary’s 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 Commission’s Procedural Rules, 29 C.F.R. Part 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 1014
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 

May 1, 2015 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

ALDEN RESOURCES, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2013-960 

A.C. No. 15-17691-325489-02 

Mine: #3 

DECISION AND ORDER

Appearances: Ryan L. Pardue, Esq., Office of the Solicitor, Department of Labor, 

Denver, Colorado for Secretary of Labor 

Billy R. Shelton, Esq., Jones, Walters, Turner, & Shelton, PLLC, 

Lexington, Kentucky for Alden Resources, LLC 

Before: Judge McCarthy 

I. Statement of the Case

These cases are before me upon a petition for assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).1

 The parties 

stipulated to, inter alia, jurisdictional issues, interstate commerce, operator and authorized 

representative status, authenticity of exhibits, and that the proposed penalties will not affect 

Respondent’s ability to remain in business. Tr. I. 8, Jt. Ex. 1. 

1

 Prior to hearing, the parties agreed to settle six of the eleven citations at issue in Docket 

No. KENT 2013-960 and the single citation in Docket No. KENT-2013-959. I left the record 

open for receipt of the partial settlement as Joint Exhibit 2 (Jt. Ex. 2). On September 30, 2014, 

the undersigned issued Decision Approving Partial Settlement, Order to Modify, and Order to 

Pay a total civil penalty of $1,740 for those settled citations. That Decision has now become 

final. Citation Nos. 8378378, 8378379, 8378383, 8378384, and 8407725 in Docket No. KENT 

2013-960 were left for hearing. 

37 FMSHRC Page 1015
An evidentiary hearing was held in London, Kentucky at which witnesses were 

sequestered. The parties presented testimony and documentary evidence and filed post-hearing 

briefs.2 

The primary issues presented are whether the five contested 104(a) citations at issue were 

properly written with appropriate proposed assessments. After careful review of the record, I 

affirm, Citation No. 8378378, as written, and assess a $1,026 civil penalty, as proposed, for the 

significant and substantial (S&S) violation of 30 C.F.R. § 75.310(a)(3) because the automatic fan 

signal on Fan No. 2 was de-energized and not working. I vacate Citation No. 8378379 alleging a 

violation of 30 C.F.R. 75.312(g)(1) because there was no record in the ventilation book that Fan 

No. 2 was examined on May 6 or 7, 2013. I modify amended Citation No. 8378383, alleging 

high negligence for a significant and substantial (S&S) violation of 30 C.F.R. § 75.380(d)(7)(vi) 

due to missing spheres and other components on the primary escapeway lifeline, to reduce the 

number of miners affected from 13 to 10. I assess a civil penalty of $3405, as proposed. I modify 

Citation No. 8378384, alleging that Respondent violated 30 C.F.R. § 75.360(b)(1) because its 

examiners were failing to perform adequate examinations, to reduce the likelihood of injury or 

illness from “highly likely” to “reasonably likely, to reduce the injury or illness that could 

reasonably be expected to occur from “fatal” to “lost workdays or restricted duty,” and to reduce 

the number of miners affected from 13 to 10. I reduce the penalty from the $25,163 proposed 

and assess a civil penalty of $3,406. I affirm Citation No. 8407725, as written, and assess a $425 

civil penalty, as proposed, for the S&S violation of 30 C.F.R. 72.630(b) for failure to maintain 

the dry dust-collection system on the twin-head, roof-bolting machine in permissible and safe 

operating condition. I assess a total civil penalty of $8,262 against Respondent for the five 

litigated citations. 

2

 Joint Exhibits (Jt. Exs.) 1- 6 were received into evidence. Petitioner Exhibits (P. Exs.) 

1, 2, 5, 7-16, were received into evidence, but P. Ex. 15 (MSHA’s Certified Assessed Violation 

History) was received only for the 15 months prior to the citation at issue. Tr. 290-92. 

Respondent’s Exhibits (R. Exs.) 1-3 were received into evidence. 

37 FMSHRC Page 1016
 On the entire record, including my observation of the demeanor of the witnesses,3

 and 

after considering the post-hearing briefs, I make the following: 

II. Findings of Fact

A. Background 

 Respondent operates Mine #3, a deep, underground, bituminous coal mine in Knox 

County, Kentucky. Coal is extracted through room-and-pillar mining below the water drainage 

level from the blue gem seam of coal, which is usually about 24-27 inches in height. Tr. I, 20. 

The pillar entries are no more than 20 feet wide and about 40 inches high. Tr. I , 20-21, 114. 

 The #3 intake entry and primary escapeway is a sloped road that serves as the main 

travelway for miners in and out of the mine. The road is rough, wet, and well-traveled by 

equipment and it extends from the portal to the loading point at crosscut #68, just outby the last 

open crosscut, where the lifeline begins. Tr. I, 109, 112-113, 121-22, 128; P. Ex. 10. The mine 

has several pumps for water control because a little bit of water can be a big problem for the 

small mine. Tr. II, 14. Miners can’t walk and must crawl through the travelways, or use 

battery-powered vehicles. Tr. I, 113-14. 

 There are two ventilation fans. Tr. I, 21-22. Both fans are loud. Tr. I, 58. The No. 1 fan 

ventilates the active section of the mine where the miners are working and has the capacity to 

deliver 93,430 cubic feet per minute of air. Tr. I, 52-53. The No. 2 fan provides a maximum of 

16,500 cubic feet per minute of fresh intake air from the surface to crosscut 32, where it splits off 

from the main intake to travel across the sealed entries, outby, and back out the mine. Tr. I, 

25-26, 54-55. Respondent’s underground mine manager, Fred Shannon, testified that the No. 2 

fan does not assist the No. 1 fan in ventilating the face areas at the mine, and is used to pull air 

across the sealed areas on a separate split of air. Tr. II, 19-20. Although the air from the No. 2 

fan does not sweep across the working face, the pressure between the two fans allows the No. 2 

fan to pull air from the face entry out of the mine. Tr. I, 55-57. Therefore, if the No. 2 fan is 

de-energized and no longer providing return air across the sealed areas, it would allow the No. 1 

fan to pull air up through and across the sealed areas and pull it onto the working sections. Tr. I, 

27. Accordingly, when the No. 2 fan is not functioning, air from the sealed areas is pulled onto 

the working section and mixes with other air going up the entry. Tr. I, 55-56, 70-71. 

 On April 18, 2013, a rock fall at crosscut 25 blocked the #3 intake entry and primary 

escapeway. Tr. II, 12-14; R. Ex. 3, p. 2; P. Ex. 16 (map depicting rock fall). On April 19, 2013, 

Respondent requested a temporary revision to the MSHA-approved ventilation plan to cleanup 

 3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, experience and 

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the 

testimony of witnesses.

37 FMSHRC Page 1017
the rock fall. The extant ventilation plan required Respondent to have the Nos. 1 and 2 

ventilation fans running at all times. Tr. II, 90. Respondent’s proposed revision and action 

plan provided that Fan No. 2 would be temporarily idled during cleanup of the rock fall to allow 

the following: two common intakes on the No. 1 belt mains, relocation of the primary escapeway 

into the adjacent entry from break 26 to break 22, and examination of the entire intake air course 

prior to anyone else entering the area. Once the rock fall was cleaned, the escapeway and 

ventilation was to be returned to normal. On April 19, 2013, MSHA approved the ventilation 

plan revision, as requested. R. Ex. 3. Fan No. 2 was shut down during the cleanup period and 

no coal production occurred. Tr. II 84, 92, 95. 

An automatic fan signal is a mechanical device that monitors ventilation force and 

provides an audible and visual warning signal if a fan slows or stops providing ventilation. Tr. I, 

28-29. When air pressure from a fan is insufficient to keep the fan’s paddle raised, the paddle 

falls and activates a visual and audio signal. Id. The triggered signal activates a buzzer and light 

to alert a responsible person on the surface that the fan has slowed or stopped. Tr. I, 29-30. 

After the No. 2 fan was turned off on April 19, 2013, the disconnect for the fan signal 

was pulled so that the signal would not activate during the stoppage. Tr. II, 27. When 

production resumed on May 7, 2013 and the No. 2 fan was turned back on, no one re-engaged 

the disconnect to allow the automatic fan signal to start working again. Tr. II, 26-28. 

B. Citation Nos. 8378378

On May 7, 2013, inspector Scott Mullis4

 issued Citation 8378378 alleging a Section 

104(a) violation of 30 C.F.R. § 75.310(a)(3) because the automatic fan signal on the No. 2 fan 

was de-energized and not working. P. Ex. 7. Section 75. 310(a)(3) mandates: 

(a) Each mine fan shall be -- . . . (3) Equipped with an automatic 

device that gives a signal at the mine when the fan either slows or 

stops. A responsible person designated by the operator shall 

always be at a surface location at the mine where the signal can be 

seen or heard while anyone is underground. This person shall be 

provided with two-way communication with the working sections 

and work stations where persons are routinely assigned to work for 

the majority of a shift. 

The responsible person at this mine is located in a metal-roofed, office building about 150 feet 

from Fan No. 2's automatic fan signal. Tr. I, 35, 58-59. 

4

 Mullis completed training at the Beckley Mine Academy and became a certified mine 

inspector in 2012. Tr. I, 16, 19, 44. Before that, Mullis worked in underground mines for 17 

years as either a general laborer, face boss, or section boss. Tr. I , 17, 43. Mullis visited Mine #3 

about five or six times before issuing four of the five litigated citations. Tr. I, 19-20. 

37 FMSHRC Page 1018
 At the time the citation issued, 12 men were working underground. Tr. I, 34. Inspector 

Mullis determined that the violation was significant and substantial (S&S) because an injury was 

reasonably likely to occur and result in lost workdays or restricted duty.5 Further, Mullis 

determined that the operator’s negligence was moderate, and 12 persons were affected. The 

Secretary proposed a penalty of $1,026. 

 

 Respondent stipulated that it violated mandatory safety standard 30 C.F.R. § 

75.310(a)(3), but contests the S&S designation and the appropriateness of the $1,026 proposed 

penalty. Tr. 267; R. Br. 8, 10, 11. For the reasons set forth below, I affirm the citation, as 

written, and assess a $1,026 civil penalty. 

 1. S&S, Moderate Negligence, and Civil Penalty Analysis

 The stipulated violation contributed to a discrete safety hazard or measure of danger to 

safety. Without a functional fan signal alerting the responsible person on the surface that Fan 

No. 2 had stopped, it is likely that miners underground would not know that air from Fan No. 2 

had been reduced or stopped, and take timely corrective action to fix the fan or evacuate the 

mine within 15 minutes after fan stoppage. See 30 C.F.R. §75.313. The violation contributes to 

potential ventilation hazards underground, such as low oxygen or contaminated, toxic air emitted 

from the sealed areas ventilated by Fan No. 2. Tr. I, 63. Accordingly, the absence of a functional 

warning signal on Fan No. 2 contributed to a discrete safety hazard or measure of danger to 

safety. 

 Further, substantial evidence in the record establishes a reasonable likelihood that the 

ventilation hazards of low oxygen or contaminated, toxic air contributed to by the 

non-functioning automatic fan signal on Fan No. 2 would result in an injury during normal, 

continued mining operations. It is axiomatic that ventilation and atmospheric conditions in 

underground mining are dynamic, not static, and change quickly. Without a functional fan signal 

alerting the responsible person on the surface that Fan No. 2 had slowed or stopped, the person 

designated by the operator to be on the surface where the signal can be heard or seen would not 

be alerted to the change in ventilation in order to get word to the 12 miners working underground 

 5

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the 

underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a 

measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will 

be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord 

Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 

99, 103 (5th Cir. 1988) (approving Mathies criteria). The Commission has held that “[t]he test 

under the third element is whether there is a reasonable likelihood that the hazard contributed to 

by the violation . . . will cause injury.” Musser Engineering, Inc. and PBS Coals, Inc., 32 

FMSHRC 1257, 1281 (Oct. 2010). 

37 FMSHRC Page 1019
that the fan had slowed or stopped.6

 Those miners would likely be unaware of the dangers posed 

by the changing atmosphere and their potential exposure to low oxygen, or to harmful, toxic 

gases emitted from the sealed areas ventilated by Fan No. 2, which would impact the air quality 

of miners working inby. 

Mullis testified that clean air from the No. 1 fan that was sweeping across the working 

area "could possibly be contaminated, because it would start pulling air back up the entry 

marked in green, up by those seals and pull it across the working face." Tr. I, 63. When asked on 

cross what would it pull, Mullis testified “[i]f you had a leaking seal, it could be methane. It 

could be low air, black damp, numerous different -- it could be explosive gases. It could be toxic 

gases.” Tr. I, 63.7 Mullis further testified on cross that “[t]here was an issue prior to that, their 

production going down, they had an issue with a seal, and it had a water issue and that was one 

of the purposes for this fan being in place. And I’m not sure that it [methane] was 3 percent, but I 

remember seeing something in the old records of the mine.” Tr. I, 65-66. 

The following colloquy on redirect examination of inspector Mullis bolsters my finding 

that the discrete ventilation hazards contributed to by the non-functioning automatic fan signal 

6

 Respondent argues that the sound of the fan going off is louder than the signal itself and 

therefore miners will know when Fan No. 2 slows or stops, even without a functioning automatic 

fan signal. Further, Respondent notes that the Secretary was hard pressed to offer instances 

when mine surface personnel would not be able to hear the fan shutting down, although both 

inspector Mullis and underground mine manager Shannon agreed that in the event of heavy 

rainfall striking the metal roof of the mine office building about 150 feet from the fan, the 

responsible person might not be able to hear the fan shutting down. R. Br. 11. I agree with the 

Secretary that it is highly speculative to assume that underground miners concentrating on their 

particular tasks, would hear or notice changes in the surface fan's functionality because that 

assumption is dependent on a variety of factors such as the miner’s routine, the nature and 

location of the task, other work taking place at the mine, and personal protective or hearing 

equipment worn. P. Br. 13; Tr. I, 58. Further, other circumstances, including a thunderstorm, 

would prevent the designated person on the surface from hearing the fan shutdown without a 

functional automatic fan signal that could be both heard and seen. Id.; Tr. I, 59-60. 

7

 Although miners are required to wear multi-gas detectors to monitor air quality and 

alert them to ventilation hazards (Tr. I, 63-64), oxygen-deficient air and toxic gases can have an 

immediate and serious impact on their safety and health before appropriate precautions and 

corrective actions can take place. Furthermore, the Commission interprets safety standards to 

take into consideration ordinary human carelessness and the vagaries of human conduct, 

including the fact that not all miners wear multi-gas detectors, as required. See Thompson Bros. 

Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984); cf., Great Western Electric, 5 FMSHRC 840, 

842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 (November 1981). 

37 FMSHRC Page 1020
made it reasonably likely that the 12 miners working underground would suffer injury under 

normal continued mining operations. 

Q. Now, Mr. Shelton asked you about personal air-reading devices. 

Would one of those devices mitigate the hazard you were 

concerned about? 

A. They should if they're calibrated and working properly. 

Q. Why was the hazard you were concerned about then reasonably 

likely to result in injury? 

A. Toxic gases more than explosive. The seam that they're working 

is not known to produce that much methane, but the gases 

themselves from the sealed area, the low oxygen levels and toxic, 

make them nauseated. And if there was enough of low oxygen, 

then, you know, it could be worse. 

Q. Now, there was a lot of discussion about which fan has intake 

air towards the face. Does the #2 fan impact the working section at 

all? 

A. It provides additional intake air going up the intake, yes. It 

provides more volume up that entry. 

Q. Just so I understand, why is the #2 fan vital then for the ventilation 

system? 

THE COURT: Well, vital is kind of a leading term. But it's out of 

the bag. Go ahead. 

A. That fan, as its purpose is shown on this ventilation map, was it 

was being used to withdraw the air from those sealed areas, 

keeping it from going onto the working section. 

Q. If the #2 fan was shut down, where would the hazards be 

located that you were worried about? 

A. From -- it would draw air from across all those sealed entries 

shown on that ventilation map and would mix in with the other air 

going up the intake. 

Q. Was the only hazard you were concerned about at the working 

face? 

37 FMSHRC Page 1021
A. No. Anyone inby crosscut #32 where that air was mixed with 

the other air would be exposed. 

Tr. 1, 70-71. 

While Respondent argues that MSHA allowed miners to work underground during the 

rock fall cleanup when Fan No. 2 was shut down, no production was occurring at this time and 

an additional examination requirement was implemented under the revised ventilation plan for 

the entire air course, including the sealed areas, to ensure that ventilation was safe. Tr. 73-74; R. 

Ex. 3, p. 2. Such would not be the case if Fan No. 2 stopped or slowed unexpectedly. Thus, due 

to the discrete ventilation hazards contributed to by the deactivated warning signal on Fan No. 2, 

miners faced a reasonable likelihood of injury. 

Without a functional warning signal, the 12 miners working underground would also face 

delays in leaving the mine within the 15- minute mandate established by MSHA if the fan 

stopped and could not be restarted, thereby heightening their risk of injury from exposure to 

ventilation hazards such as low oxygen, or harmful, noxious and/or toxic gases emitted and 

pulled from the sealed areas ventilated by Fan No. 2 toward the working face. Tr. I, 32-33.8

 

Accordingly, during continuous underground mining operations, I find that it is reasonably likely 

that the hazards of low oxygen or contaminated, toxic air contributed by the non-functioning 

automatic fan signal on Fan No. 2 would result in an injury from miners' exposure to improper 

ventilation. Tr. I, 40. 

Finally, with respect to the fourth Mathies factor, I credit Mullis’ testimony that the 

exposure to improper ventilation would result in a reasonably serious injury. Mullis testified that 

black damp or low oxygen has been known to kill miners, but that lost workdays or restricted 

duty was the most likely injury from exposure to improper ventilation because the miners "would 

become nauseated before they knew what was going on with them and they would become ill 

from oxygen deprivation." Tr. I, 39-40, 70; P. Ex. 7. 

Accordingly, having found that all four elements of the Mathies test are satisfied, the 

undersigned affirms the S&S and gravity designations for Citation No. 8378379. 

On brief, and at the hearing, Respondent did not specifically challenge the moderate 

negligence designation for Citation No. 8378379, although Respondent’s answer generally 

denies the gravity and negligence designations for all citations at issue. 

When assessing penalties, section 110(i) of the Mine Act requires the Commission to 

consider, inter alia, whether the operator was negligent. 30 U.S.C. § 820(i). Each mandatory 

standard carries with it an accompanying duty of care to avoid violations of the standard. If a 

8

 If the fan has stopped, it must be restarted within 15 minutes. Otherwise, all electrically 

powered and mechanized equipment in each working section must be de-energized or shut off 

and all miners must be withdrawn from the mine. See 30 C.F.R. §75.313. 

37 FMSHRC Page 1022
violation of the standard occurs, an operator’s failure to meet the appropriate duty of care can 

lead to a finding of negligence. A.H. Smith Stone Co., 5 FMSHRC 13 (1983). 

 For purposes of assessing a proposed penalty, the Secretary, by regulation, defines 

conduct that constitutes negligence under the Mine Act as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps 

necessary to correct or prevent hazardous conditions or practices. 

The failure to exercise a high standard of care constitutes 

negligence. The negligence criterion assigns penalty points based 

on the degree to which the operator failed to exercise a high 

standard of care. When applying this criterion, MSHA considers 

mitigating circumstances which may include, but are not limited 

to, actions taken by the operator to prevent or correct hazardous 

conditions or practices. This criterion accounts for a maximum of 

50 penalty points, based on conduct evaluated according to Table 

X. 

30 C.F.R. § 100.3(d). Moderate negligence occurs when “[t]he operator knew of should have 

known of the violative condition or practice, but there are mitigating circumstances.” Id. 

 In designating Respondent’s negligence as moderate, Mullis determined that there were 

mitigating circumstances because the signal was in place, but the switch had been installed inline 

with the signal and had been turned off and never turned back on when Fan No. 2 was restarted. 

Tr. I, 41-42. I agree with the Secretary that Respondent should have known that the automatic 

fan signal was off and was not turned back on when Fan 2 was restarted, and that Respondent 

should have had a system in place to ensure that the automatic fan signal was switched on each 

time Fan No. 2 was restarted. P. Br. 15. In these circumstances, I affirm the moderate 

negligence designation. 

 I have evaluated the Secretary's proposed penalty in light of my findings and the 

principles announced in my final Big Ridge decision. Big Ridge Inc., 36 FMSHRC 1677, 

1681-82 (July 19, 2014) (ALJ). I find that the penalty proposed by the Secretary of $1,026 is 

consistent with the statutory criteria set forth in section 110(i) of the Mine Act. 30 U.S.C. 

820(i). Accordingly, I assess a $1,026 civil penalty against Respondent for Citation No. 

8378378. 

37 FMSHRC Page 1023
 C. Citation 8378379

On May 7, 2013, after issuing Citation No. 8378378, Mullis also issued 104(a) Citation 

No. 8378379 during the first shift at 11:10 a.m. Citation No. 8378379 alleged a violation of 30 

C.F.R. 75.312(g)(1) because there was no record in the ventilation record book that Fan No. 2 

was examined on May 6 or 7, 2013. Tr. I, 76, 78; P. Ex. 9. Citation 8378379 further alleged that 

the violation was unlikely to cause a no-lost-workdays injury, that 12 persons were affected, and 

that the violation resulted from Respondent’s high negligence. P. Ex. 9. The Secretary proposed 

a penalty of $460. The citation was terminated after the results of the examination were 

recorded in the ventilation record book on May 7, 2013 at 11:20 a.m., before the end of the first 

shift. Tr. I, 90; P. Ex. 9. 

30 C.F.R § 75.312 provides, in pertinent part: 

Main mine fan examinations and records. 

 (a) To assure electrical and mechanical reliability of main mine 

fans, each main mine fan and its associated components, including 

devices for measuring or recording mine ventilation pressure, shall 

be examined for proper operation by a trained person designated 

by the operator. Examinations of main mine fans shall be made at 

least once each day that the fan operates, unless a fan monitoring 

system is used. No examination is required on any day when no 

one, including certified persons, goes underground, except that an 

examination shall be completed prior to anyone entering the mine. 

. . 

(c) At least every 31 days, the automatic fan signal device for each 

main mine fan shall be tested by stopping the fan. Only persons 

necessary to evaluate the effect of the fan stoppage or restart, or to 

perform maintenance or repair work that cannot otherwise be made 

while the fan is operating, shall be permitted underground. 

Notwithstanding the requirement of §75.311(b)(3), underground 

power may remain energized during this test provided no one, 

including persons identified in §75.311(b)(1), is underground. If 

the fan is not restarted within 15 minutes, underground power shall 

be deenergized and no one shall enter any underground area of the 

mine until the fan is restarted and an examination of the mine is 

conducted as described in §75.360(b) through (e) and the mine has 

been determined to be safe. . . 

(f) Certification. Persons making main mine fan examinations shall 

certify by initials and date at the fan or another location specified 

by the operator that the examinations were made. Each 

certification shall identify the main mine fan examined. . . . 

37 FMSHRC Page 1024
(g) Recordkeeping. By the end of the shift on which the 

examination is made, persons making main mine fan examinations 

shall record all uncorrected defects that may affect the operation of 

the fan that are not corrected by the end of that shift. Records shall 

be maintained in a secure book that is not susceptible to alteration 

or electronically in a computer system so as to be secure and not 

susceptible to alteration. 

When asked whether Fan No. 2 was operating on May 6, 2013, Mullis testified, 

“[e]vidently so” because “they worked the day before.” When asked how he knew that, Mullis 

testified, “They were on the property. They were preparing. Their records showed that they were 

working that day.” Tr. I, 77. Subsequently, on questioning from the undersigned, Mullis 

testified that he just assumed that the men were working underground on May 6, 2013. Tr. I, 

91. 

Mullis also determined that Fan No. 2 was operating on May 6, 2013 because there was 

no daily entry or indication on the manual chart monitoring system on the side of the fan housing 

that Fan No. 2 had been down. Mullis testified that Fan No. 2 would have been running on May 

6, 2013 according to the graph. Tr. I, 81-82. This testimony begs the question of whether a 

daily entry was required because the fan was operating. Neither the Secretary nor Respondent 

produced the graph. As noted, a revision to the ventilation plan allowed for stoppage of Fan No. 

2, but required that "ventilation and primary escapeway will be returned to the current plan 

(requiring Fan 1 and Fan 2 to run) as soon as the rockfall is cleaned." R. Ex. 3; Tr. II. 89-90. On 

redirect, Mullis acknowledged that the fan stoppage plan permitted Fan No. 2 to be stopped on 

May 6, 2013. Tr. I, 106. 

Additionally, Mullis testified that mine examiner, Dave Faulkner, told him that he had 

done an examination for May 6, 2013, but failed to record it. Tr. I, 83-84, 90-91. Faulkner did 

not testify. Mullis testified that if Faulkner did do the examination, he did a “poor one” because 

he did not find the fan signal inadequate. Tr. I, 86. Mullis cited the record-keeping standard in 

75.312(g)(1) and not 75.312(a), i.e., the standard related to Respondent's failure to conduct a 

mine fan examination, because Mullis took Faulkner at his word that an examination had been 

completed, but just not recorded. Tr. I, 86,104-05. 

Mine manager Shannon credibly testified that the Fan No. 2 was not turned back on until 

May 7, 2013, after the rockfall cleanup was completed and the area re-supported on May 6, 

2013. Tr. II, 94-95, 98. Shannon testified that pre-shift examiner Faulkner would not include the 

fact that Fan No. 2 was off in his pre-shift examination. Tr. II, 99. 

Respondent argues that Mullis assumed that Fan No. 2 was in operation on May 6, 2013 

because miners were working underground. R. Br. 12, citing Tr. I, 77. Respondent also argues, 

inter alia, that there was no need for an examination of the Fan No. 2 on May 6, 2013 because it 

was not running that day. R. Br. 12-13, citing Tr. I, 104, Tr. II, 36. Further, Respondent argues 

that there was no violation for the pre-citation failure to record a fan examination on May 7, 

37 FMSHRC Page 1025
2013, because the results of that examination were recorded 10 minutes after the citation was issued at 

11:20 a.m., and therefore prior to the end of the shift under § 75.312(g)(1). R. Br. 13. 

1. Discussion and Analysis

§75.312(a) requires that all ventilation fans and associated component parts, including

devices for measuring or recording mine ventilation pressure (i.e., an automatic fan signal), shall 

be examined for proper operation at least once each day that the fan operates. See Tr. I, 106-07.9 

§75.312(g) requires that “[b]y the end of the shift on which the examination is made, persons

making main mine fan examinations shall record all uncorrected defects that may affect the 

operation of the fan that are not corrected by the end of that shift. . . .” 

The Secretary failed to establish by a preponderance of evidence that Fan No. 2 was 

operating on May 6, 2013 such that a §75.312(a) examination was required or the deenergized 

fan signal needed to be recorded. Although miners were underground that day finishing the roof 

fall cleanup and re-support, the Secretary failed to establish that Fan No. 2 was operating. Mullis 

conceded that if Fan No. 2 was not operating, no examination was required. Tr. I, 104. Shannon 

credibly testified that Fan No. 2 was not turned back on until May 7, 2013, after the rockfall 

cleanup was completed and the area re-supported on May 6, 2013. Tr. 94-95, 98. Since no 

examination was required on May 6, 2013 under §75.312(a), the failure to record the 

non-functional automatic fan signal on Fan No. 2 by the end of the shift on May 6, 2013 was not 

a violation of §75.312(g). In addition, Fan No. 2 was not operating on May 6 so there was not 

yet any recordable event for a non-functioning fan signal. 

An examination of the Fan No. 2 automatic signal was required on May 7, 2013 when 

Fan No. 2 was turned back on and production resumed on the first shift. By the end of that 

shift, the mine examiner was required to record all uncorrected defects that may affect the 

operation of the fan that had not been corrected by the end of that shift. The automatic fan 

signal violation in Citation 8378378 was terminated at 11:00 a.m. when the operator energized 

the automatic fan signal switch and it operated properly. P. Ex. 7. The alleged record-keeping 

violation described in Citation 8378379 was terminated on the first shift on May 7, 2013 at 11:20 

a.m. when the examiner recorded his findings. P. Ex. 9. I find no record-keeping violation 

under §75.312(g) for May 7, 2013 because by the end of the shift on which the examination was 

made, there was no longer any uncorrected defect that affected the operation of Fan No. 2. 

Accordingly, I vacate Citation 8378378. 

9

 I reject Respondent’s argument that 30 C.F.R. § 75.312(c) only requires that the fan 

signal device to be examined every 31 days and not daily as required by 30 C.F.R. § 75.312(a) 

when the fans operate. R. Br. 12, citing Tr. I ,99. Rather, I agree with the Secretary that 30 

C.F.R. § 75.312(c) requires that the fan signal device be tested everyone 31 days, not examined. 

Thus, the daily examination requirement in 30 C.F.R. § 75.312(a) is separate and distinct from 

the testing requirement in 30 C.F.R. § 75.312(c). 

37 FMSHRC Page 1026
D. Citation No. 8378383 

 The body of Citation No. 8378383 focuses on missing spheres on the primary escapeway 

lifeline and tracks the language of § 75.380(d)(7)(vi) rather than § 75.380(d)(7)(vii), as alleged. 

The Secretary did not seek to amend the citation at hearing to reflect an alleged violation of § 

75.380(d)(7)(vi). On post-hearing brief, however, the Secretary belatedly moved for 

conformance of the pleadings to the evidence adduced at trial. P. Br. 20-21. 

 Fed. R. Civ. Proc. 15(b), applicable under Commission Procedural Rule (1)(b), provides 

for conformance of pleadings to the evidence adduced at trial, and permits adjudication of issues 

that were actually litigated by the parties irrespective of pleading defects. Moreover, mere 

delay, regardless of length, does not bar a proposed amendment, absent prejudice. See, e.g., 3 J. 

Moore, Moore's Federal Practice Par. 15.08[4] (2d ed. 1989). 

 The record indicates that Respondent understood the nature of the violation charged, i.e., 

that spheres were missing from the lifeline, and litigated the case on that basis. Tr. I, 279. At 

hearing, Respondent conceded that there was a violation of § 75.380 because of the missing 

spheres and limited its defense to issues concerning the gravity, negligence and S&S 

designations, the 13 miners allegedly affected, and the appropriateness of the $3,405 proposed 

penalty. Tr. I, 118-19; 279. Thereafter, on post-hearing brief, Respondent conceded the S&S 

nature of the litigated violation and only challenged the high negligence designation, the 

allegation that all 13 miners underground were affected, and the appropriateness of the proposed 

penalty. R. Br. 16-18. In these circumstances, I find that Respondent suffered no prejudice 

because it fully understood the gravamen of the violation charged and knowingly litigated the 

citation on that basis. Accordingly, I grant the Secretary’s belated request to amend Citation 

8378383 to reflect an alleged violation of 30 C.F.R. § 75.380(d)(7)(vi). See Faith Coal Co., 19 

FMSHRC 1357, 1361-62 (Aug. 1997). 

 

 On or about May 22, 2013, Mullis issued section 104(a) Citation No. 8378383 alleging a 

violation of 30 C.F.R. 75.380(d)(7)(vii) because the lifeline located in the Mine's #3 Intake 

Entry, which serves as the primary escapeway and main travelway from the portal to the loading 

point at crosscut 68 (just outby the last open crosscut), did not have the required spheres to 

indicate the location where personnel doors were present. P. Ex. 10; Tr. I, 109, 112, 121-22. The 

spheres indicate intersections where personnel doors, about 30-square inches large, are installed 

in adjacent crosscuts. The personnel doors lead from the primary escapeway to a secondary 

escapeway in the adjacent entry about 60-80 feet away. Tr. I, 111, 129, 146. The citation was 

abated when Respondent installed the spheres to indicate the location of all existing personnel 

doors. P. Ex. 10. 

 Mullis testified that as he traveled underground towards the working section in a 

two-person vehicle, he noticed several locations along the main intake and primary escapeway 

where the required spheres were missing from the nearby lifeline, which was required to be 

readily accessible for the length of the entry. Tr. I, 109, 126, 129. The spheres used to identify 

the man doors are the only lifeline components without a branch line. Tr. II, 134. Mullis noticed 

that four spheres were missing from cross-cut 12 to 31, and that all required spheres were 

37 FMSHRC Page 1027
missing between cross-cut 32 and 68. Tr. I, 114. Also, between cross-cut 32 and 68, Mullis 

noticed that there were no lifeline indicators for refuge alternative and SCSR locations, although 

Mullis’ notes make no mention of these missing components. Tr. I, 115, 140-41. Mullis found no 

violations or hazards in the secondary escapeway located in an adjacent entry. Tr. I, 111-12. 

Mullis was told by third-shift foreman, George Saylor, that the continuous miner 

trammed the entry to clean up the roof fall, and because of low clearance, the miner destroyed 

the old lifeline and the replacement lifeline did not have indicators on it. Rather, the indicators 

had to be manually installed. Tr. I, 122. While Mullis could not determine precisely when the 

lifeline was replaced, Mullis testified that foreman Saylor told Mullis that the portion of the 

lifeline from crosscut 32 to 68 was replaced "a couple of days" prior to Mullis' May 22, 2013 

inspection. Tr. I, 179-180. Saylor did not testify, and no Respondent witness established when 

the lifeline was replaced. Although it is unclear precisely how long the lifeline was defective, it 

is apparent that the lifeline was damaged during cleanup of the rockfall, and the defective lifeline 

should have been noted in the pre-shift examination books once the mine resumed production on 

May 7, 2013. In these circumstances, I credit Mullis’ testimony that since the rock fall was 

cleaned up and production resumed on May 7, 2013, at least nine days had been worked without 

any documentation in the pre-shift examination book that the required components were missing 

from the lifeline. Tr. I, 171-72; see also P. Ex. 13 (“The conditions cited in (cit. #8378383) has 

[sic] existed for 9 days, that was when the new lifeline was installed.”).10 

Mine manager Shannon testified that from cross-cut 12 thru 31, which was about 

1150-1200 feet, MSHA required approximately four man doors or one man door every 300 feet. 

Respondent, however, actually had nine man doors in that area. This was so miners would not 

have to travel 300 feet to a man door, since the height in the No. 1 Main was very low. Tr. II, 

43-44. The lifeline had spheres for five of those nine man doors, but not the other four. Tr. II, 

45. 

Between cross-cut 32 and 68, which was about 2160 feet, seven or eight man doors were 

required, but the mine actually had 11 man doors. Tr. II, 47, 53-54. The lifeline did not have 

any spheres for any of those 11 man doors, nor were there any indicators for SCSR caches or 

refuge alternatives. Tr. I, 114-115; P. Ex. 10. Mine manager Shannon testified, however, that in 

locations where spheres were missing, there were two types of signage: a reflector with "man 

door" written vertically on it, and a reflective sign with "man door" written horizontally with a 

directional arrow. Tr. II, 40. Mullis acknowledged that reflective signs identifying the location 

of the man doors were present at the mine, but they were not attached to the lifeline. Tr. I, 

141-42. 

10 Although Mullis’ notes (P. Ex. 11, p. A-1) indicate that this condition has existed for at 

least six shifts, Mullis credibly explained on cross-examination regarding related Citation 

8379384 (inadequate pre-shifts) that his notes for Citation 8379383 were made before he 

examined the pre-shift examination records for Citation 8379384. Tr. I, 171. 

37 FMSHRC Page 1028
 Mullis determined that the violation was S&S because it contributed to a hazard that was 

reasonably likely to cause a lost workday or restricted duty injury, that 13 miners were affected, 

and that the violation resulted from Respondent’s high negligence. The Secretary proposed a 

penalty of $3,405. P. Ex. 10. Mullis designated the violation as reasonably likely to result in a 

serious injury because in the event of a fire or heavy smoke hazard in the small confined area, 

miners would not be able to locate the man doors to travel from the primary escapeway to the 

secondary escapeway. Tr. I, 132-33. 

 Mullis determined that Respondent’s negligence was high because no examiner had 

recognized the hazard during the previous nine shifts. Tr. I, 133-34. On cross examination, 

however, Mullis conceded that the amount of spheres that were missing compared to the amount 

of spheres that were present could have been considered a mitigating factor. Tr. I, 152. On 

further redirect, however, Mullis testified that he still considered the violation to result from 

Respondent’s high negligence because miners needed access to all components of emergency 

equipment, and the citation could have been written as an unwarrantable failure because all of 

Respondent’s examiners missed the defective lifeline components. Tr. I, 153-54. Regarding the 

number of persons affected, Mullis testified on cross examination that some of the 13 persons 

underground might choose to exit the mine in an emergency using the secondary escapeway, 

depending on their location at the time of the emergency. Tr. I, 148. As noted, Respondent 

concedes on brief that the violation was S&S, and only challenges the high negligence 

designation, the determination that 13 miners were affected, and the proposed penalty. R. Br. 

16-18. 

 1. Discussion and Analysis

 I find that the S&S violation resulted from Respondent’s high negligence because 

Respondent knew or should have known of the violation, and there are no mitigating 

circumstances. 30 C.F.R. § 100.3(d). Mullis’ unrebutted testimony establishes that third-shift 

foreman Saylor told Mullis that the continuous miner used to clean up the roof fall destroyed the 

old lifeline and the replacement lifeline did not have the missing spheres or other indicators on it. 

Tr. I, 22. In fact, Respondent concedes that when the lifeline was replaced, several of the spheres 

were not re-attached to the lifeline. R. Br. 17. Mullis’ testimony also established that these 

missing components were not identified or documented in the examination books during at least 

nine shifts prior to the May 22, 2013 issuance of the citation. Tr. I, 130. Any examiner agent or 

foreman entering or exiting the mine needed to use the travelway that had the defective lifeline. 

Tr. I, 133. Because of the primary travelway’s low height and an agent’s close proximity to the 

lifeline while traveling through the mine, foreman and examiners should have discovered the 

missing spheres after production resumed on May 7 and certainly before May 22, 2013. 

 Respondent argues that it raised numerous mitigating circumstances that should reduce 

its negligence to moderate. Specifically, Respondent argues that although the mine had nine 

man doors from cross-cut 12 thru 31, only four were required by law, and spheres were missing 

37 FMSHRC Page 1029
on the lifeline for only four of the nine man doors. R. Br. 17.11 Although Mullis conceded on 

cross examination that the amount of spheres that were missing compared to the amount of 

spheres that were present could be considered a mitigating factor (Tr. I, 152), in the 

circumstances of this case, I find no mitigation. Respondent’s argument ignores the fact that all 

required spheres were missing between cross-cut 32 and 68 for a total of about 2160 feet, and 

this defect was not documented for nine shifts. Tr. I, 114; Tr. II, 53-54. In these circumstances, I 

agree with the Secretary that given the large number of spheres missing in an extensive area of 

the lifeline, partial compliance with the standard in a more limited area of the lifeline should not 

be considered a mitigating factor. P. Br. 26. 

Respondent fails to argue on brief that the reflective signs that identified the location of 

the man doors, but were not attached to the lifeline, are a mitigating factor. But see Tr. I, 141-42, 

Tr. II, 40. I reject any such argument. I agree with the Secretary that visibility is likely to be 

reduced in an emergency situation, particularly in smoky conditions from a fire outby, and the 

spheres are meant to serve as a tactile guide to an alternative escape route when there is reduced 

or no visibility for miners. P. Br. 24. The reflective man door signs were typically hung away 

from the middle of the entry off to the side of the entry next to the crosscut. Tr. I, 142. 

Therefore, miners traveling the lifeline to escape in a low visibility emergency are unlikely to see 

such signs as they feel their way along the lifeline to find a sphere or spheres indicating the 

presence of man doors. 

Respondent also fails to argue on brief that because the spheres have no branch lines to 

the man doors, miners are not likely to leave the security of the lifeline to find a door. But see Tr. 

I, 143-48. Any such argument ignores the fact that spheres are required for a purpose, i.e., to aid 

miners in desperate emergency situations where they have no choice but to leave the lifeline in 

order to escape through a man door to the secondary escapeway. In this regard, the following 

testimony from Mullis is persuasive. 

THE COURT: So how likely is it in your view that a miner who 

left the lifeline in smoke, crawling through the 40 foot height, 

would become confused or disoriented or maybe bump into 

something and stumble and fall trying to get to the man door? 

THE WITNESS: It could happen. They generally are taught that if 

you leave the lifeline for a man door, which the spheres are to 

indicate like if they -- like where the rock fall occurred, and say it 

cut their cable, their cable that bought their power underground, 

and caused a smoke. When they got to that rock fall, holding that 

line and got to that rock fall, they couldn't go any further. They 

11 I note that the number of man doors is typically governed by the MSHA-approved 

ventilation plan and § 75.380(d)(7)(vi) provides that the continuous directional lifeline shall be 

equipped with one sphere securely attached to the lifeline at each intersection where personnel 

doors are installed in adjacent crosscuts. 

37 FMSHRC Page 1030
would not be able to go anywhere. So that's what the spheres are 

for. They would come back to the next sphere and they would 

know that they could find a door to go through. They would turn 

loose of that line because they know what entry they're in. They 

would turn loose of the line and continue over into that crosscut. 

They're taught to feel their way to the bratti[ce], go across the 

bratti[ce] until you feel the door if you can't 

 see it, go through it. 

Tr. I ,147-48. Consequently, even without a branch line, spheres serve a vital and required 

purpose by signaling an alternative means of escape in an emergency through a man door into an 

adjacent escapeway when the lifeline in the primary escapeway is blocked outby. 

 In sum, I find no mitigating circumstance that would reduce Respondent’s negligence 

from high to moderate. The violation remained undocumented for at least nine shifts and 

Respondent knew or should have known about it and failed to explain why foreman and 

examiners traveling the primary escapeway on a daily basis ignored the obviously defective 

lifeline for an extended period of time. 

 With regard to the number of miners affected by the violation, the Secretary argues that 

13 miners worked on the section, and any emergency outby the section would require the entire 

crew to escape. P. Br. 14, citing Tr. I, 133. Both Mullis and Shannon testified, however, that 

some of the 13 miners underground might choose to exit the mine in an emergency using the 

secondary escapeway, depending on their location at the time of the emergency. Tr. I, 148; Tr. II, 

50. The secondary escapeway is in the belt entry at the #3 mine. Tr. II, 49-50. Shannon testified 

that at any given time, there are two to four miners on that belt entry shoveling, cleaning or 

pumping water. Shannon opined that in an emergency requiring exit from the mine, those two 

to four miners would come out the belt entry unless something was preventing them from 

traveling that way. Tr. II, 50. Thus, out of the 13 miners underground, anywhere from 9-11 

would likely be affected by the violation. Shannon, however, also conceded on cross 

examination that he would prefer to be in the intake air course rather than the secondary 

escapeway along the belt entry when trying to escape in the event of an emergency. Tr. II, 114. 

In these circumstances, it is reasonable to conclude that 10 miners would potentially be affected 

by the violation, i.e., the maximum number for penalty calculations purposes. See 30 C.F.R. § 

100.3(e), Table XIII. Based on the foregoing, I modify Citation 8378383 to reduce the number of 

miners affected from 13 to 10. 

 I have evaluated the Secretary's proposed penalty in light of the principles announced in 

my final Big Ridge decision. Big Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ). 

I find that the penalty proposed by the Secretary of $3,405 is consistent with the statutory criteria 

set forth in section 110(i) of the Mine Act. 30 U.S.C. 820(i). Accordingly, I assess a $3,405 

civil penalty against Respondent for Citation No. 8378383. 

37 FMSHRC Page 1031
E. Citation No. 8378384 

On May 22, 2013, after issuing Citation No. 8378383 for the defective lifeline, Mullis 

issued 104(a) Citation No. 8378384 alleging that Respondent violated 30 C.F.R. § 75.360(b)(1) 

because its examiners were failing to perform adequate examinations that would identify the 

defective lifeline cited in Citation No. 8378383, a condition that existed for nine days. P. Ex. 

13. Mullis determined that the violation was highly likely to cause a fatal injury, that 13 persons

were affected, and that the violation resulted from Respondent’s high negligence. The Secretary 

proposed a penalty of $25,163. P. Ex. 13. 

30 C.F.R. § 75.360(b)(1) requires that: 

"[t]he person conducting the preshift examination shall examine 

for hazardous conditions and violations of the mandatory health or 

safety standards referenced in paragraph (b)(11) of this section, 

test for methane and oxygen deficiency, and determine if the air is 

moving in its proper direction at the follow locations: 

(1) Roadways, travelways, and track haulageways where persons 

are scheduled, prior to the beginning of the preshift examination, 

to work or travel during the oncoming shift." 

30 C.F.R. § 75.360(b)(1). 

Mullis examined the pre-shift record book for the prior nine days and found no hazardous 

condition associated with the missing spheres on the defective lifeline noted in the pre-shift 

book. Tr. I, 162-163, 171. Although the pre-shift examinations had occurred, Mullis determined 

that they were inadequate because the examiner failed to notice the missing spheres on the 

lifeline. Tr. I, 164. Mullis explained, “They missed these. They missed [these] lifeline 

components. That’s inadequate. And it was very - - you’re only this far away from it . . . . As 

you’re traveling that entry, its right in your face.” Tr. I, 164-65. 

Unlike the underlying defective lifeline Citation No. 8378383, which Mullis issued as 

“reasonably likely” and “lost workdays or restricted duty,” Mullis issued this inadequate 

examination Citation No. 8378384 as "highly likely" and "fatal" because he was concerned that 

if all the examiners failed to recognize something as simple as the missing spheres on the 

lifeline, they could miss other hazards throughout the mine, such as inadequate support or 

ventilation. Tr. I, 166-69. Respondent points out, however, that Mullis only issued three 

citations on May 21 and 22, 2013, suggesting that Respondent was not missing a lot of things on 

its pre-shift examinations. R. Br. 19; Tr. I, 169. Respondent also emphasizes that as the 

pre-shift examiner travels through the mine, he is looking for a lot of things, including pump 

locations and existence of water, rib sloughage, floor conditions and other hazards, which could 

affect miners traveling in and out of the mine. Tr. II, 63-64. 

37 FMSHRC Page 1032
 Mine manager Shannon testified that Dave Faulkner, who had over 30 years of coal mine 

experience, was the outby examiner for the section. Shannon testified that he has traveled with 

Faulkner while Faulkner performed examinations, and that Faulkner is very thorough. Tr. II, 

71-72.12 Faulkner did not testify. 

 

 1. Respondent’s Arguments 

 Respondent argues that Citation 8378384 should be vacated because the pre-shift 

examination conducted on May 22, 2013 was adequate. R. Br. 20-21.13 In an effort to show that 

the alleged violation was not obvious, Respondent relies on Shannon’s testimony that the 

pre-shift examiner doesn't just lay on his back and stare at the lifeline on the roof about four 

inches from his head. Rather, the examiner may drive on his side and look off to the sides of the 

buggy, dodging pumps and other objects on the mine floor, and looking for signs of adverse roof, 

rib, and floor conditions. R. Br. 20; Tr. II, 66-68. 

 Respondent argues that if the pre-shift examiner conducts a thorough examination of the 

working areas, but does not see a potential hazard, a violation for an inadequate pre-shift is 

improper. Respondent emphasizes that even MSHA inspector Fuson, who wrote Citation No. 

8407725 discussed below, testified that if the pre-shift examiner does not see a violation or 

hazard, it can't be reported on the pre-shift and no citation for an inadequate pre-shift should be 

issued. R. Br. 20, citing Tr. I, 261-63. Fuson testified as follows on re-cross examination: 

Q. Well, Mr. Fuson, I'm a little bit confused now. You told me that 

there were hazardous conditions on equipment that you don't have 

to look at or write down on a pre-shift examination. 

A. I didn't mean to say it that way, if that's the way you took it. 

Q. Yeah, that's the way I took it. You tell me where I've made a 

mistake there. 

A. Anytime you see a hazard anywhere, on anything, it has to be reported. 

Q. What if you don't see it? 

 12 Shannon received pre-shift examination training from MSHA’s Hazard, Kentucky field 

office. Although Shannon testified that this training never indicated that a pre-shift examiner 

should be looking for spheres on a lifeline, Shannon admitted that the training did mention that a 

lifeline should extend up to the dumping point of the section. Tr. II, 74-75. 

13 Respondent first argues that the violation did not exist for 9 days because Mullis’ notes 

for Citation No. 8378383 indicate that the spheres had been missing from the lifeline for six 

shifts (two days). R. Br. 20. I have specifically rejected this argument at n.10, supra. 

37 FMSHRC Page 1033
A. If you don't see it, you can't report it. 

Q. Somebody comes in after you and says, hey, I found something but you 

didn't see it, is that an inadequate pre-shift? 

A. No, but if there's multiple and multiple obvious conditions, then it 

would be considered. 

Q. Well, the Judge asked you about a lifeline. What about one component 

on a lifeline, a sphere on a lifeline? 

MR. PARDUE: Your Honor, this is -- well, I’ll withdraw it. 

BY MR. SHELTON: 

Q. What about a missing sphere on a lifeline when you have a sign -- 

A. That's an inspector judgment I mean. 

MR. SHELTON: That's all I have for him, your Honor. 

Tr. I, 261-62. In sum, Respondent argues that the citation should be vacated because Respondent 

did conduct a pre-shift examination, and the lack of several spheres on the lifeline was not so 

obvious as to make the pre-shift examination inadequate. R. Br. 20-21. 

Additionally, Respondent argues that the plain language of 30 C.F.R. 75.360 does not 

cover the hazardous condition cited, i.e., missing spheres on the lifeline, because this is not a 

hazardous condition referenced in paragraph (b)(11), and it is not a test for methane and oxygen 

deficiency, or a determination or whether air is moving in the proper direction at specifically 

identified locations. R. Br. 21. 

Finally, Respondent argues that MSHA does not consistently enforce what hazards need 

to be covered by a pre-shift examination. Respondent relies on testimony from both inspectors 

Mullis and Fuson that some potential hazards need not be checked on a pre-shift examination. R. 

Br. 21. For example, Mullis testified on cross examination in response to a hypothetical that an 

energized cable with a gash and exposed copper on a working section would be a hazardous 

condition, but “I don’t think that [pre-shift examiner is] required to check every inch of cable.” 

Tr. I, 174. Fuson testified that issues with the dust parameters on a bolting machine pose a 

hazard to miners, but dust parameters do not have to be checked on a pre-shift exam, only during 

a pre-operational check of the equipment. Tr. I, 293-94, 317. Respondent concludes that a 

pre-shift examiner must report a noted hazard, but need not be counting spheres on the lifeline as 

he conducts his examination. R. Br. 21 

37 FMSHRC Page 1034
2. Discussion and Analysis

 30 C.F.R. § 75.360(b) requires that pre-shift examinations be conducted to identify 

hazardous conditions at certain locations, including roadways and travelways and other areas 

where persons will work or travel during the oncoming shift. The purpose of the examination 

requirement is to identify and document the hazardous condition in these areas where persons are 

expected to work and travel. The Commission has determined that pre-shift examinations are 

fundamental for assuring a safe work environment for miners working underground . Enlow 

Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997); Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 

1995). “The preshift examination is intended to prevent hazardous conditions from developing.” 

19 FMSHRC at 15. The examiner must look for all conditions that present a hazard. Id. at 14. 

Conducting careful pre-shift examinations are critical because "[m]iners rely upon the preshift 

examiner to find and correct conditions that can be a hazard. When an examiner fails to do so, it 

creates in miners a false sense of working in a safe environment." Big Ridge, Inc., 33 FMSHRC 

689, 713 (Mar. 2011) (ALJ). 

 Respondent argued on pre-trial motion for partial summary decision that it is only 

required to search for the specific hazardous conditions listed in subsection (b)(11) of the 30 

C.F.R. § 75.360(b) because the "and" instead of a comma after "hazardous conditions" means 

that only hazardous conditions related to the standards in (b)(11) need to be identified. Tr. I, 

271-22. I rejected this argument by Order dated May 13, 2014. See Alden Resources, Inc., 36 

FMSHRC 1486 (May 13, 2014) (ALJ) (Order Denying Respondent’s Motion for Summary 

Decision).14 

 Respondent does not renew its argument on post-hearing brief. There is good reason. 

Respondent’s argument is inconsistent with the clear and plain language of the standard, flouts 

its purpose to ensure a safe working environment, and ignores its legislative history. The 

standard plainly requires that "The person conducting the preshift examination shall examine for 

hazardous conditions and violations of the mandatory health or safety standards referenced in 

paragraph (b)(11) of this section, test for methane and oxygen deficiency, and determine if the 

air is moving in its proper direction . . ." As the Secretary points out, Respondent’s argument 

ignores the fact that the commas in the standard separate distinct things that Respondent is 

 14 I reject Respondent’s argument that a separate and distinct standard, 30 C.F.R. § 

75.364(b)(5), requires a weekly examination of escapeways at least every seven days, and, 

therefore, since Respondent was not required to conduct a daily pre-shift examination of the 

escapeway, no violation of 30 C.F.R. § 75.360(b)(1) occurred. The issue here is whether an 

adequate pre-shift examination occurred in the No. 3 intake, which is the primary travelway and 

primary escapeway. The Commission has held that unless the text of the standard itself 

specifies a limitation, strict liability cannot be limited by extra-textual considerations, including 

requirements under other standards. Wake Stone Co., 35 FMSHRC 825 (Apr. 2014). For the 

reasons explained herein, I find a violation of 30 C.F.R. § 75.360(b)(1) because the pre-shift 

examiner failed to identify an obvious hazardous condition, the defective lifeline, during 

numerous pre-shift examinations of the primary travelway in and out of the mine. 

37 FMSHRC Page 1035
required to examine for during a pre-shift examination to comply with the standard. P. Br. 29. 

The clear language of the standard requires Respondent to examine for hazardous conditions and

violations of the mandatory health or safety standards referenced in paragraph (b)(11) of the 

section. The "and" connects hazardous conditions and violations of the mandatory health or 

safety standards referenced in paragraph (b)(11) of the section because both need to be 

examined. The commas indicate that Respondent must also test for methane and oxygen 

deficiency, and determine if the air is moving in the proper direction. 

The legislative history of the standard supports this plain meaning. 30 C.F.R. § 75.360(b) 

was amended on December 31, 2008. Before amendment, the standard only required that "[t]he 

person conducting the preshift examination shall examine for hazardous conditions, test for 

methane and oxygen deficiency, and determine if the air is moving in its proper direction" for 

roadways, travelways and track haulageways where miners are scheduled to work or travel 

during the oncoming shift. Thus, the standard always required pre-shift examiners to examine 

for hazardous conditions in a travelway. The amended standard added additional examination 

responsibilities regarding violations of specific standards in addition to hazardous conditions, 

consistent with Rules to Live By. The amended standard requires operators to conduct more 

thorough pre-shift examinations of underground coal mines to check for violations of the nine 

standards identified in MSHA's Rules to Live By initiatives, in addition to checking for general 

hazardous conditions. See 77 Fed. Reg. 20703-20705 (Apr. 6, 2012). 

I conclude that the amended standard was intended to expand the examination 

requirements beyond hazardous conditions to include certain limited violations. Respondent’s 

argument to the contrary fails to distinguish hazardous conditions from distinct violations of 

specific standards, particularly since not all violations are hazardous conditions. It would 

contravene the underlying safety purpose of the standard to limit the pre-shift examination 

responsibilities to hazardous conditions that are also violations of the Rules to Live By when the 

standard always required examination for hazardous conditions in certain areas such as 

travelways to ensure a safe working environment where miners were scheduled to work or travel. 

In addition, Commission precedent treats hazardous conditions as a separate and distinct 

category of conditions that pre-shift examiners are required to identify. The term "hazard" 

denotes a measure of danger to safety or health." Enlow Fork Mining Co., 19 FMSHRC 5, 14

(1997), citing Cement Div., National Gypsum Co., 3 FMSHRC 822, 827 & n. 7 (April 1981). 

The Commission has described "hazard" as "a possible source of peril, danger, duress or 

difficulty," or "a condition that tends to create or increase the possibility of loss." Id. I find 

persuasive the reasoning of Judge Zielinski that "Section 75.360(b)(1) requires that persons 

conducting required preshift examinations "examine for hazardous conditions" in "[r]oadways, 

travelways and track haulageways where persons are scheduled . . ." The American Coal 

Company, 36 FMSHRC 1311, 1338 (May 2014)(ALJ). 

The defective lifeline was clearly a hazardous condition in a travelway because it 

increased the likelihood that miners could not find their way out of the mine, particularly during 

a smoky or other low-visibility emergency. Tr. I, 143, 147-48. The violation was obvious 

because the replacement lifeline was bare and had no spheres indicating the existence of man 

37 FMSHRC Page 1036
doors or any other lifeline indicators from crosscuts 32 to 68 (about 2160 feet), and Respondent 

knew that the replacement lifeline needed to have indicators manually installed before 

production resumed. Tr. I, 114-115, 122-23; Tr. II, 47, 53-54; P. Ex. 10. Further, I have 

credited Mullis’s testimony that the violation existed throughout daily pre-shift examinations 

over the course of nine days. In these circumstances, and given the lifeline’s vital importance, 

Respondent should have discovered the defective lifeline during its pre-shift examinations of the 

No. 3 intake entry, i.e., the primary travelway in and out of the mine. Accordingly, I find the 

violation. 

 I further find that Respondent’s violation was S&S because reasonably likely to result in 

injuries to the 10 affected miners. Mullis testified that the failure to conduct adequate pre-shift 

examinations to document the defective lifeline resulted in the same discrete safety hazard as the 

underlying violation in Citation 8378383, which Respondent concedes was S&S, miners not 

being able to find their way out of the mine in the event of an emergency. Tr. I, 163. Therefore, 

the second Mathies element is satisfied. 

 Regarding the third and fourth Mathies elements, I remain unconvinced that the 

inadequate pre-shift exam was highly likely to cause serious injury as opposed to reasonably 

likely to result in serious injuries to the affected miners. Mullis increased the gravity for this 

citation based largely on speculation and assumption that was not supported by record evidence. 

See specifically Tr. I, 164-170, 173. In essence, Mullis testified, "if [the examiner’s] missing 

something as big as this ball on this line that has reflectors on it, what else, you know, is he" 

missing. Tr. I, 164. Based on this testimony, the Secretary argues as follows: 

Regarding the third Mathies element, the inadequate pre-shift 

exam was highly likley to cause fatal injuries to miners because, as 

Mullis explains. “[I]f he’s (the examiner) missing something as big 

as this ball on this line that has reflectors on it, what else, you 

know, is he” missing. Tr. at 164. Thus, without proper 

examinations, miners would unknowingly come into contact with 

any number of hazardous conditions. Miners rely on an effective 

pre-shift examination as the initial and most effective tool to make 

sure that their environment is safe. If hazardous conditions are not 

being identified and corrected as miners start their shifts, they are 

being immediately and directly exposed to peril. Once Mullis 

discovered the inadequate pre-shift examination he determined that 

the thirteen miners underground were in greater danger than he 

previously designated related to the defective lifeline because no 

hazards were being identified as "there was no mention of anything 

found in those prior days." Tr. at 167. Mullis testified, "The 

hazard, if they're missing something as simple as this, what else are 

they missing . . ." Tr. at 166. Mullis was concerned with safety 

throughout the mine and, thus, push[ed] up his gravity designation. 

Tr. at 168. While other hazardous conditions were not cited, 

continuing mining operations suggest that if hazardous conditions 

37 FMSHRC Page 1037
as obvious as the conditions cited in Citation 8378383 go 

unnoticed then the same would apply to other, less obvious 

hazardous conditions that are bound to develop. . . . 

P. Br. 32. 

The Secretary’s arguments might be more persuasive had he put on evidence of several 

other hazardous conditions that were not being identified and corrected during pre-shift 

examinations after production resumed. But the Secretary’s proof that other hazardous 

conditions were not being identified during pre-shift examinations after production resumed was 

flimsy and inadequate. Mullis merely opined that the inadequate examinations would cause any 

number of other safety hazards to go undetected and uncorrected. I have found an S&S violation 

of 30 C.F.R. § 75.310(a)(3) because someone forgot to switch the automatic fan signal for the 

No. 2 fan back on when production resumed on May 7, 2013. I have vacated the alleged 

non-S&S violation of 30 C.F.R. § 75.312(g)(1) because there was no record in the ventilation 

record book that Fan No. 2 was examined on May 6 or May 7, 2013. Below, I have affirmed 

Citation No. 8407725 finding an S&S violation of 30 C.F.R. 72.630(b) for failure to maintain the 

dry dust-collection system on the twin-head, roof-bolting machine in permissible and safe 

operating condition. But, as noted, that violation did not have to be recorded during a pre-shift 

exam, only during a pre-operational check of the equipment. Tr. I, 293-94, 317. In these 

circumstances, it was incumbent on the Secretary to rely on more than speculation to establish 

that the inadequate examinations would cause any number of other safety hazards to go 

undetected and uncorrected, and to show more than just the defective lifeline and failure to 

switch on the automatic signal on the No. 2 fan to heighten the gravity for Respondent’s failure 

to do adequate pre-shift examinations under 30 C.F.R. § 75.360(b)(1). Accordingly, I find that 

the failure to conduct adequate pre-shift examinations was S&S, but I reduce the likelihood of 

injury or illness from “highly likely” to “reasonably likely, and reduce the injury or illness that 

could reasonably be expected to occur from “fatal” to “lost workdays or restricted duty.” 

I further find that Respondent's failure to perform an adequate pre-shift examination 

under 30 C.F.R. § 75.360(b)(1) was the result of high negligence because Respondent knew or 

should have known of the violation, and there are no mitigating circumstances. Mullis 

inspected the pre-shift examination book for the nine days prior to issuance of Citation No. 

8378384 and no hazardous conditions were documented in the books, not even for the clearly 

defective lifeline that I have previously found resulted from high negligence. Respondent knew 

or should have known that the replacement lifeline needed manual installation of indicator 

components, which were not installed, and that the defective lifeline hazard, which was located 

in the primary travelway where examiners and foreman travel frequently, should be documented 

in the pre-shift examination book during the installation process. Respondent has proffered no 

mitigating circumstances, and raises none on brief. In these circumstances, I affirm the high 

negligence designation. 

For the reasons set forth with regard to the underlying defective lifeline (Citation 

8378383), it is reasonable to conclude that at least 10 of the 13 underground miners would 

potentially be affected by the failure to conduct an adequate pre-shift examination in the primary 

37 FMSHRC Page 1038
travelway, i.e., the maximum number for penalty calculations purposes. See 30 C.F.R. § 

100.3(e), Table XIII. 

 Based on the foregoing, I modify Citation 8378384 to reduce the likelihood of injury or 

illness from “highly likely” to “reasonably likely, to reduce the injury or illness that could 

reasonably be expected to occur from “fatal” to “lost workdays or restricted duty,” and to reduce 

the number of miners affected from 13 to 10. 

 I have evaluated the Secretary's proposed penalty in light of the principles announced in 

my recent Big Ridge decision. Big Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 19, 2014) 

(ALJ). Applying the statutory criteria set forth in section 110(i) of the Mine Act, and guided by 

the regular assessment criteria set forth in § 100.3 as applied to my findings above, I assess a 

$3,406 civil penalty against Respondent for Citation No. 8378384. 

 F. Citation No. 8407725

 On May 24, 2013, MSHA inspector Wendill Fuson15 issued 104(a) Citation No. 8407725 

alleging a violation of 30 C.F.R. 72.630(b) for failure to maintain the dry dust-collection system 

on its twin-head, roof-bolting machine in permissible and safe operating condition. P. Ex. 1; Tr. 

I, 189.16 MSHA had previously set up a sampling program on this bolter, designated area 907, 

because of excessive respirable dust and quartz. Tr. I, 209-15. Accordingly, the roof bolting 

machine was on a reduced respirable dust standard of 1.0 instead of 2.0. Fuson could not point to 

any violations where the machine had exceeded the reduced standard, although it had a prior 

history of exceeding the prior standard on quartz. Tr. I, 241-42. 

 The dust collection system on the bolter consists of a box, hoses, and a pump motor that 

functions like a huge vacuum cleaner, with the filters and box used to catch dust exiting drill 

 15 Fuson has about 8 years of experience with MSHA as a health specialist. Tr. I, 187. 

Before joining MSHA, Fuson had been employed in the coal mining industry and had operated 

roof bolting machines for 10 to 12 years. Tr. I 182. 

16 30 C.F.R. § 72.630(b) provides: 

(b) Dust collectors. Dust collectors shall be maintained in 

permissible and operating condition. Dust Collectors approved 

under Part 33 -Dust 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. 

30 C.F.R. § 33.2(a) defines permissible: 

(a) Permissible, as applied to a dust collector, means that it 

conforms to the requirements of this part, and that a certificate of 

approval to that effect has been issued. 

37 FMSHRC Page 1039
holes as the bit penetrates the roof. Tr. I, 195. After testing, Fuson determined that the vacuum 

suction for each drill head was less than the minimum pressure requirement of twelve mercury 

inches. P. Ex. 1; Tr. I, 190, 196-199. The left head measured 11 inches of mercury (although 

the citation incorrectly stated 9 inches of mercury), and the right head measured 10 inches of 

mercury. Tr. II, 198. Fuson also determined that the suction hose coupling nipples for both 

drill heads were loose and leaking. One hose was broken, and an attempted repair of dust holes 

had been made with electrical tape. Fuson heard air seeping through its loose nipple. P. Ex. 1; 

Tr. I, 193, 196, 199-200. Further, the dust hoses connecting the drill heads to the dust boxes 

were not approved by MSHA. P. Ex. 1. Finally, Fuson observed drill dust piled on top of one 

of the dust boxes, which was used to seal leaks in the gaskets. Tr. I, 193-94, 196, 215. Although 

Fuson failed to mention the attempted repair of the broken hose or the dust piled on top of one of 

the dust boxes within the body of this citation, I credit his specific recollection that these 

conditions were present. P. Ex. 1; Tr. I, 193, 196. 

Fuson testified that vibration from operation of the machine will place the respirable drill 

dust located on the box into the operator’s breathable air. Tr. I, 215. Fuson subsequently 

testified, "[f]rom industry history of this district, I mean, anytime you've got drill dust in this 

district, there's a percentage of respirable dust present and always a danger if not protected 

against the miner breathing it that they will breathe in this." Tr. I, 252. 

The citation alleged that the violation was reasonably likely to cause a permanently 

disabling injury, that 2 persons were affected, and that the violation resulted from Respondent’s 

moderate negligence. MSHA proposed a penalty of $425 for the alleged S&S violation. P. Ex. 

1. When the citation was terminated by replacing parts on the machine, the vacuum pressure

“drastically increased” over 50 percent. Tr. I, 224. 

The citation was written at 7:10 a.m. P. Ex. 1. Fuson could not recall if any roof bolter 

operators were in the area. Tr. I, 202. The day shift was not present and a pre-operational 

examination of the bolter had not yet been conducted, although the bolter was not locked and 

tagged out. Tr. I, 207-09. The continuous miner had been cited an hour earlier for a dust 

parameter violation, although no coal production had taken place. Tr. I, 204. 

 Fuson determined that the conditions should have been repaired prior to operation of the 

machine and that the machine had already been operated with the cited conditions and was set up 

to operate again. Tr. I, 201, 206; P. Ex 2. He testified, that "[t]he dust parameters -- the dust 

collection system of the machine has to be maintained at all times . . . Anytime there's a 

deficiency in the system, it should be shut down and repaired immediately." Tr. I, 208. Fuson 

also determined that the operator had "already used this machine with this many conditions." P. 

Ex. 2; Tr. I, 197. Fuson could not specifically remember whether he heard or saw the roof 

bolter actually bolting during his inspection, but in contemporaneous notes recorded during his 

inspection, he wrote roof bolter "has been bolting in 4 right, set up to bolt, ATRS is set, booms 

are ready. So the machine was siting with the boom and support ready to drill." P. Ex. 2; Tr. I, 

201, 204-05, 234-35. As noted, the bolter was not locked or tagged out. Tr. I, 209. 

37 FMSHRC Page 1040
Fuson testified unconvincingly, "I wouldn't have wrote has been bolting down if I hadn't 

heard it or seen it." Tr. I, 201, 204-05. On cross examination, Fuson acknowledged that he did 

not have any independent recollection that the roof bolter had been operating that morning. He 

also acknowledged that his notes could reflect the fact that the third shift set the bolting machine 

in the 4 right entry so that the first shift could begin operation when they came underground. Tr. 

I, 228. Fuson did not know whether the third shift had actually conducted any roof bolting the 

evening before the citation was issued. Tr. I, 256. “No sir, we don’t know if it was on third shift 

or first shift, but in my notes I’ve got in there they had been bolting.” Id. 

 I find that Fuson did not see or hear the bolter on May 24 because the day-shift had not 

yet begun work. As Fuson acknowledged, “[t]he day shift hadn’t come in yet when I went 

underground. Tr. I, 206. Rather, based on the following testimony, I find that Fuson reasonably 

inferred, based on his experience, that the conditions observed had developed while the roof 

bolter was being operated previously for at least a shift and had not been fixed, and the machine 

was already set up and about to be used again. 

BY MR. PARDUE: 

Q. For each of the conditions you cited, the vacuum suction, the 

couplings, and the hoses, could you tell how long those conditions had 

existed? 

A. Well, from experience, hoses don't loosen on their own just sitting, so, 

you know, I'm safe -- it's safe to say that they had been bolting in that 

condition or it wouldn't be in that condition. They don't drive or move the 

machine around in the mines unless it's going from one place that needs 

bolted to the other. So without a doubt in my mind, they had been bolting 

with this condition. 

Q. Can you say that about each of the conditions that's listed in the body 

of the citation? 

A. Yes. Especially, you know, the tape, I mean, they know they had a 

busted hose or they wouldn't have taped it up. 

Tr. I, 205-06. Although Fuson could not determine exactly how long the conditions had existed, 

he credibly testified that they were present for at least one shift. 

Q. Based on your experience, how long were the -- the conditions cited, 

how long were they -- did they exist on this equipment? 

A. I couldn't tell you how long. At least a shift, because it takes more than 

a shift for it to get -- the hoses to get that loose. If vacuum pressure drops 

like that, usually if you don't lose all of your vacuum -- them machines 

usually typically goes 15 to 20 mercury inches when you test them, and 

they generally gradually lose their suction. But with leaking hoses, you 

37 FMSHRC Page 1041
know, with loose hoses on both sides, it would be easily determined it 

would be greater than a shift. 

Tr. I, 223. 

Third-shift foreman, Bryan Lewis, testified that pre-operational checks are conducted on 

roof bolting machines, which would include the vacuum suction on each side of the bolter. Tr. 

292-94. Lewis testified that at the time that Fuson wrote the citation, the first-shift miners had 

not yet had time to conduct a pre-operational inspection or start bolting. Tr. I, 295, 302. Lewis 

opined that the bolting machine was in operation during the May 23rd second shift, a production 

shift. Further, Lewis did not recall any mention of any problems with the bolting machine at the 

start of the third shift. Tr. I, 298. He testified that a hole in a hose or the loosening of a clamp can 

occur at any time and cause the bolter to lose suction. Tr. I, 299. Lewis further testified that 

when the bolters are drilling top, they stand outby the drill pipe and dust box where the control 

levers are located, and any material that is on the dust box would be blowing inby. Tr. I, 300-01. 

1. S&S, Moderate Negligence, and Civil Penalty Analysis

I find that Respondent violated 30 C.F.R. § 72.630(b) by failing to maintain the dry dust 

collection system on its twin-head, roof-bolting machine. In fact, Respondent concedes the 

violation on brief (R. Br. 6), but argues that it was not significant and substantial (S&S) because 

not reasonably likely to lead to a permanently disabling injury. R. Br. 5. I find that 

Respondent's violation of 30 C.F.R. § 75.630(b) was S&S. 

The first element of Mathies is satisfied by my finding of the violation 30 C.F.R. § 

75.650(b), a mandatory safety standard. 

 The second Mathies element was satisfied because the cited conditions created a discrete 

safety hazard or measure of danger to safety, inhalation of excessive respirable dust that would 

contribute to the development of black lung disease. 

 The third Mathies element was also satisfied. Respondent argues, inter alia, that at the 

time the citation was written, the first shift miners did not have an opportunity to conduct a 

pre-operational check on the machine and that the machine would have been checked before 

being placed into operation at which time the decreased head suction would have been found and 

repaired prior to placing the machine into service. R. Br. 6; see also Tr. I, 232, 255. I reject this 

argument for two reasons. First, I have credited Fuson’s reasonable inference based on the cited 

conditions that the bolter had already been used with the extant defects for at least a shift and 

thus two miners were exposed to the respirable hazard. Fuson reasonably determined that the 

conditions existed at least for one shift because "it takes more than a shift for it to get -- the 

hoses to get that loose . . . with loose hoses on both sides, it would be easily determined it would 

be greater than a shift." Tr. 223. Second, the Commission specifically rejected such argument in 

Wake Stone Co., 36 FMSHRC 825, 828-29 (Apr. 2014), and reinforced the rule that equipment 

that is not locked and tagged out of operation and parked for repairs must be maintained in 

functional condition. 

37 FMSHRC Page 1042
 Having credited inspector Fuson’s testimony that the conditions observed had developed 

while the roof bolter was being operated previously for at least a shift and had not been fixed, I 

conclude that two roof bolt operators on the twin-head machine were exposed to increased 

respirable dust due to improper dust collection. Tr. I, 218, 222. "Because of the lack of vacuum, 

hose leaking, dust on top of the box. That's about a guarantee these guys drilling in them 

conditions, they're going to be exposed to respirable dust." Tr. I, 218. The bolters operated 

within arm's reach of the drill steel bit on each side of the roof bolter, with controls outby the 

drill bit. Tr. I, 330-32. With regard to exposure, Fuson credibly testified, "You've got 3,000 feet 

of air at the bumper of the machine. The places that's been developed is 30 to 32-foot deep. By 

the time they're up in there, all you're going to have is a swirling motion, so anything - you 

know, you're not going to be ventilating the place. All your air is just swirling around in there . 

. ." Tr. I, 322. Fuson further credibly explained that “[t]he dust control suction collection box is 

to get the respirable dust away from them. If there's a breach in the system, the 3,000 feet of air 

at the bumper of the machine . . . So we depend on the dust collection system itself. And if 

there's any breach in air or dust, it's just going to swirl around in the place for them." Tr. I, 

325-26. Fuson explained that "[a]nything that's spinning in the air is potential breathable 

atmosphere for those miners." Tr. 326. 

 I conclude that the two bolter operators on the prior production shift were exposed to 

increased respirable dust no matter where they were located on the machine. I credit Fuson’s 

testimony that air swirls in the whole cut exposing the operators to respirable dust and silica. Tr. 

I, 218-219, 322, 325-26. I further conclude that bolters’ exposure to respirable dust due to 

improper dust collection was reasonably likely to result in injury. In this regard, vibrations from 

the roof bolter would put fine respirable dust into the operators’ breathable air. Tr. I, 215. The 

dust boxes were located on the booms of the machine about 8-10 feet from the operators, who 

move around the machine. Tr. I, 217. Further, Fuson credibly testified: 

With low vacuum, -- you know, especially with a hose leaking, the 

machine's vacuum is not going to pull that dust out of the steel, and 

you'll have a lot of dust coming back out of the hole right in -- I 

mean, and the hole is within probably a couple feet from their -- 

two to three feet at most from their mouth, from breathing, at this 

height. This is a low seam coal, three to four foot high. So they're 

right there next to the drill head. 

Tr. 218-19. 

 With respect to the fourth Mathies element, I find a reasonable likelihood that the 

violation will contribute to development of an illness of a reasonably serious nature, including 

black lung disease. It is beyond dispute that respirable coal mine dust can cause lung diseases 

such as coal workers pneumoconiosis (CWP), emphysema, silicosis, and bronchitis, collectively 

known as black lung. Black lung can lead to lung impairment, permanent disability, and even 

death. There is no cure. Judge Simonton recently recognized the connection between excessive 

exposure to respirable dust and serious respiratory illness in the roof bolter context when finding 

that “there is a reasonable likelihood that [this] over-exposure to respirable dust will result in 

37 FMSHRC Page 1043
injury as respirable dust has been consistently linked to respiratory illnesses such as black lung 

and silicosis. Additionally, black lung and silicosis far exceed the definition of an injury of a 

reasonably serious nature, as they are irreversible illnesses that result in debilitating respiratory 

complications and even death.” Webster County Coal, 36 FMSHRC 382, 391 (Feb. 2014) 

(ALJ). 

On this record, Fuson credibly testified that the roof and strata contained quartz content 

such that respirable dust exposure would lead to silicosis. Tr. I, 219-20. Fuson lost his father to 

silicosis and persuasively explained that “[o]nce complications of respirable dust do take affect 

(sic) on these miners, there's no cure to it and it is a horrible death." Tr. I, 220. I conclude that 

the unabated exposure of the roof bolters to respirable dust by failing to maintain the dry dust 

collection system on the cited twin-head, roof-bolting machine during continuous normal mining 

operations was reasonably likely to contribute to the development of serious lung disease, 

including a permanently disabling respiratory illness. See White Buck Coal, 30 FMSHRC 535, 

542 (June 2008) (ALJ); Genwal Resources, Inc., 27 FMSHRC 580, 589 (Aug. 2005) (ALJ). 

For the foregoing reasons, I conclude that the Secretary has established that this violation 

meets the four-element Mathies test for S&S violations. Accordingly, the S&S and associated 

gravity designations for Citation No. 8407725 are affirmed. 

I further find that Respondent's failure to maintain the dry dust collection system on the 

roof bolter was the result of moderate negligence. As noted supra, moderate negligence occurs 

when an operator knew or should have known of the violation, but there are mitigating 

circumstances. Based on the numerous defective conditions and their apparent obvious nature, 

Respondent should have known about and corrected the conditions. The machine was not 

locked and tagged out and was set up for the oncoming first shift on May 24. Even Respondent’s 

witness, former section foreman Lewis, confirmed that if a prior shift operates a piece of 

equipment, it has to be checked, and if anything is wrong, it should be fixed or shut down. Tr. I, 

316. Fuson persuasively testified that the machine was run in its defective condition for at least 

one shift sometime prior to his discovery of the cited conditions. Tr. I, 206, 223. Respondent 

provided no mitigating circumstances about why the conditions existed other than to suggest that 

they could have happened at any time and would have been discovered and corrected. In these 

circumstances, I conclude that the moderate negligence designation is appropriate. 

I have evaluated the Secretary's proposed penalty in light of the principles announced in 

my final Big Ridge decision. Big Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ). 

I find that the penalty proposed by the Secretary of $425 is consistent with my findings and the 

statutory criteria set forth in section 110(i) of the Mine Act. 30 U.S.C. 820(i). Accordingly, I 

assess a $425 civil penalty against Respondent for Citation No. 8407725. 

37 FMSHRC Page 1044
V. Order

 Wherefore, it is ORDERED that Citation No. 8378378 be AFFIRMED, as written. 

 It is ORDERED that Citation No. 8378379 be VACATED. 

 It is ORDERED that Citation No. 8378383 be MODIFIED to reduce the number of 

miners affected from 13 to 10. 

 It is ORDERED that Citation No. 8378384 be MODIFIED to reduce the likelihood of 

injury or illness from “highly likely” to “reasonably likely, to reduce the injury or illness that 

could reasonably be expected to occur from “fatal” to “lost workdays or restricted duty,” and to 

reduce the number of miners affected from 13 to 10. 

 It is further ORDERED that Citation No. 8407725 be AFFIRMED, as written. 

 To the extent Respondent has not already done so, within 40 days of the date of this 

decision, Respondent, Alden Resources, LLC, is ORDERED TO PAY a total civil penalty of 

$8,262 for the five litigated citations that were not part of the final settlement referenced in 

footnote 1.17 

/s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

 

Ryan L. Pardue, Esq., Office of the Solicitor, Department of Labor, 1999 Broadway, Suite 800, 

Denver, Colorado 80202 

Billy R. Shelton, Esq., Jones, Walters, Turner, & Shelton, PLLC, 151 Eagle Creek Dr., Suite 

310, Lexington, Kentucky 40509 

 17 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

37 FMSHRC Page 1045
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

May 18, 2015 

DECISION 

Appearances: Jennifer Pao, U.S. Department of Labor, Office of the Solicitor 

 170 S. Independence Mall West, The Curtis Center, Suite 630 E 

 Philadelphia, PA 19106-3306 

 Jim Bowman 

 P.O. Box 99, Midway, WV 25878 

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 A & G Coal Corporation, 

(Respondent), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 

820. Prior to hearing the parties settled seven of the ten citations contained in this docket for a 

total monetary penalty of $2,111.00. After consideration, the court denied the Secretary's motion 

for summary judgment on Citation Nos. 8202260 and 8202261. February 27, 2015 Order. The 

parties presented testimony and documentary evidence on the remaining three citations at a 

March 10, 2015 hearing in Pikeville, Kentucky. 

At hearing, MSHA Inspector Wade Gardner testified for the Secretary. A & G Foremen 

Freddie Hamilton and Chris Bowman testified for the Respondent regarding site conditions at the 

time of the citations. A & G Safety Managers Benny Hensley and Patrick Graham also testified 

for the Respondent regarding previous enforcement protocols relevant to the cited standards. For 

the reasons that follow Citation Nos. 8202260 and 8202261 are affirmed as originally written 

and assessed, and Citation No. 8202263 is vacated. After considering the six statutory penalty 

criteria, I have assessed a total penalty of $4,517.00 for this docket, including the citations settled 

prior to hearing.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

A & G COAL CORPORATION, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2014-11 

A.C. No. 44-04534-332641 

Mine: Prep Plant # 2 

37 FMSHRC Page 1046
II. FINDINGS OF FACT

A. Citation No. 8202260 

MSHA Inspector Wade Gardner issued Citation No. 8202260 for an alleged violation of 

30 CFR §77.410(a)(1) on July 16, 2013. Gardner alleged within the citation that: 

The Ford F250 pickup truck tag # 6H1-1261, with an obstructed 

rear view from a fuel tank and a tool box mounted on the fuel tank, 

was being used to haul parts, fuel oil, and miners. The truck was 

not provide(d) with an automatic warning device (back-up horn) 

which shall give an audible alarm when such equipment is placed 

in reverse. This truck is used on the entire mine and also on the 

refuse site, with miners being exposed to this hazard. 

Jt. Ex. 1, 1. 

Gardner designated Citation No. 8202260 as a moderate negligence violation that was 

reasonably likely to contribute to the occurrence of an injury resulting in lost workdays or 

restricted duty. Gardner also determined that the failure to maintain a back-up alarm on the work 

truck was significant and substantial. The Secretary has proposed a regularly assessed penalty of 

$1,203.00 for Citation No. 8202260. 

1. Testimony

a. The Secretary

MSHA Inspector Wade Gardner testified for the Secretary. Gardner testified that he had 

inspected the Prep Plant No. 2 mine site regularly since the 1980s and described the mine site as 

a large set of raw coal stockpiles, coal processing facilities, belt lines, and refuse area strung out 

over several miles and separated in areas by a public highway. Tr. 32-33, 35. Gardner also 

stated that the mine site had a centralized mine office with a bathhouse and parts storage. Tr. 33-

34. Gardner testified that the site foreman regularly transported workers to different areas of the

mine site in a pickup truck. Tr. 35. 

Gardner testified that shortly after he started his inspection of the Prep Plant No. 2 site, A 

& G Foreman Joe Johnson pulled into the mine office parking lot in an F-250 pickup truck with a 

toolbox on top of the bed mounted fuel tank. Tr. 38-39. Gardner stated that Johnson parked 

head in against the mine office in a manner that required him to back up to leave the parking lot. 

Tr. 41. Gardner additionally stated that employees regularly traveled the parking lot on foot as 

the lot was used as the employee parking lot and employees ate lunch at the mine office 

bathhouse. Tr. 41-42. 

Gardner testified that the fuel tank and toolbox completely blocked the rear window and 

obscured the rear view. Tr. 45. Gardner testified that when he inspected the F-250 pickup truck 

37 FMSHRC Page 1047
more closely, Johnson confirmed that the truck had never been equipped with a backup alarm 

during the several months it had been onsite. Tr. 39, 48. Gardner stated he designated the 

violation as significant and substantial because of the necessity to drive the F-250 in reverse at 

the mine office and his experience investigating injuries, including a fatality, where workers had 

been struck by trucks driving in reverse. Tr. 46. Gardner testified that he based the moderate 

negligence designation upon Johnson's own statement that he knew the F-250 did not have a 

backup alarm. Tr. 47-48. 

b. The Respondent

A & G Hauler Driver Chris Bowman testified that he had observed the F-250 truck at the 

refuse area of the mine and had driven the truck several times. Tr. 180. Bowman stated that the 

fuel tank and toolbox obstructed roughly 60 percent of the rearview window. Tr. 181. Bowman 

confirmed that the F-250 did not have a backup alarm but did have a front horn and strobe and 

back up lights. Bowman explained that the F-250 was primarily used to fuel the dozer and 

hauler truck at the refuse site and always parked parallel to the equipment so it could pull straight 

ahead without backing up. Tr. 182. On cross-examination, Bowman conceded that it was 

necessary to drive the F-250 in reverse to leave the mine office parking lot. Tr. 181. 

A & G Safety Manager Patrick Graham stated the A & G foreman who drove the F-250 

informed him that the fuel tank and toolbox did not block his rear view vision as the truck had 

wide-view side mirrors. Tr. 206. Graham also testified that many employees drove pickup 

trucks with similar obstructions and an accident had never occurred at an A & G mine site due to 

a truck operating in reverse. Tr. 207. 

2. The Cited Standard

30 CFR 77.410(a)(1) mandates:

Mobile equipment such as front-end loaders, forklifts, tractors, 

graders, and trucks, except pickup trucks with an unobstructed rear 

view, shall be equipped with a warning device that (1) Gives an 

audible alarm when the equipment is put in reverse... 

30 CFR 77.410(a)(1). 

3. Analysis

a. The Violation

The Secretary presented direct testimony from Inspector Gardner, largely corroborated by 

hauler driver Chris Bowman that the rear view of the F-250 pickup truck was obstructed by a bed 

mounted fuel tank and large toolbox. Tr. 38-39, 181. Gardner and Bowman both confirmed that 

the F-250 pickup truck did not have a backup alarm installed at the time of the July 16 

inspection. Tr. 48, 181. The Respondent conceded the fact of the violation within their posthearing brief. Resp. Br., 3. Accordingly, I find that the failure to install a backup alarm on a 

37 FMSHRC Page 1048
pickup truck with a significantly obstructed rearview constituted a violation of 30 CFR 

77.410(a)(1). 

b. Significant and Substantial 

A violation is Significant & Substantial (S&S), "if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: 1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard-that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3-4 (Jan. 1984). 

 An S&S designation must be based upon the particular facts surrounding the violation 

and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 

FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). 

 In this case, the Respondent violated a mandatory safety standard, 30 CFR 77.410(a)(1), 

by failing to install an audible back up alarm on a pickup truck with an obscured rear view. This 

violation exposed workers to the hazard of a 14,000 pound truck operating in reverse without an 

audible alarm that would alert workers of the approaching vehicle. Tr. 201. The F-250 truck was 

routinely parked head in at the mine office, and then backed out in an area where workers often 

traveled on foot. Tr. 46, 181. Accordingly, I find that there was a reasonable likelihood that the 

safety hazard created by the missing back up alarm would result in an injury to workers in the 

mine office parking lot. Given the relatively heavy weight of the F-250 truck and the Secretary's 

credible testimony that workers had been fatally injured by trucks operating in reverse, I find that 

the violation created the risk of at least a lost time injury to one worker. For all these reasons, I 

affirm the designation of Citation No. 8202260 as a Significant and Substantial violation. 

c. Negligence 

The Mine Act defines reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 CFR § 100.3: Table X. 

 Inspector Gardner credibly testified that the A & G foreman driving the F-250 pickup at 

the time of the inspection acknowledged that he knew the truck did not have a backup alarm. Tr. 

47-48. However, A & G Safety Manager Graham testified that the foreman did not believe that 

37 FMSHRC Page 1049
his rear view was functionally impaired as the truck's large side view mirrors allowed him to see 

around the fuel tank and toolbox. Tr. 206. Nevertheless, the Respondent has conceded that the 

Secretary's designation of moderate negligence is appropriate for Citation No. 8202260. Resp. 

br., 5. Accordingly, Citation No. 82202260 is affirmed as a moderate negligence violation. 

d. Penalty

It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties, 

the Commission ALJ shall consider the six statutory penalty criteria: 

(1) the operator's history of previous violations, (2) the appropriateness of 

such penalty to the size of the business of the operator charged, (3) 

whether the operator was negligent, (4) the effect on the operator's ability 

to continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

30 U.S.C. 820(I). 

These criteria are generally incorporated by the Secretary within a standardized penalty 

calculation that results in a pre-determined penalty amount based on assigned penalty points. 30 

CFR 100.3: Table 1- Table XIV. The Secretary has proposed a regularly assessed penalty of 

$1,203.00 for Citation No. 8202260 based upon the 30 CFR 100.3 penalty tables. 

The Respondent is a large operator with a relatively high rate of total violations per 

inspection day but no previous violations of 30 CFR 77.410(a)1. The Respondent has conceded 

that it acted with moderate negligence. The Respondent has stipulated that the proposed penalty 

will not affect its ability to continue in business. I have found that the violation was reasonably 

likely to result in at least lost time injuries. The parties have stipulated that the Responded acted 

promptly to replace the missing backup alarm. 

After considering this evidence in light of the six statutory factors, I uphold the 

Secretary's proposed penalty and assess a penalty of $1,203.00. 

B. Citation No. 8202261 

Gardner issued Citation No. 8202261 for an alleged violation of 30 CFR §77.1606(a) on 

July 16, 2013. Gardner alleged within the citation that: 

A pre-operational inspection, was not being conducted on the Ford 

F250 pick-up truck tag # 6H1-126, provided with a fuel tank 

mounted in the truck bed. This truck is being used on all shifts and 

37 FMSHRC Page 1050
no one has been conducting an inspection before the truck was put 

in service with a hazard condition.... 

Jt. Ex. 2, 1. 

 

 Gardner designated Citation No. 8202261 as a moderate negligence violation that was 

reasonably likely to contribute to the occurrence of an injury resulting in lost workdays or 

restricted duty. Gardner also determined that the failure to conduct a pre-operational inspection 

on the work truck was significant and substantial. The Secretary has proposed a regularly 

assessed penalty of $1,203.00 for Citation No. 8202261. 

1. Testimony 

a. The Secretary 

 Inspector Gardner testified that when he requested the pre-op book for the F-250 truck, A 

& G Foreman Johnson stated that they did not have a pre-op log for the truck. Tr. 48. Gardner 

stated that he informed Johnson that A & G needed to perform a pre-operational check on the 

truck due to the fact that the truck hauled miners, fuel, and had a blocked rear window. Tr. 48-

49. Gardner stated that 30 CFR 77.1706(a) regulated loading equipment such as loaders and 

haulage equipment ranging from heavy coal trucks to trucks hauling persons, parts, and fuel. 

Gardner testified that MSHA did not normally apply the standard to vehicles or trucks that were 

only used to transport the driver himself or personal employee vehicles not used by the operator 

onsite. Tr. 51-52. 

 Gardner stated that the failure to conduct a pre-op check on the F-250 specifically 

exposed workers to the hazards of the missing back-up alarm and struck by injuries. Tr. 53. 

Gardner confirmed during cross-examination that, to the best of his knowledge, MSHA had not 

issued any official guidance that mandated pre-operational inspections on pickup trucks. Tr. 85. 

However, Gardner stated that he was aware of inspections in other areas that had performed 

inspection on over a hundred pickup trucks as part of a regular inspection. Tr. 94. 

b. The Respondent

 

 A & G Hauler Driver Chris Bowman testified that he had driven a pick-up truck on the 

mine site for years and had never been instructed by MSHA or the operator to conduct a preoperational check. Tr. 183-84. A & G Safety Manager Patrick Graham also testified that MSHA 

had never directed him to conduct pre-operational checks on pick-up trucks in over 30 years of 

mining experience. Tr. 204-05. Graham additionally stated that the F-250 truck was under the 

weight limit that required DOT marking for bulk haulers. Tr. 208-09. 

 

37 FMSHRC Page 1051
2. The Cited Standard

30 CFR 77.1606(a) mandates:

Mobile loading and haulage equipment shall be inspected by a 

competent person before such equipment is placed in operation. 

Equipment defects affecting safety shall be recorded and reported 

to the mine operator. 

30 CFR 77.1606(a). 

3. Analysis

a. The Violation

The Respondent's witnesses have conceded that the operator did not perform a preoperational inspection on the F-250 pickup truck, and have also conceded that the same F-250 

truck was not provided with an audible back-up alarm as required by 30 CFR 77.410(a)(1). Tr. 

48, 183-84; Resp. Br., 3. Thus, it is clear that the operator did not perform a pre-operational 

check on the F-250 pickup truck and that specific significant hazards were not recorded or 

corrected prior to the July 16th MSHA inspection. However, the Respondent argues that the 

truck did not carry enough fuel, tools, or persons to qualify as haulage equipment covered by 30 

CFR 77.1606(a). Resp. Br. 15-16. The Respondent similarly argues that as MSHA failed to 

previously require inspections on pickup trucks at the Prep Plant mine site or publish specific 

guidance on pickup truck inspection, the Respondent was not provided adequate notice of the 

Secretary's interpretation of the regulation. Resp. Br., 13 citing Ideal Cement Company, 12 

FMSHRC 2409, 2416 (November 1990). 

The Respondent specifically objects to Inspector Gardner's statement at hearing that 

haulage equipment could be "anything hauling anything" as overbroad and absurd. Resp. Br., 

14; Tr. 78. The Respondent asserts that as the truck was neither heavy enough or carrying 

enough fuel to require pre-operational inspections per Commercial Vehicle Safety Alliance 

(CVSA) regulations, MSHA should be barred from enforcing Citation No 8202261 in the 

absence of specific notice to operators regarding pickup truck inspection. Resp. Br., 15-16. 

The Secretary argues that the Commission has previously adopted a broad definition of 

the term "hauling" that includes the transport of men or supplies in a separate standard. Sec'y 

Br., 17-18 citing Cleveland Cliffs Iron Co. Inc., 3 FMSHRC 291, 292-93 (Feb 1981)(applying the 

Dictionary of Mining, Mineral and Related Terms definition of hauling to 30 CFR § 55.9-22). 

The Secretary also notes that a Commission ALJ has applied this same expansive definition of 

haulage equipment to enforce a citation issued for failure to keep the cab of a pickup truck free 

of extraneous materials. Sec'y Br., 18 citing Mach Mining, LLC, 2013 WL 8541001, *7 (Aug. 

2013)(ALJ Tureck)(finding that a pickup truck carrying two miners along with grease tanks and 

maintenance equipment was "haulage equipment"). 

37 FMSHRC Page 1052
After reviewing all evidence presented, I find that a reasonably prudent person familiar 

with the mining industry and the protective purposes of the standard would have recognized that 

a preoperational inspection was necessary for the particular F-250 truck in question. The F-250 

truck was equipped with a fuel tank with a capacity of at least one hundred gallons or 800 

pounds of diesel fuel. Tr. 98. Haul Truck Driver Bowman testified that the F-250 was used to 

fuel the loader and haul truck at the refuse site on a regular basis. As such, the F-250 truck in 

question was relied upon to transport a significant amount of material (diesel fuel) and involved 

in a routine part of the mining process. Thus, I find that the F-250 truck fits the definition of 

haulage equipment previously advanced by the Commission and my fellow ALJs. Cleveland 

Cliffs Iron Co. Inc., 3 FMSHRC 292-93; Mach Mining, LLC, 2013 WL 8541001, *7. 

The Respondent has previously conceded for Citation No. 8202260 that the fuel tank and 

large toolbox mounted on the bed of the truck blocked the rearview of the truck and required the 

installation of a back-up alarm. Resp. Br., 3. Accordingly, a reasonably prudent miner would 

have realized that it was, at a minimum, necessary to inspect the fuel tank and back-up alarm on 

the truck to ensure that the fuel tank was free of hazardous leaks and the back- up alarm 

functioned properly. 

Although MSHA appears to have adopted CVSA standards as guidelines for some 

portions of equipment inspections, the Respondent did not introduce any evidence that MSHA 

had adopted those standards as binding substantive regulations. Indeed, in the absence of a 

formalized adoption of the CVSA standards, this court declines to constrain MSHA to standards 

developed for highway use, given the unique and varying hazards presented by differing mining 

environments. 

Additionally, this court need not pass judgement on Inspector Gardner's statement that 30 

CFR § 77.1606(a) extends to "anything hauling anything" or the regulation's application to 

pickup trucks in general. Tr. 78. The F-250 pick -up truck in question carried significant 

amounts of flammable material, a large toolbox, and hourly miners on a routine basis to locations 

several miles apart. Thus, Inspector Gardner acted appropriately in determining that this 

particular F-250 truck operated as haulage equipment and required a pre-operational inspection. 

For all these reasons, the Secretary has fulfilled their burden in demonstrating that the 

Respondent violated 30 CFR § 77.1606(a). 

 

b. Significant and Substantial 

The failure to conduct a preoperational inspection on the F-250 truck constituted a 

violation of mandatory safety standard 30 CFR § 77.1606(a). This violation contributed to the 

safety hazard of uncorrected equipment malfunctions including, but not limited to, fuel leaks and 

inoperable backup alarms. As the truck was operated routinely around both workers on foot and 

other operating heavy equipment, the hazards of a potential unrepaired fuel leak and missing 

backup alarm were reasonably likely to result in one miner suffering contamination, burn and 

struck by injuries of at least a lost time nature. For all these reasons, I affirm Citation No 

8202261 as an S&S violation. 

37 FMSHRC Page 1053
c. Negligence 

As detailed above, A & G employees Bowman and Graham credibly testified that MSHA 

inspectors had never required pre-operational inspections for pickup trucks or distributed any 

guidance on the subject. Tr. 183-84; Tr. 203-04. I have found above that a reasonably prudent 

person should have determined that a preoperational inspection was needed for the F-250 truck 

on the basis of its large diesel fuel tank and blocked rearview alone. However, I find that the 

lack of previous enforcement at the Prep Plant site, the absence of official guidance on pickup 

truck inspection requirements, and the relatively recent arrival of the F-250 truck onsite represent 

a measure of mitigating circumstances. Therefore, I uphold the moderate negligence level 

assigned to Citation No 8202261. 

d. Penalty 

The Secretary has proposed a regularly assessed penalty of $1,203.00. The Respondent is 

a large operator with a relatively high rate of total violations per inspection day but no previous 

violations of 30 CFR 77.1606(a). I have found that the Respondent acted with moderate 

negligence. The Respondent has stipulated that the proposed penalty will not affect its ability to 

continue in business. I have found that the violation was reasonably likely to result in at least 

lost time injuries. The parties have stipulated that the Respondent promptly conducted a preoperational inspection once instructed to do by Inspector Gardner. 

 After considering this evidence in light of the six statutory factors I uphold the 

Secretary's proposed penalty and assess a penalty amount of $1,203.00. 

C. Citation No. 8202263 

Gardner issued Citation No. 8202263 for an alleged violation of 30 CFR §77.205(a) on 

July 16, 2013. Gardner alleged within the citation that: 

Stumbling hazards were observed in the bed of the Ford welding 

truck # WDT-13 where miners are required to work or travel to 

obtain tools or parts in the form of welding cables, electrical ext. 

cords, strips or metal, sledge hammer, 2 gallon jug, and other loose 

parts. 

Jt. Ex. 3, 1. 

 

 Gardner designated Citation No. 8202263 as a moderate negligence violation that was 

reasonably likely to contribute to the occurrence of an injury resulting in lost workdays or 

restricted duty. Gardner also determined that the failure to eliminate tripping hazards in the bed 

of the welding truck was significant and substantial. The Secretary has proposed a regularly 

assessed penalty of $5,080.00 for Citation No. 8202263. 

37 FMSHRC Page 1054
1. Testimony 

a. The Secretary 

 Inspector Gardner testified that after inspecting the Ford F-250 truck he observed a 

separate Ford welding truck at the mine office parking lot and first inspected the truck's safety 

features. Tr. 56. Gardner stated that after performing those inspections, he observed seven 

oxygen/acetylene tanks lying horizontally in the bed and wrote a separate citation for improper 

tank storage. Id. Gardner also stated that there were welding cables, electrical parts, a sledge 

hammer, and other loose materials that blocked access to the air compressor mounted in the back 

of the pickup bed. Tr. 56-57. Gardner testified that these items presented a stumbling hazard to 

anyone who entered the bed to work, retrieve the cutting torches, or start the welding machine. 

Tr. 59, 66-68. Gardner testified in a non-specific manner regarding the configuration of the truck 

bed and features of the welding machine: 

I'm assuming now, to the best of my recollection, it was like a 4x8. 

It could have been (a) 4x10. You know, I didn't measure it. I'm just 

going from remembering the truck a little bit. ... 

Some welders - to the best of my knowledge that welder was 

sitting up on top of the bed, and you would have to crank it. It 

would be hard to crank it from the ground level because the 

switches on the welders are in the middle. 

I had one of the welders myself that type, and the switch to crank it 

is in the middle. So you're standing on the ground and your bed is 

very high and the welder is on top of that, so it's above your arm 

reach. 

Unless you've got a switch on it to where you can put it down here 

on the bed somewhere and crank it that way, if you have that 

system -- .... 

Tr. 59-61. 

 

 Similarly, Gardner stated that he had not observed A & G employees use the welding 

truck or perform repair work, but stated that in his own work experience he had worked from the 

bed of a welding truck. Tr. 65-66, 70. Gardner testified that the stumbling hazards in the bed 

could lead a worker to suffer severe cuts, broken bones, or a serious head injury. Tr. 71, 74. 

 On cross-examination, Gardner conceded that he had stated during deposition that he 

"didn't know" whether there had been an air compressor in the bed of the Ford welding truck. Tr. 

147. However, Gardner maintained that upon further consideration, he was confident that there 

had indeed been an air compressor in the bed of the welding truck at the time of the inspection. 

Tr. 147-148. When questioned by the court whether there were other alternate standards that 

may regulate the organization of the welding truck bed, Inspector Gardner stated that 30 CFR § 

37 FMSHRC Page 1055
77.208(a), mandating orderly storage of materials within a workplace, did not apply to the bed of 

the pickup truck as that standard was typically applied to storerooms. Tr.173-175; 30 CFR § 

77.208(a). 

b. The Respondent

A & G Driver Chris Bowman testified regarding the setup and operation of the Ford 

welding truck. Bowman stated that the truck had toolboxes on the outside of the bed, a welding 

machine at the front of the bed, and a side compartment where the cutting torches were located. 

Tr.185. Bowman stated that he did not believe the Ford welding truck had a bed-mounted air 

compressor. Id. Bowman testified that he had never observed any miners working in the bed of 

the truck. Tr. 184. Bowman stated that the purpose of the cargo space in the truck bed was to 

haul parts and supplies and that workers could grab needed supplies from either the ground or the 

truck bumper. Tr. 186. Bowman also stated that the welder could be accessed directly from the 

ground. Id. 

A & G Safety Manager Graham also testified that the Ford welding truck had tool 

cabinets that opened outwards and were accessed from the ground. Tr. 212. Graham stated that 

the interior cargo space of the truck was used solely to carry tools and supplies and it was not 

necessary to enter the bed of the truck. Tr. 213-214. 

2. The Cited Standard

30 CFR 77.205(a) mandates:

Safe means of access shall be provided and maintained to all 

working places. 

30 CFR 77.205(a). 

Commission ALJs have upheld violations issued for failure to maintain safe access to a 

pickup truck bed when the evidence presented indicated that workers did in fact enter the bed of 

a pickup truck under unsafe conditions. Boart Longyear Company, 34 FMSHRC 106, 120 

(January 2014)(ALJ Barbour)(upholding citation issued under parallel surface metal/non-metal 

standard 30 CFR § 56.11001 when foreman testified that he failed to use a ladder and climbed 

from the open truck door to the top of an elevated truck bed with loose materials); LaFarge Bldg. 

Materials, 34 FMSHRC 3297, 3301(Dec. 2012) (ALJ Moran)( affirming an alleged violation of 

housekeeping standard 30 CFR § 56.20003 after crediting Inspector testimony that an air 

compressor mounted in the truck bed required daily servicing that could only be performed from 

within the bed of the truck). 

However, a Commission ALJ has ruled that 30 CFR § 77.205(a) only regulates the means 

of access to a workplace and does not impose an obligation to maintain the conditions of the 

workplace itself. Cloverlick Coal Company, 36 FMSHRC 2145, 2160 (August 2014)(ALJ 

McCarthy)(holding that "The clear meaning of §77.205(a) only requires that the means of access 

to a workplace- be it a ladder, walkway, elevated platform, or other designated route-be free from 

37 FMSHRC Page 1056
safety hazards. The standard does not impose, as the inspector suggests, a general duty on 

operators to maintain safe workplaces"). 

3. Analysis 

I first note that the Secretary prosecuted this case as a violation of 30 CFR § 77.205(a) 

and declined, when prompted by the court, to consider whether other standards were more 

appropriate to the facts of the alleged violation. Tr. 173-75. As such, I must determine whether 

the Secretary has shown that the Respondent failed to maintain safe access to all necessary 

"working places" of the Ford welding truck. 30 CFR § 77.205(a). After considering all evidence 

presented, I hold that the Secretary has not demonstrated, by a preponderance of the evidence, 

that A & G workers entered, or would enter, the bed of the welding truck to either access material 

or perform repair work in the ordinary course of mining operations.1

 

Inspector Gardner did not observe any workers in the bed of the truck at the time of the 

inspection. Tr. 56. Gardner did not take any photos of the welding truck bed and offered vague 

and sometimes contradictory testimony regarding the setup of the welding machine. Tr. 60-61. 

Gardner did not record the presence of an air compressor within the text of Citation No. 

8202263, stated at deposition he was not sure if there was an air compressor on the welding 

truck, and testified for the first time at hearing that he had decided after "giving it a lot of 

thought" that there had indeed been an air compressor in the bed of the welding truck. Tr. 147; 

Jt. Ex. 3, 1. Given these inconsistencies and A & G Haul Truck Driver Bowman's testimony that 

he did not recall an air compressor mounted in the bed, I have determined that the Secretary has 

not shown, by a preponderance of the evidence, that there was an air compressor in the bed of the 

welding truck. Tr. 185. 

Furthermore, Gardner did not offer any testimony that he had ever observed workers 

climb into or work from the bed of a welding or repair truck at the Prep Plant site. Tr. 65-66. 

Instead, Inspector Gardner appears to have formed his conclusions about the use of the Ford 

welding truck from his personal work experience repairing farm equipment with his own 

welding machine. Tr. 61, 65. Gardner claimed that the welding machine on the Ford truck was 

similar to his own but he did not provide a specific description or model name to support that 

assertion. Tr. 61. Given that much of Inspector Gardner's testimony regarding the bed setup was 

reference to his own farm truck or how welding trucks are "usually" or "normally" set up, I have 

given Inspector Gardner's testimony little weight in evaluating whether it was necessary to enter 

the bed of this particular Ford welding truck to operate the welder or perform other work. Tr. 59-

61; Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984)(holding that all inferences 

                                                                 1 In making this finding, it is not necessary for me to conclude that A & G workers have 

never and will never enter the bed of the Ford welding truck. The Secretary has alleged, and 

must prove by a preponderance of the evidence, that the oxygen/acetylene tanks and other loose 

materials described within Citation No. 8202263 blocked safe access to the "working places" of 

the welding truck. GX 3; 30 CFR 77.205(a). For the reasons detailed within, I have concluded 

that workers accessed and used the welding machine and toolboxes from the ground and that the 

tanks and loose materials did not impair safe access to the "working places" of the truck. Having 

made this determination, Citation No. 8202263 must be vacated and an academic inquiry into 

whether the truck bed is a work place or cargo space is unnecessary. 

37 FMSHRC Page 1057
must be supported by a rational connection between the evidentiary facts and the ultimate fact 

inferred). 

Additionally, A & G employees Bowman and Graham credibly testified that they were 

familiar with the Ford welding truck and that tools and the welding machine could be accessed 

and used without climbing into the bed of the truck. Tr. 186; 213-14. Both Bowman and 

Graham also stated that it was easy to unload the loose materials described in the citation from 

the bed by simply lowering the tailgate and removing stored materials from ground level. Tr. 

186; 214-15. Having held that workers did not enter the bed of the welding truck, I have 

determined that the presence of oxygen/acetylene tanks and other loose materials in the bed of 

the truck did not impair necessary access to the welding machine, exterior mounted toolboxes, or 

cargo space of the truck bed. Therefore, Citation No. 8202263 is VACATED. 

III.SETTLEMENT 

The Secretary has filed a motion to approve settlement of seven of the citations contained 

in this matter. Pursuant to 29 C.F.R. § 2700.1(b) and Fed. R. Civ. P. 12(f), I strike paragraphs 

three and four from the Secretary's Motion as immaterial and impertinent to the issues 

legitimately before the Commission.2

 The paragraphs incorrectly cite and interpret the case law 

and misrepresent the statute, regulations, and Congressional intent regarding settlements under 

the Mine Act. 

Instead, I have considered the provided specific factual explanations for the agreed upon 

settlement per sections 110(i) and 110(k) of the Act. I acknowledge and accept the explanation 

for the agreed upon settlement contained in the parties' settlement motion and amendments. The 

originally assessed amount was $3,227.00 and the proposed settlement is for $2,111.00. The 

parties have agreed to bear their own legal fees associated with this matter, including costs 

which may be available under the Equal Access to Justice Act. The parties have moved to 

approve the proposed settlement as follows. 

                                                                 2 The Secretary's Motion for Decision and Order Approving Settlement reads in pertinent 

part: 

 

3. In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a still better settlement, the prospects of coming 

out better, or worse, after a full trial, and the resources that would need to be expended in 

the attempt. The Secretary has determined that the public interest and the effective 

enforcement and deterrent purposes of the Mine Act are best served by settling the 

citation as indicated above. 

4. Consistent with the position the Secretary has taken before the 

Commission in The American Coal Company, LAKE 2011-13, the Secretary believes that 

the pleadings in this case and the above summary give the Commission an adequate basis 

for exercising its authority to review and approve the Secretary's settlement under Section 

110(k) of the Mine Act, 30 U.S.C. § 820(k). 

37 FMSHRC Page 1058
Citation 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

VA 2014-11 

8202262 $1,203.00 $600.00 Modify Chance of Injury or Illness from "Reasonably 

Likely" to "Unlikely" 

Remove "Significant and Substantial" Designation 

8202264 $634.00 $634.00 

8178266 $127.00 $127.00 

8202265 $946.00 $450.00 Modify Chance of Injury or Illness from "Reasonably 

Likely" to "Unlikely" 

Remove "Significant and Substantial" Designation

8202269 $117.00 $100.00 Reduce Monetary Penalty 

8202270 $100.00 $100.00 

8202271 $100.00 $100.00 

Total $3,227.00 $2,111.00 

I have considered the representations and documentations submitted and I conclude that 

the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. 

The motion to approve partial settlement is GRANTED and the citations contained in this 

docket are MODIFIED as set forth above. 

37 FMSHRC Page 1059
IV.ORDER

As set forth within, Citation Nos. 8202260 and 8202261 are AFFIRMED as originally 

written and assessed with an individual penalty of $1,203.00 each. Citation No. 8202263 is 

VACATED. Citation Nos. 8202262, 8202264, 8178266, 8202265, 82202269, 82202270, 

8202271 are MODIFIED as set forth above for a partial settlement total of $2,111.00. 

Accordingly, A & G Coal Corporation is ORDERED to pay the Secretary of Labor the 

total sum of $4,517.00 within 30 days of this order.3 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Jennifer Y. Pao, U.S. Department of Labor, Office of the Regional Solicitor, The Curtis Center, 

170 S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106 

James F. Bowman, A & G Coal Corporation, P.O. Box 99, Midway, WV 25878 

3 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 1060
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

May 21, 2015 

 

DECISION 

Appearances: Sean J. Allen, Esq., U.S. Dept. of Labor, Office of the Solicitor, Denver, 

Colorado, for Petitioner; 

 Jason W. Hardin, Esq., and Artemis D. Vamianakis, Esq., Fabian & 

Clendenin, Salt Lake City, Utah, for Respondent. 

Before: Judge Bulluck 

 These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration 

(“MSHA”), against West Ridge Resources, Incorporated (“West Ridge”), pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary 

seeks a total civil penalty in the amount of $82,642.00 for eleven alleged violations of his 

mandatory safety standards.1

 A hearing was held in Salt Lake City, Utah. The issues before me are: (1) whether 

Respondent violated 30 C.F.R. §§ 75.362(a)(2) and 48.7; (2) whether the violations were 

significant and substantial; (3) whether the violations were a result of West Ridge’s reckless 

disregard; and (4) whether the violations were attributable to West Ridge’s unwarrantable failure 

to comply with the standard, where alleged. The parties’ Post-hearing Briefs are of record. 

 For the reasons set forth below, I AFFIRM one order, as issued, VACATE one order, 

assess a penalty against Respondent, and approve the parties’ Partial Settlement. 

 

 1 The parties reached a settlement on nine of the eleven contested citations and orders. 

The total civil penalty proposed for the two remaining orders is $71,242.00. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

WEST RIDGE RESOURCES, 

INCORPORATED, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2013-232 

A.C. No. 42-02233-306321 

Docket No. WEST 2013-722 

A.C. No. 42-02233-317947 

Mine: West Ridge Mine 

37 FMSHRC Page 1061
I. Stipulations 

The parties stipulated as follows: 

1. West Ridge is engaged in mining operations in the United States and these mining

operations affect interstate commerce; 

2. West Ridge is the owner and operator of the West Ridge Mine, Mine I.D. No. 42-

02233; 

3. West Ridge is subject to the jurisdiction of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801; 

4. The Administrative Law Judge has jurisdiction in this matter;

5. The orders at issue herein are properly served by a duly authorized representative of

the Secretary upon an agent of West Ridge on the dates and places stated therein, and may be 

admitted into evidence for the purpose of establishing their issuance, but not for the truthfulness 

or relevance of any statements asserted therein, or for any other purpose other than establishing 

their issuance; 

6. The exhibits offered by the parties are stipulated to be authentic, but no stipulation is

made as to the relevance or truth of the matters asserted therein. 

Tr. 6. 

II. Factual Background

West Ridge owns and operates the West Ridge Mine, an underground coal mine in 

Carbon County, Utah. On September 14, 2012, MSHA Inspector William Vetter, as part of a 

five-person inspection team, traveled to the mine to conduct a health impact inspection on the 

day shift. Tr. 12-13, 81. After arriving that morning, Vetter, MSHA Inspector James Martin, and 

company representative Val Udovich traveled to the 10 East working section. Tr. 15, 22, 118; 

Ex. P-3 at 5. Upon reaching the section, Vetter observed continuous miner operator Daniel 

Espino standing near a continuous miner that had been taken out of service due to a broken water 

hose. Tr. 16. Vetter then asked Espino whether he had taken certain air measurements, although 

the actual exchange between the parties is disputed. Tr. 17-19, 169-71, 193-94. After that 

conversation, section foreman Jeff Failor arrived on the scene, and also engaged in a 

conversation with Vetter about the scrubber air reading on the continuous miner. 2 Tr. 18-20, 

205-08. Thereafter, Vetter issued an order to West Ridge for its failure to measure the scrubber 

velocity on the continuous miner as part of the on-shift examination, and another for its failure to 

train Espino on taking the scrubber velocity measurement. Tr. 23; Ex. P-3, P-8. 

2

 A scrubber is a high-velocity fan attached to a continuous miner which draws air from 

the front of the miner through a screen. The screen captures dust, and clean air is discharged. Tr. 

36-37. 

37 FMSHRC Page 1062
III. Findings of Fact and Conclusions of Law 

 A. Order No. 8481679 

 1. Fact of Violation 

 

Vetter issued 104(d)(2) Order No. 8481679, alleging a “significant and substantial” 

violation of section 75.362(a)(2) that was “reasonably likely” to cause an injury that could 

reasonably be expected to be “permanently disabling,” and was caused by West Ridge’s 

“reckless disregard” and “unwarrantable failure” to comply with the standard.3 The “Condition 

or Practice” is described as follows: 

An inadequate on-shift examination was conducted in 10 east working section 

(MMU-004) in regard to compliance with the respirable dust control parameters 

specified in the approved ventilation plan. The person designated by the operator 

to conduct the examination completed a portion of the examination but failed to 

measure the scrubber velocity on continuous miner JM 5062, unit #11-07. A 30-

foot cut had been made in the No. 1 bleeder entry working face without the 

examination being completed. 

The section foreman was aware of the incomplete examination and reportedly 

instructed the miner operator to commence mining coal and the examination 

would be completed later. This is aggravated conduct constituting more than 

ordinary negligence. 

The MMU-004 working section is on a reduced standard of 0.9 mg/m3 and over 

the last 12 months there have been five respirable dust samples revealing over 

exposure. This violation is an unwarrantable failure to comply with a mandatory 

standard. 

Ex. P-3. The Order was terminated after the scrubber velocity reading was taken. 

 3

 30 C.F.R. § 75.362(a)(2), “On-shift examination,” provides that “[a] person designated 

by the operator shall conduct an examination to assure compliance with the respirable dust 

control parameters specified in the mine ventilation plan. In those instances when a shift change 

is accomplished without an interruption in production on a section, the examination shall be 

made anytime within 1 hour of the shift change. In those instances when there is an interruption 

in production during the shift change, the examination shall be made before production begins on 

a section. Deficiencies in dust controls shall be corrected before production begins or resumes. 

The examination shall include air quantities and velocities, water pressures and flow rates, 

excessive leakage in the water delivery system, water spray numbers and orientations, section 

ventilation and control device placement, and any other dust suppression measures required by 

the ventilation plan. Measurements of the air velocity and quantity, water pressure and flow rates 

are not required if continuous monitoring of these controls is used and indicates that the dust 

controls are functioning properly.” 

37 FMSHRC Page 1063
 In order to establish a violation of one of his mandatory safety standards, the Secretary 

must prove that the violation occurred “by a preponderance of credible evidence.” Keystone Coal 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 

FMSHRC 2148, 2152 (Nov. 1989)). 

 The Secretary argues that West Ridge failed to take the scrubber velocity reading on the 

continuous miner as part of the on-shift examination, which was required to be conducted prior 

to commencement of mining on the shift. Sec’y Br. at 6-7. 

 In response, West Ridge contends that the scrubber velocity must have been checked, 

because all of the other dust parameter checks had been performed on the continuous miner, and 

mining would not have begun without the reading having been taken. Resp’t Br. at 5-7. It further 

argues that Espino did not understand that Vetter was asking him whether he had taken the 

scrubber reading; Espino’s unresponsive answer mistakenly led Vetter to believe that Espino had 

not taken the reading. Resp’t Br. at 3-4. The confusion continued, it argues, when Failor 

indicated that he had not received the scrubber reading and Vetter, once again, drew an 

erroneous conclusion, believing Failor’s statement to mean that he had instructed Espino to begin 

mining and had told him that he, Failor, would check the scrubber later. Resp’t Br. at 4-5. West 

Ridge also points out that it had not been cited for excess respirable dust in the two-year period 

preceding issuance of this Order. Resp’t Br. at 9-12. 

 Vetter had worked for MSHA for approximately 23 years, including 17 years as a regular 

inspector.4

 Tr. 8-11. He testified that when he came upon the out-of-service continuous miner, 

Espino informed him that the water hose had been damaged and was being fixed. Tr. 15-16. 

Espino continued that the crew had cut 30 feet of coal at the face, and had used the scrubber up 

until the hose ruptured. Tr. 17. Vetter then asked Espino for the scrubber reading and, receiving 

no response, asked about the hydrogen sulfide reading, which Espino offered. 5 Tr. 17-18. Vetter 

asked again about the scrubber reading and, according to Vetter, Espino lowered his voice and 

replied “I don’t know, I didn’t take it.” Tr. 18; Ex. P-3 at 4. Espino added that no one else had 

taken the reading because the section foreman had directed him to start mining, and had stated 

that he, the foreman, would take the reading later. Tr. 18-19. Espino then explained that the 

regular miner operator takes the reading, that he was just the miner helper filling in, and that he 

did not know how to take the scrubber reading. Tr. 19. According to Vetter, Failor then arrived 

on the scene and, in an apologetic tone, stated that he had, indeed, told Espino to start mining, 

and that he would check the scrubber later. Tr. 19-20; Ex. P-3 at 4. Failor allegedly also told 

Vetter that he had not taken the scrubber measurement because he had had other things to do on 

the section. Tr. 19-20; Ex. P-3 at 5. Vetter then informed Failor that the respirable dust 

parameters were required to be checked before cutting coal, and that he would be issuing a 

104(d) order. Tr. 20-21. 

 

 4

 At the time of the hearing, Vetter served as a health specialist. Tr. 11. 

5

 Vetter explained that the scrubber velocity check is performed by inserting a Pitot tube 

into a scrubber duct port directed toward the air path, and the velocity pressure then registers on 

a Magnehelic gauge. Tr. 135-39. 

37 FMSHRC Page 1064
 Vetter explained that West Ridge’s ventilation plan requires that the scrubber be used 

when cutting coal further than 20 feet, and that the reading be taken before the start of the shift. 

Tr. 25-30; Ex. P-4 at 3. According to Vetter, because West Ridge had not been actively mining 

on the section during the previous shift, section 75.362(a)(2) requires that the scrubber velocity 

check be performed before cutting coal. Tr. 32. He added that if West Ridge were to continue 

mining without checking the scrubber velocity, the continuous miner operator could become 

exposed to excess respirable dust and develop pneumoconiosis or silicosis. Tr. 39-42, 52-54. He 

opined that the danger of contracting respiratory disease was heightened because the section was 

on a reduced standard for quartz, and had had five reported dust overexposures prior to issuance 

of his Order.6 Tr. 40-41, 47-51; Ex. P-6. On cross-examination, Vetter conceded that the 

overexposures were not in violation of section 70.101, because compliance is determined by 

comparing the average of five samples to the applicable dust standard. Tr. 91-92, 112-14. 

 Espino gave a different account of his conversation with Vetter. He testified that Vetter 

began the discussion by asking him for the velocity measurement which, Espino believed, 

referred to the air velocity at the face; he responded that he had to have 12,000 cfm in the face 

and 22,000 cfm in the last open crosscut to run the miner, but that that reading was usually taken 

by a foreman. Tr. 169-70. Vetter then allegedly replied, “that’s not your face, what’s your 

velocity?” Tr. 170. Espino stated that he believed Vetter to be referring to the air velocity in the 

last open crosscut but, after a minute or two of other conversation about which Espino did not 

elaborate, Vetter left him and began talking to Failor. Tr. 170-71. Espino testified that he had “no 

clue” that Vetter was referring to the scrubber velocity, because Vetter did not specifically use 

that term; he, Espino, refers to it as the “mag reading,” or “mag velocity.” Tr. 164-65, 171. 

According to Espino, when Vetter asked about the velocity, “[t]hat’s when it all went bad, you 

know, and I didn’t know if I was in trouble.” Tr. 194. 

 Espino clearly remembered some events surrounding Vetter’s inspection, but could not 

remember others. During direct examination, Espino testified to the position of the face, entries, 

last open crosscut, continuous miner, ventilation tubes, mine fan, and where he was stationed 

when he encountered Vetter; and he drew a corresponding diagram. Tr. 174-181; Ex. R-25. 

Espino also remembered checking the bits and sprays as part of his parameter checks. Tr. 182. 

However, he testified that he could not remember whether the mechanic or Failor took the 

scrubber reading, the mechanic’s name, the total distance of the cut, or any conversation with 

Vetter before or after he was asked about the air velocity. Tr. 182, 184-85, 189-92. Initially, 

Espino testified that he could not remember whether Failor told him to begin mining and that he 

would check the scrubber velocity later; then he did an about-face and declared that Failor had 

not said that. Tr. 172-73. Espino admitted, however, that, as the miner operator, he was the 

person designated to conduct the on-shift examination. Tr. 190. 

 6

 30 C.F.R § 70.101, “Respirable dust standard when quartz is present,” provides that 

“[w]hen the respirable dust in the mine atmosphere of the active workings contains more than 5 

percent quartz, the operator shall continuously maintain the average concentration of respirable 

dust in the mine atmosphere during each shift to which each miner in the active workings is 

exposed at or below a concentration of respirable dust . . . in terms of an equivalent concentration 

. . . computed by dividing the percent of quartz into the number 10.” 

37 FMSHRC Page 1065
Failor testified that he first encountered Vetter while coming down the Number 2 Entry 

toward the last open crosscut. Tr. 205-06. According to Failor, upon identifying himself as the 

section foreman, Vetter informed him that he would be issuing an order to West Ridge; then, as 

they walked toward the continuous miner, Vetter talked about the dangers of respirable dust 

exposure. Tr. 206. Initially, Failor testified that he could not recall any other conversation with 

Vetter but, when confronted with the statement in Vetter’s notes, that he “indicated that he had 

other things to attend to before he could measure the scrubber air,” Failor stated that he actually 

said “I had things to attend to; I hadn’t received the scrubber reading yet.” Tr. 206-08; Ex. P-3 at 

5. Failor also denied directing Espino to begin mining before the scrubber reading was taken, but

admitted that he never saw Espino or the mechanic, who he identified as Chris Walkingshaw, 

check the scrubber velocity. Tr. 208-09. 

I fully credit the Secretary’s version of events, based on Vetter’s testimony and his 

contemporaneous notes, that Espino told Vetter that he did not take the reading, that Failor had 

directed Espino to start mining, and that Failor had told Espino that he would take the scrubber 

reading later. Consistent with this finding, the evidence supports a finding that Espino told Vetter 

that he did not know how to perform the scrubber check, especially in light of his admission that 

he was concerned about whether he was “in trouble.” This statement was probably a knee-jerk 

reaction to the stressful probability of being cited since, as will be more fully discussed, it was 

not at all true. Failor’s account of events is simply implausible based on the record, and I do not 

find credible his denial of having directed Espino to start mining without having performed the 

check. Notably, West Ridge only urges that performance of the check be inferred, rather than 

advancing an argument that it actually had been performed. 

The purpose of requiring that parameter checks be performed on a continuous miner prior 

to commencement of mining, or within an hour of a shift change where no break in production 

has occurred, is made clear by the language of the standard - - so that deficiencies in dust 

suppression equipment can be detected and corrected prior to active mining or fairly early in a 

mining cycle - - a goal obviously intended to limit miners’ overexposure to respirable dust. It is 

equally clear that Failor’s conduct amounted to gambling with the health of his crew. I find as 

fact that the scrubber check was required prior to cutting coal on the shift, a contention advanced 

by the Secretary that is unchallenged. Therefore, because the operator failed to ensure that the 

on-shift examination of the continuous miner was completed by checking the scrubber velocity 

prior to commencement of mining, I find that West Ridge violated section 75.362(a)(2). 

 2. Significant and Substantial

To prove that a violation is “significant and substantial” (“S&S”) under National 

Gypsum, 3 FMSHRC 822 (Apr. 1981), the Secretary must establish the four criteria set forth by 

the Commission in Mathies Coal Company, 6 FMSHRC 1 (Jan. 1984). The Secretary bears the 

burden of proving: 1) the underlying violation of a mandatory safety standard; 2) a discrete 

safety hazard - - that is, a measure of danger to safety - - contributed to by the violation; 3) a 

reasonable likelihood that the hazard contributed to will result in injury; and 4) a reasonable 

likelihood that the injury in question will be of a reasonably serious nature. Mathies, 6 FMSHRC 

1, 3-4; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995); Austin 

Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 

37 FMSHRC Page 1066
(Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable 

likelihood of injury, should be made in the context of “continued normal mining operations.” 

U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a 

violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, 

Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 

2011-12 (Dec. 1987). The Secretary must prove that there is a reasonable likelihood that the 

hazard contributed to by the violation will cause an injury, not a reasonable likelihood that the 

violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); 

Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014). The Commission and its 

judges have found violations for inadequate pre-shift and on-shift examinations to be S&S 

regardless of whether hazards were detected. See Buck Creek Coal Co., 17 FMSHRC 8 (Jan. 

1995); ICG Knott County, LLC, 33 FMSHRC 402, 411-12 (Feb. 2011) (ALJ); ICG Hazard, LLC,

Unpub. Dec., slip op. at 17-20 (Oct. 2012) (ALJ) (finding that lack of an adequate on-shift 

examination of a continuous miner contributes to the hazard of miners failing to be on guard 

against exposure to respirable dust). 

The fact of violation has been established. The second criterion of the Mathies test has 

been met, in that the inadequate on-shift examination, deficient in completion of parameter 

checks on the continuous miner, increased the odds of miners’ overexposure to hazardous 

concentrations of respirable dust. Inhalation of respirable dust would be reasonably likely to 

result in permanently disabling pneumoconiosis or silicosis. Therefore, I find that the violation 

was S&S. 

3. Negligence and Unwarrantable Failure 

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 2001-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission has 

recognized the relevance of several factors in determining whether conduct is "aggravated" in the 

context of unwarrantable failure, such as the extensiveness of the violation, the length of time 

that the violation has existed, whether the violation posed a high degree of danger, whether the 

violation was obvious, the operator’s knowledge of the existence of the violation, the operator’s 

efforts in abating the violative condition, and whether the operator has been put on notice that 

greater efforts are necessary for compliance. See Wolf Run Mining Co., 35 FMSHRC 3512, 3520 

(Dec. 2013); Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013); Manalapan Mining 

Co., 35 FMSHRC 289, 293 (Feb. 2013). Each case must be examined on its own facts to 

determine whether an actor's conduct is aggravated, or whether mitigating circumstances exist. 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Although some factors may be 

irrelevant to a particular scenario, all relevant factors must be examined. ICG Hazard, LLC, 36 

FMSHRC 2635, 2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC 1346, 1351 (Dec. 2009)). 

 In arguing that West Ridge’s conduct was characterized by a reckless disregard of the 

standard that rose to the level of an unwarrantable failure to comply with its terms, the Secretary 

points out that the violation was extensive, since West Ridge had mined 30 feet of coal before 

37 FMSHRC Page 1067
conducting the check, and highly dangerous, because miners were unaware of possible exposure 

to hazardous concentrations of respirable dust. Sec’y Br. at 13-14. 

West Ridge counters that its negligence was mitigated by its check of the other 

parameters on the continuous miner, maintenance of adequate ventilation at the face and in the 

last open crosscut, and idling of the continuous miner after the water-line break. Resp’t Br. at 14-

15. It also notes that the scrubber had been used on the shift during the morning cut and, when

checked by Vetter, had a compliant velocity. Resp’t Br. at 15. Specifically addressing the 

unwarrantable failure allegation, West Ridge points out that the cut lasted only between 45 

minutes and an hour and 15 minutes, that the condition was isolated to a single continuous miner 

on one shift, that West Ridge had no prior citations for violations of the standard, that it had 

trained Espino on the on-shift examination requirements, and that Failor believed that the 

scrubber velocity had been measured. Resp’t Br. at 15-18. 

Failor’s instruction to Espino to begin mining prior to completion of the on-shift 

examination of the continuous miner, demonstrates his reckless disregard of the standard’s 

requirements and, as an agent of the operator, his negligence is imputable to West Ridge. See 

Nelson Quarries, Inc., 31 FMSHRC 318, 329 (Mar. 2009). Furthermore, I find that West Ridge’s 

use of the scrubber during the shift’s 30 foot cut, prior to having taken the reading, aggravates, 

rather than mitigates, its negligence. The fact that the untimely scrubber reading turned out to be 

compliant by no means lessens the uncertain outcome of rolling the dice - - an impermissible 

gamble with the miners’ health and safety. Respecting the unwarrantable failure charge, the 

Commission has recently recognized that knowledge of an obvious violation clearly constitutes 

aggravated conduct in support of an unwarrantable failure determination. Wolf Run, 35 

FMSHRC at 3521. Given that the section was subject to a reduced standard due to excess quartz, 

and had registered overexposures of respirable dust, the deliberateness of the operator’s failure to 

timely complete the scrubber check on the continuous miner was highly dangerous, and far 

outweighs other factors, such as extensiveness, efforts to abate, duration of violation, and notice 

of the need for greater compliance. Therefore, I find that the Secretary has met his burden of 

establishing that West Ridge displayed a reckless disregard of the standard, and aggravated 

conduct that constitutes unwarrantable failure. 

B. Order No. 8481680 

1. Fact of Violation

Vetter issued 104(g)(1) Order No. 8481680, alleging a “significant and substantial” 

violation of section 48.7 that was “reasonably likely” to cause an injury that could reasonably be 

expected to be “permanently disabling,” and was attributable to West Ridge’s “reckless 

disregard.”7

 

7

 30 C.F.R. § 48.7, “Training of miners assigned to a task in which they have had no 

previous experience; minimum courses of instruction,” provides that “[m]iners assigned to new 

work tasks . . . shall not perform new work tasks . . . until training . . . has been completed. This 

training shall not be required for miners who have been trained and who have demonstrated safe 

operating procedures for such new work tasks within 12 months preceding assignment. This 

(continued...) 

37 FMSHRC Page 1068
The “Condition or Practice” is described as follows: 

Daniel Espino, continuous miner operator, was designated by the operator to 

conduct the on-shift examination to assure compliance with the respirable dust 

control parameters specified in the mine ventilation plan as required by 30 C.F.R. 

75.362(a)(2). Mr. Espino indicated he was unfamiliar with the procedures for 

measuring the scrubber velocity on continuous miner JM 5062, unit 11-07 on 

working section 10 East, MMU-004. The scrubber velocity was not measured 

prior to a 30-foot cut being made. The section foreman was aware of the 

incomplete examination and instructed Mr. Espino to commence mining coal 

from the No. 1 working face. The Federal Mine Safety and Health Act of 1977 

declares an untrained miner a hazard to himself and others. 

Ex. P-8. The Order was terminated when Espino was trained. 

The Secretary argues, based on Espino’s statement to Vetter that he did not know how to 

perform the scrubber check, that Espino was not trained to take the scrubber velocity reading on 

the continuous miner. Sec’y Br. at 19. 

Here, again, West Ridge claims that Espino was confused by Vetter’s inquiry, leading to 

Vetter’s mistaken belief that Espino had not been trained to conduct the scrubber check. Resp’t 

Br. at 3, 22. It argues that, indeed, Espino had been trained to conduct the on-shift examination 

of the continuous miner, initially by foreman Tyler Norton in July of 2011; since becoming a 

regular continuous miner operator in April of 2012, Espino had been performing the parameter 

checks on his equipment. Resp’t Br. 22-23. 

 Vetter explained that the standard requires equipment operators to receive training before 

running unfamiliar equipment, and that Espino had told him that he did not know how to perform 

the scrubber check. Tr. 69-70; Ex. P-8 at 3, 5. In reviewing Espino’s July 27, 2011 training 

record, Vetter observed that while the record notes that Espino received training as a “miner 

operator/helper,” it does not indicate that Espino was trained as a designated person to conduct 

on-shift examinations of the continuous miner. Tr. 72-73; Ex. P-9 at 2. 

Espino testified assertively that he knew how to take the scrubber velocity reading, and 

vehemently denied telling Vetter that he did not know how to do it. Tr. 167, 183. He explained 

that he had first received continuous miner training while serving on foreman Norton’s crew as a 

roof bolter, in preparation for substituting for the regular miner operator. Tr. 156-59. Referring to 

his training records, Espino testified that on July 27, 2011, Norton had trained him to change bits 

and serve as a miner helper and, five months before the inspection, he had become a full-time 

miner operator on foreman Bill Anderson’s crew. Tr. 159, 160-62; Ex. P-9 at 2. Espino stated 

that he had gotten into an argument with supervisor Scott Jones, who administered the training to 

7

 (...continued) 

 training shall also not be required for miners who have performed the new work tasks and who 

have demonstrated safe operating procedures for such new work tasks within 12 months 

preceding assignment . . . .” 

37 FMSHRC Page 1069
abate the violation, because he thought that it was “dumb” that he be required to be trained in a 

task that he already knew how to perform. Tr. 172. 

Tyler Norton testified that he had been a section foreman at West Ridge for almost five 

years, and that he had trained Espino to operate the continuous miner when his regular miner 

operator took a vacation. Tr. 213-14. Norton explained that he had begun task training Espino on 

July 27, teaching him how to conduct all parameter checks on the continuous miner. Tr. 215-

219; Ex. P-9 at 2, R-18 at 1. He recalled that on that day he had taken the scrubber reading, and 

shown Espino how to take the measurement; he estimated that he had supervised Espino for 

approximately 85 percent of that day’s ten-hour shift. Tr. 220-22. Espino’s training continued on 

July 28, when Espino took the scrubber reading under Norton’s supervision, and did likewise on 

the following day. Tr. 222; Ex. R-18 at 2, 3. Failor also testified that Espino had been trained to 

perform the check, and that he had seen him take the reading. Tr. 204. 

As has been discussed, the evidence establishes that sufficient conversation had 

transpired between Vetter and Espino for Espino to have understood Vetter’s inquiry about the 

scrubber velocity, and that Espino told Vetter that he did not know how to take the measurement. 

It is also clear, based on Espino’s training records and credible testimony of foremen Norton and 

Failor, that Espino had been task trained to take the scrubber reading and had, in fact, done so on 

previous occasions. A reasonable analysis of the facts leads to an obvious conclusion that Espino 

attempted to avoid the consequences of his incomplete on-shift examination of the continuous 

miner by misleading Vetter. Given the outcome of the lie, suffice it to say that lying to the 

inspector was a bad idea. Moreover, it is highly implausible that Espino would have served as a 

continuous miner operator for five months without knowing how to perform all essential dust 

control checks on the equipment that he operated; according to the record, the scrubber velocity 

check is not difficult to perform. Indeed, on the witness stand, Espino appeared insulted by the 

suggestion that he was somehow lacking in all aspects of operating his equipment. Therefore, 

while it was reasonable for Vetter to have concluded that Espino had not been task trained, the 

facts bear out the opposite conclusion, and I find that the Secretary has failed to prove a violation 

of section 48.7. 

IV. Penalty

While the Secretary has proposed a civil penalty of $52,500.00 for Order No. 8481679, 

the Judge must independently determine the appropriate assessment by proper consideration of 

the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg 

Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

West Ridge’s Assessed Violation History Report for the two-year period preceding the 

subject inspection indicates that 646 violations had become final orders of the Commission. 

None of these violations, however, was of section 75.362(a)(2) or section 70.101, the standard 

governing respirable dust when quartz is present. Ex. P-1. Therefore, I do not find West Ridge’s 

violations history to be an aggravating factor in assessing a penalty. I also find that West Ridge is 

a large operator, that the proposed penalty will not affect its ability to continue in business, and 

that it demonstrated good faith in achieving rapid compliance after notice of the violation. Ex. 

P-13 at 1. The remaining criteria involve consideration of the gravity of the violation, and West 

37 FMSHRC Page 1070
Ridge’s negligence in committing it. These factors have been discussed fully, and it has been 

established that this S&S violation of section 75.362(a)(2) was reasonably likely to cause 

permanently disabling injuries, and that West Ridge displayed a reckless disregard that 

constituted unwarrantable failure to comply with the standard. 

 Both parties’ arguments concerning this specially assessed penalty focus on the 

overexposures of respirable dust detected on the cited section. Vetter testified that he made his 

recommendation for a special assessment based on the five reported dust overexposures, and that 

an increased penalty would serve as a deterrent. Tr. 68; Ex. P-6. The same justification is given 

in MSHA’s Narrative Findings for a Special Assessment, and the Secretary incorporates this 

argument in his Brief, along with previous contentions concerning gravity and negligence. Ex. 

P-13 at 2; Sec’y Br. at 17. West Ridge asserts that it was in compliance with the applicable 

respirable dust standard and, accordingly, did not receive a single violation of section 70.101 in 

the two years prior to inspection. Resp’t Br. at 9-12, 19-20. I find the Secretary’s justification for 

specially assessing the proposed penalty for this Order somewhat overreaching, given that the 

average of the samples was in compliance with the applicable standard. The Secretary’s Special 

Assessment Narrative reflects that under a regular assessment applying Part 100 penalty points, 

this violation would have been assessed at $18,742.00. Ex. P-13 at 1. While I note that West 

Ridge had received no prior violations of this on-shift examination standard or the applicable 

dust standard, I also give consideration to the five overexposures. Therefore, having considered 

the six Sellersburg criteria, I find that a penalty of $30,000.00 is appropriate. 

V. Approval of Settlement 

The parties have filed a Motion to Approve Settlement and Order Payment respecting 

docket No. WEST 2013-232; and Citation No. 8461981 has been vacated. Pursuant to 29 C.F.R. 

§ 2700.1(b) and Fed. R. Civ. P. 12(f), I strike paragraphs six and seven from the Secretary’s 

motion as immaterial and impertinent to the issues legitimately before the Commission.8

 The 

 8

 The Secretary’s Motion to Approve Settlement and Order Payment reads in pertinent 

part: 

6. In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a still better settlement, the prospects of 

coming out better, or worse, after a full trial, and the resources that would need to 

be expended in the attempt. The Secretary has determined that the public interest 

and the effective enforcement and deterrent purposes of the Mine Act are best 

served by settling the citations as indicated above. 

7. Consistent with the position the Secretary has taken before the Commission in 

The American Coal Company, LAKE 2011-13, the Secretary believes that the 

pleadings in this case and the above summary give the Commission an adequate 

basis for exercising its authority to review and approve the Secretary’s settlement 

under Section 110(k) of the Mine Act. 30 U.S.C. § 820(k) 

37 FMSHRC Page 1071
paragraphs incorrectly cite and interpret the case law, and misrepresent the statute, regulations, 

and Congressional intent regarding settlements under the Mine Act. 

A reduction in penalty from $11,400.00 to $6,161.00 is proposed. The citations, initial 

assessments, and proposed settlement amounts are as follows: 

 Initial Proposed 

Citation No. Assessment Settlement 

8462038 $ 2,473.00 $ 1,500.00 

8462088 $ 1,111.00 $ 1,111.00 

8459239 $ 1,530.00 $ 800.00 

8459240 $ 1,530.00 $ 800.00 

8462039 $ 207.00 $ 100.00 

8461978 $ 807.00 $ 450.00 

8482037 $ 1,026.00 $ 600.00 

8461980 $ 1,304.00 $ 800.00 

8461981 $ 1,412.00 $ 0.00 

TOTAL: $11,400.00 $ 6,161.00 

I have considered the representations and documentation submitted in these matters under 

section 110(k) of the Act. Specifically, regarding Citation No. 8462038, the Secretary has 

credited Respondent’s contention that the air velocity was sufficient at the beginning of the shift 

and, unknown to the operator, a Band-Aid became stuck in the fan, causing the drop in velocity. 

Regarding Citation Nos. 8469239 and 8469240, the Secretary has credited Respondent’s 

contentions that it provided two layers of screen guarding over the fan blades, and that this 

guarding had been in place for previous inspections and not cited. Regarding Citation No. 

8462039, the Secretary has credited Respondent’s contention that the cited area was neither a 

working section nor a permanent oil storage location. Regarding Citation No. 8461978, the 

Secretary has credited Respondent’s contentions that the ventilation map on the working section 

was accurate, and that the miners on the section would not be affected by the inaccurate mine 

manager’s map. Regarding Citation No. 8482037, the Secretary has credited Respondent’s 

contentions that the gap on the light switch housing on the scoop occurred after the last 

inspection, and that the inspecting electrician was not an agent of the operator. Regarding 

Citation No. 8461980, the Secretary has credited Respondent’s contention that the operator 

ceased mining activity when its monitoring system reached 1.95 percent methane. Accordingly, I 

conclude that the proffered settlement is appropriate under section 110(i) of the Act. 

37 FMSHRC Page 1072
ORDER 

 WHEREFORE, it is ORDERED that Order No. 8481680 is VACATED; that Citation 

Nos. 8462038, 8462088, 8462039 and 8461980 and Order No. 8481679 are AFFIRMED, as 

issued; that the Secretary MODIFY Citation No. 8461978 to reduce the level of gravity to “2 

persons affected;” and Citation Nos. 8459239, 8459240 and 8482037 to reduce the degree of 

negligence to “low;” and that West Ridge Resources, Incorporated, PAY a civil penalty of 

$36,161.00 within 30 days of the date of this Decision.9

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

 Administrative Law Judge 

Distribution: 

 

Sean J. Allen, Esq. U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, 

Suite 216, Denver, CO 80204 

Jason W. Hardin, Esq., and Artemis D. Vamianakis, Esq., Fabian & Clendenin, 215 South State 

Street, Suite 1200, Salt Lake City, UT 84111 

/ss 

 9

 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. Please include Docket 

numbers and A.C. numbers. 

37 FMSHRC Page 1073
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 

May 26, 2015 

DECISION PENDING FINAL ORDER 

Appearances: Wes Addington, Esq., Appalachian Citizens Law Center, Whitesburg, 

Kentucky, for Complainant 

Karen Barefield, Esq., U.S. Department of Labor, Office of the Solicitor, 

Arlington, Virginia, for the Secretary of Labor 

Stephen Hodges, Esq., Penn Stuart & Eskridge, Abingdon, Virginia, for 

the Respondent 

Before: Judge Moran 

Introduction 

This case is before the Court upon a Complaint of Discrimination under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). For the reasons which follow, the Court 

finds that Complainant Charles Riordan engaged in protected activity, that subsequently he was 

terminated, and that his employment termination was motivated at least in part by that activity. 

Further, Respondent Knox Creek Coal did not prove that it was also motivated by the miner's 

unprotected activity and that it would have taken the adverse action for the unprotected activity 

alone. Accordingly, Mr. Riordan’s discrimination claim is upheld. 

The basics of a discrimination claim under the Mine Act are well-established and clear. 

In order to establish a prima facie violation of §105(c)(1) of the Mine Act, the Complainant must 

prove, by a preponderance of the evidence, that (1) he engaged in protected activity; (2) that he 

suffered an adverse action; and (3) that the adverse action taken against him by the mine operator 

was motivated in any part by that protected activity. In order to rebut a prima facie case, the 

operator must either show that no protected activity occurred or that the adverse action was in no 

part motivated by the miner’s protected activity. Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). If the operator cannot rebut 

SECRETARY OF LABOR, MSHA, on 

Behalf of Charles Riordan, 

Complainant, 

v. 

KNOX CREEK COAL CORPORATION, 

 Respondent,

 DISCRIMINATION PROCEEDING 

Docket No. VA 2014-343-D 

NORT CD 2014-03 

Mine: Tiller Number 1 

Mine ID: 44-06804 

37 FMSHRC Page 1074
the miner’s prima facie case in this manner, it nevertheless can defend affirmatively by proving 

that (1) it was also motivated by the miner’s unprotected activity and (2) it would have taken the 

adverse action in any event for the unprotected activity alone. The operator bears the burden of 

proof in such an affirmative “mixed motive” defense. Haro v. Magma Copper Co., 4 FMSHRC 

1935 (Nov. 1982).1 

Overview of the Court’s Findings 

The details of the evidence, and the Court’s findings regarding that evidence, follow but 

the essence of this case can be succinctly stated. Charles Riordan, a foreman at Knox Creek’s 

Tiller Number 1 Mine, made numerous safety complaints, which were primarily, but not 

exclusively, directed at ventilation problems at the mine. There is no genuine dispute that the 

mine was having significant, continuing ventilation problems. This matter came to a head when 

Mr. Riordan participated in a conversation with mine president Ron Patrick at a company picnic, 

speaking with the president about the mine’s continuing ventilation problems. Riordan’s candor 

with the president did not sit well with his immediate supervisor, Mark Jackson, and he 

confronted him shortly after that event, telling Riordan that he had thrown him “under the bus” 

by his words to president Ron Patrick about the ventilation issues. 

 Knox Creek’s defense is, at its core, a claim that Mr. Riordan was simply the unfortunate 

victim of the closing of sister mines and the consequent reduction in the number of its 

supervisory employees. Knox Creek asserted that it used a fair scoring system for deciding 

which employees would be retained, and that Mr. Riordan didn’t make the cut. There are many 

holes with this claim and the Court finds that the system was not fairly applied and, of equal 

importance, it also finds that the witnesses offered up by the Respondent, Mr. Patrick, Mr. Jessee 

and Mr. Jackson were not credible in their testimony as to the scoring system nor as to their other 

claims about Mr. Riordan. In contrast, the Court finds that Mr. Riordan was a very credible and 

forthright witness. 

Findings of Fact 

 At the hearing, Complainant Charles Riordan was called as the first witness. Mr. Riordan 

has had about 32 years of employment in the mining industry. Over those years he has worked as 

an electrician, mine section foreman, and on occasion he would fill in as a mine superintendent.2

When he first began work at Knox Creek’s Tiller No. 1 Mine, in 2004, he was an electrician 

repairman on the section. In addition to being a section foreman, Riordan began conducting a 

mine foreman certification class in 2012. Riordan also conducted other miner training classes, 

such as newly employed experienced miner training. Tr. 33. He started the class so that 

employees could take the Virginia Mine Foreman, First Class Mine Foreman Test and become 

 1

 Knox Creek has contended that, in light of a decision by the United States Supreme 

Court regarding discrimination claims under the Age Discrimination in Employment Act 

(ADEA), the Mine Safety and Health’s Review Commission’s burden shifting formula must now 

be discarded. That argument is addressed infra. 

2 Without contradiction, Mr. Riordan testified that he is a certified electrician and a 

certified mine foreman. 

37 FMSHRC Page 1075
certified. Tr. 31. Riordan stated that, up until July 2013, part of his work was conducting newly 

employed experienced miner training, but the majority of his work involved outby examinations 

and filling-in on sections, as needed. Tr. 52. Those described work duties continued until he was 

dismissed. For the part of his job involving training, he conducted basic classroom discussions 

on air calculation readings, mine maps, and ventilation controls. Tr. 52. Presently there are 

foremen working at the Tiller No. 1 whom Riordan trained. Tr. 32. 

The Complainant’s Safety Complaints 

 The Mine’s Continuing Ventilation Problems 

Addressing the central basis of his complaint, Mr. Riordan testified that he began making 

verbal safety complaints about the mine’s ventilation in late 2012 and that those ventilation 

conditions became progressively worse through the next year.3

 Regarding the ventilation 

problems, according to his testimony, those problems worsened to the point that the mine was 

3 Mr. Riordan also had issues about miner bits and bit lugs on continuous miners. Tr. 36. 

The Court did not consider the continuous miner bits issue to be a significant part of this matter 

and the decision is not based on the subject. The brief discussion of this is included here only for 

the sake of completeness. There was testimony that a lot of bit lugs on the drum of the 

continuous miners were being broken due to the nature of the roof. Tr. 39. The problem 

associated with this was that the lugs were not being replaced as they were being broken off and 

that there was an inadequate supply of replacement bits and that this was a problem for all the 

sections. Tr. 40. Mining with broken bits creates an ignition hazard and, compounding that, this 

is a gassy mine, too, being on a 10 or 15 day “iSpot” for methane liberation. Id. The bit lugs 

issue was also discussed with his immediate supervisor, Mark Jackson. Tr. 40. Riordan couldn’t 

be sure if he spoke with mine superintendent, Scott Jessee, about the lugs, but as best as he could 

recall, Jessee told him he would look into it. Tr. 41. Respondent’s Counsel questioned Mr. 

Riordan about the issue of bit lugs on the continuous miner. Tr. 74. Riordan stated that bits 

which are broken off are required to be replaced, and an MSHA policy letter in the summer of 

2013 spoke to that problem. Tr. 75. Riordan did not contend that the machines were operating 

when in a dangerous condition but rather that there was too much delay in obtaining replacement 

lugs. Riordan agreed that Anthony Melcher, a maintenance foreman, also complained about the 

lugs and that he was not let go from employment. Tr. 77. Riordan also identified Raymond Slate 

as another employee who complained about the lugs issue and that there were others who 

complained besides those two. Id. Mark Jackson was one of the individuals to whom the bit lug 

issue was addressed. Id. Further, Riordan made complaints about this to Jackson, and in so doing 

continued to be a safety thorn for him. 

In the Court’s view, Respondent’s Counsel’s questions had a twofold purpose: to show 

that no one was fired for complaining about the lugs and that the miner was not run when the lug 

issue was present, with the latter point intended to show that there was no hazard present. The 

Court believes that those questions miss the point that Riordan’s safety-based complaint about 

the bit lugs was both legitimate and shared by others. The matter does tend to show that Knox 

Creek did not promptly address other safety concerns beyond ventilation. Having made those 

observations, this decision is not based on that subject. 

37 FMSHRC Page 1076
not “able to comply with [its] ventilation plan and [this was] creating . . . problems . . . about 

methane accumulation and dust . . . [with Mr. Riordan noting that] all of these things work 

together or are a byproduct of inadequate ventilation.” Tr. 36-37. Elaborating about his assertion 

that things were becoming progressively worse after 2012, Riordan stated that as the mine was 

developed deeper, the ventilation demands became greater and therefore the ventilation had to be 

increased to meet those higher demands. Tr. 37. By insufficiently addressing these issues, the 

result was the ventilation became weaker at the face. Id. 

Riordan stated that he spoke with Mark Jackson, the general mine foreman, about the 

inadequate face ventilation, but that the attempts to fix the problem were inadequate. For 

example, adjusting the air on one side of the section, so that it was in compliance with the 

ventilation plan, then adversely affected the other side of the section, so that it might not then be 

in compliance. Tr. 37-38. At this mine, described as a “super section,” there are two continuous 

miners operating, one on each side of the section. Employing two splits of air allows both 

continuous miners to operate at the same time. Tr. 53. Mr. Riordan’s point was that one side of 

the section or the other was continually not having adequate ventilation. This meant that the mine 

would have inadequate ventilation and mining would have to stop to address the problem of 

inadequate ventilation at the face. In Mr. Riordan’s words, addressing this ventilation issue with 

Mr. Jackson “was almost a daily conversation.” Tr. 39. 

 

Mr. Riordan asserted that Mr. Jackson “usually had a smart aleck comment about 

everything” Riordan raised with him. Tr. 41-42. Riordan also raised his safety issues with Mike 

Wright, who was aware of the problems, and they discussed what needed to be done. It was 

Riordan’s belief that Wright would discuss the problems with Scott Jessee directly. Tr. 42. Jessee 

was not always available to discuss the issues with Riordan, and again Riordan stated that 

Jackson would essentially put him off, either by telling him that they were working on it or by 

making a smart aleck remark to him. Id.

Riordan also recalled another informative incident involving ventilation issues with Mr. 

Jackson, in addition to Jackson’s alleged remark4

 about being thrown under the bus by Riordan. 

It involved some ventilation problems with the No. 3 section and Riordan inquired of Jackson if 

air readings had been taken there. Tr. 55. Jackson, according to Riordan, responded that he was 

at that location all day the day before and that they had good air. Id. Riordan persisted and asked 

if air readings had been taken, to which Jackson reportedly told him he could tell if there was 

adequate air by simply slapping the dust off his jacket to determine if there was 2,000 cfm 

behind the curtain. Id. Riordan could not be specific about the date of that incident, but believed 

it occurred prior to the picnic. Tr. 56. Riordan retorted that he would advise the mine inspector 

that there was no need for an anemometer to measure the air, as he could simply slap the dust off 

his jacket for an air reading. Id. The Court finds that this event also occurred, per Mr. Riordan’s 

recounting of the exchange. 

 

On cross-examination, Riordan agreed that in 2013 he sometimes worked as a section 

foreman and at other times as an outby foreman. Tr. 57. His ventilation issues, he agreed, 

primarily pertained to his work as a section foreman. Id. Near the time he was discharged, more 

 4

 To be clear, the Court finds as a fact that Mr. Jackson did make the remark about being 

thrown under the bus by Riordan. 

37 FMSHRC Page 1077
of his work then was doing outby work. Id. However, he went back and forth between those two 

duties, as assigned. Tr. 58. Riordan also agreed that both as an outby and a section foreman, he 

did on-shift and pre-shift exams. Id. Those exams can only be done by a licensed and certified 

state foreman. Id. Riordan acknowledged that he is required to report hazards and violations that 

do not meet the mine’s ventilation plan. Tr. 58-59. Asked whether he is required to report 

ventilation readings that are not up to the plan, he replied that those may or may not be a 

violation and that they may or may not be a hazard. Tr. 59. Explaining further, he added that if 

there is no methane present or ignition source, then there is no hazard, though it may be a plan 

violation. Tr. 59. As to whether such violations are to be reported, Riordan advised, “Yes, now 

we are.” Id.

Riordan affirmed that his complaints about ventilation were primarily made to Mark 

Jackson and that they were all verbal. Tr. 60. While he made some notes about air readings or 

conditions that he found on the section, he did not retain them. Tr. 60-61. Respondent’s Counsel 

asked with disbelief about Riordan’s assertion that he would not have kept the notes, but Mr. 

Riordan explained, credibly in the Court’s view, that he did not expect to be involved with 

litigation down the road. Tr. 61. Riordan agreed that he probably did not record inadequate 

airflow readings during 2013, but maintained that he would note if a curtain was down and that if 

he found inadequate airflow, he would correct the problem. Tr. 63. Various measures were used 

to deal with such problems including reworking a curtain, regulating air on the returns, or 

regulating belt air. Tr. 64. Typically, fixing such problems would take much longer than five or 

ten minutes. Id.

In the Court’s estimation, Respondent’s Counsel, by his cross-examination of Mr. 

Riordan on these subjects, was trying to establish either that the Complainant was negligent in 

not recording ventilation problems in completing his on-shift or pre-shift exams, or that the 

problems were actually negligible, thereby undercutting the essence of his claim that he was 

discharged for making safety complaints. This line of questioning misses the central point, 

because it is undisputed that the Complainant did make safety complaints about the mine’s 

ventilation to several management officials at the mine, including its chief officer. The real 

question is the legitimacy of the rating system as applied and whether it was manipulated in the 

case of the Complainant to obtain an adverse result because of Mark Jackson, who was the 

person identified as ignoring the ventilation issues and who therefore was very displeased with 

the Complainant making an issue over it to the mine president. 

Mr. Riordan steadfastly, and quite credibly in the Court’s estimation, maintained that 

there were no ventilation violations while he was present during production and that if one 

developed while they were producing, they would stop production and fix the issue before 

resuming. Tr. 66-67. As another example of Respondent’s Counsel missing the key point, 

Riordan agreed that management did make attempts to correct the ventilation deficiencies during 

2013. Tr. 67. In fact, Riordan acknowledged that the mine made “quite a number of changes” to 

change the ventilation. Tr. 67, 68-73. Indeed, that was not his issue, nor the issue before the 

Court. The issue is whether Riordan was discriminated against for making the safety complaints, 

which specifically came to rest on Mr. Jackson’s doorstep, and about which Mr. Jackson took 

umbrage. While the discrimination was not so clumsily or inartfully done so as to leave 

37 FMSHRC Page 1078
Jackson’s fingerprints on some overt act, it is clear enough from the record testimony that, 

circumstantially, he was the force behind Mr. Riordan’s discharge. 

On a different topic, Riordan stated that he had knowledge of about 20 ventilation 

citations being issued during 2013 at the mine. Tr. 96. Many of them were in the area where 

Riordan was working, a fact he learned from MSHA’s website, which lists all the citations it 

issued for the mine. Tr. 96-97. In fact, some of those citations were served upon Riordan when 

he was traveling with the MSHA inspector and also when he was a section foreman. Tr. 97. 

Dave Smith, a special investigator for MSHA out of its Norton, Virginia, office, was also 

called as a witness. Tr. 103. He was the investigator assigned to Mr. Riordan’s discrimination 

complaint. As part of his investigation into the complaint, Smith found between 20 to 30 

ventilation violations in 2013 at this mine, Knox Creek’s Tiller No. 1. Tr. 104. Those findings 

also serve to support Mr. Riordan’s allegations that the mine had ventilation issues. Tr. 104; 

Gov’t Ex. 2 (Knox Creek’s ventilation violation history). All of the violations were Section 300 

violations, although not all of those pertained to airflow. Tr. 109. While the Respondent made 

the contention during cross-examination that all of the airflow violations were abated within 30 

minutes, the Court notes that it was Mr. Riordan’s unrebutted testimony that fixing one area 

often created a new problem on the other side of the section. Tr. 34-35. 

As noted above, there is no serious dispute that Knox Creek’s Tiller No. 1 was having 

significant and chronic ventilation problems and the testimony of Respondent’s own witnesses 

demonstrates this. In this regard, it is noted that mine president Ron Patrick did acknowledge 

there being ventilation issues at the mine in 2013 and that these issues were present before the 

picnic. However, Mr. Patrick described the issue as a small one: “The concern I had was one 

section had more volume of air than the other and never was we [sic] below the standard MSHA 

requirements or the State requirement, never were even close.” Tr. 139. Patrick, doing little more 

than concurring with his attorney’s descriptions,5

 agreed that he “would have liked to have had 

more air,” but he stated that they had 65,000 but wanted 80,000 on the section. Id. The problem, 

according to Patrick, was being addressed, both under a short-term and a long-term plan. Tr. 140. 

For such a small problem, that is, a problem which Mr. Patrick described as one that did 

not come even close to not meeting the federal or state requirements, the mine was doing quite a 

bit. His testimony reveals this to be the case: 

The short-term plan we started on immediately. I had a spray machine brought 

from one of the other operations within DR [Dickenson-Russell Coal Company] 

to the Tiller coal mine. 

 5

 On direct examination, Respondent’s attorney habitually questioned his witnesses in a 

manner that required little more from them than to assent. Objections to the more-than-leading 

questions were infrequent and the Court did not intercede on its own, but that did not prevent the 

Court from discounting the ersatz testimony that was offered by the witnesses in their diminished 

role. Thus, apart from the Court’s independent determinations that the credibility of many of the 

Respondent’s witnesses was poor, the words that those witnesses did offer, essentially agreement 

with assertions by Respondent’s counsel, carry less weight for that additional reason as well. 

37 FMSHRC Page 1079
Scott [Jessee] and I had a discussion that we short term would start plastering the 

brattices to better seal them to eliminate any leakage that would get us more 

volume of air to that one what we called No. 2 Section. 

The long-term plan was on the No. 2 Section [where] we had a super section. That 

was two [continuous] miners, two roof bolters, four shuttle cars. 

Our plan then was to take that miner, half of that equipment, one miner, one roof 

bolter, two shuttle cars take that and half of the crew two miles outby, two miles 

from that section and start a new construction section that would improve the 

restrictions in the airways, and those restrictions were at the time when the coal 

mine -- the main line was developed, they hit adverse conditions, low to zero coal. 

It also had about a 12-foot separation in the coal. In other words, the seam split. 

Part of it was up here, some of it down there and very adverse roof conditions. 

To develop the main line through there whenever they drove that main line, they 

narrowed down the [entries] that they took through there, and I’m sure it was due 

to economics, and that forced a restriction through that area. 

So long term we chose to take half of that section equipment down there in 

adverse conditions, poor roof, little to no coal and develop entries through there to 

relieve that restriction. 

Tr. 140-41. 

That process was, again as effectively answered through the question presented by 

Respondent’s counsel, “already planned and under way before this picnic in 2013.” Tr. 141. 

Patrick affirmed the description offered. Id. Also, Patrick, responding to the suggestion, affirmed 

that the mine built overcasts. Id. He described that as part of the “short term” solution, calling it 

“quick relief.” Id. The mine “added an overcast along with plastering those brattices. That was a 

short-term fix, but the long-term fix was going to take six to eight months to develop those 

entries.” Tr. 142. Patrick also agreed that during 2013 he regularly spoke with Mike Wright 

about the fact that one section was getting more air than the other and that he also spoke 

regularly with Mr. Jessee about the balancing of airflow. Tr. 160. 

In sum, the Court makes two observations about this testimony. First, this was not quite 

the small problem that Patrick characterized it to be, not by a long shot. Second, the detail about 

it and all that they were planning to address the issue, makes it highly unlikely that Patrick would 

not be able to recall if the ventilation issue was discussed at the picnic. That, among other 

responses from Mr. Patrick, led the Court to conclude that his credibility was poor. 

Scott Jessee is the superintendent at the Tiller No. 1 Mine, a position he has held for 

about a decade. Tr. 197. His boss is the aforementioned Ron Patrick. Tr. 198. His principal 

subordinate is Mark Jackson, who is the general mine foreman. Id. Mr. Riordan testified about 

his relationship with Jessee. While he had a good relationship with Jessee initially, around 2013 

37 FMSHRC Page 1080
that cooled, as Jessee was less open with him than before. Tr. 33. Riordan had been evaluated by 

Jessee before 2013. Tr. 34. In 2013, in connection with bonuses earned for the prior year, 

Riordan received a very good evaluation and in that same year, Riordan never received any 

counseling (i.e., counseling reflecting that there was a problem with the job he was doing) about 

his performance as a foreman from Mr. Jessee. Tr. 35. Riordan affirmed that he discussed 

ventilation problems with Jessee. Tr. 53. When asked if the ventilation problems he raised with 

Jessee were addressed by him, Riordan advised they were not and Riordan was also sure that 

there were some ventilation issues raised with Mr. Jessee prior to August 2013. Tr. 53-54. 

In his testimony, Mr. Jessee acknowledged that Mr. Riordan brought up the subject of 

safety issues with him. Jessee also admitted that Riordan did speak with him about problems 

with balancing air on the section and that this issue was raised with him during August and 

September 2013. Tr. 233. In that regard, Jessee also conceded that they “talked about ventilation. 

We talked about roof control, stuff like that.” Tr. 207. However, he did not consider those to be 

complaints, describing them instead as “just everyday issues [which were the same as those] 

discussed with other foremen.” Id. These topics, to which Jessee agreed, but which were not 

expressed in his own words, were in Respondent’s Counsel’s words, “a part of their job” to 

discuss anything that was going on underground. Id. Jessee, again playing the role of one who 

agreed with characterizations from Knox Creek’s Attorney, as opposed to testifying about 

subjects, affirmed that Riordan was no different than any of the other foremen. That is, Riordan 

didn’t complain or talk about such issues any more than any of the other foremen. Tr. 208. Jessee 

believed that he was doing a good job with the ventilation at the Tiller mine in 2013. Tr. 236. 

 Regarding the issue of the mine’s problem with ventilation, Respondent’s Counsel asked 

if the two super sections were first started in 2013. Jessee agreed and added that was in early 

2013. Tr. 208. Benignly characterizing the problem, Counsel for Respondent asked if the super 

section “creat[ed] somewhat of a different pattern of airflows around the face. . . . [and that it 

was a different pattern] than what people had been used to.” Id. Jessee again agreed. Tr. 208. 

Jessee agreed that this is called “split air.” Tr. 209. However, once again in the posture of one 

who was a “witness who would agree” with assertions from the Respondent’s attorney, Jessee 

affirmed that there was adequate ventilation in all places in the mine and that the air at all times 

met the ventilation plan. Id. Continuing his role as an affirmer of questions, he then agreed that 

the ventilation issue required “more attention and maybe more work,” as Counsel put it, than 

before the super section was started. Id. Despite his rosy affirmations to the statements from his 

attorney, technically presented in the form of questions, Jessee next affirmed that the mine did 

get some “violations in 2013 concerning airflow,” but that they were all abated through simple 

means by tightening a curtain or a fly. Id. That line of questioning ended with the point that it 

was the section foreman’s job to tighten the curtain or fly. Tr. 209-10. Although this was 

obviously an attempt to suggest that it was up to Riordan to address the problem, it is, in the 

Court’s estimation, also misleading because it infers that Riordan was the source of the problem. 

However, the evidence was very clear that the ventilation problem was not a matter of any 

foreman’s lack of attention, and that it ran much deeper than that. 

For a host of reasons, the Court did not find Mr. Jessee’s testimony to be credible overall. 

Jessee agreed that he has been the superintendent at the mine for 10 years. Tr. 242. Over those 

ten years he had not ever filled out another employee evaluation form. Tr. 243. Yet, Jessee 

37 FMSHRC Page 1081
affirmed, incredibly in the Court’s view, that he had no curiosity or questions about being faced 

with this evaluation form, his first in ten years. Tr. 244. Jessee also affirmed that Mr. Jackson 

told him that he had trouble getting Riordan to go underground and trouble getting him to start 

work. Id. Asked when these problems arose, Jessee stated it was “around March.” Id. The Court 

then asked if such problems would not constitute an offense and that such individuals would be 

written up. Jessee responded that Jackson spoke with Riordan about it. Id. As to the number of 

times these issues were raised, Jessee informed that, for both asserted problems, the verbal 

discussion with Riordan over these matters happened once, not several times. Tr. 245. Surprised, 

the Court inquired whether Jackson thought it was important enough, based on one time, to bring 

it to Jessee’s attention. Tr. 245. Jessee affirmed that such was the case, adding that “it must have 

been important to [Jackson] so he brought it to my attention.” Id. 

 The Court then turned to Mr. Jessee’s assertion that Riordan had a deficiency in terms of 

his ability to lead as a foreman, which Jessee repeated. Tr. 246. Asked for a concrete example of 

this, Jessee stated, 

Okay. Say for instance when you go up there and you need to loop your curtain a 

little bit tighter to get your air up in the place and stuff like that, in your ability to 

lead as a foreman you have to tell your guys, hey, let’s tighten this curtain up, so 

we can get air up there in the place. 

Tr. 246-47. Jessee affirmed that he personally knew that Riordan failed to tell his employees to 

tighten up a curtain. Tr. 247. When asked if he was written up for that, Jessee advised that “[h]e 

was talked to.” Id. Asked how many times Riordan failed to tighten up a curtain, Jessee stated, 

“Two, I’d say.” Id. Inquiring further, Jessee stated that these two instances occurred “maybe four 

weeks apart” in 2013. Tr. 247-48. He could not recall the month this occurred. Tr. 248. Asked if 

the problem continued or stopped, Jessee stated that the problem did not continue. Id. Asked if 

that meant that Riordan’s deficiency to lead as a foreman was no longer an issue, Jessee stated 

“Yes.” Id. (emphasis added). 

 Another assertion of Jessee was Riordan’s failure to go above and beyond. An example 

of this was asked to be provided by Jessee to the Court, who responded, 

Say for instance we’re cutting our first section move. Okay, you’ve cut it out. You 

squared your faces off, and you need to go ahead and start on your -- the next 

phase of it is moving your equipment or getting a stopping built down there, to go 

ahead and get your equipment moved. [Riordan] wouldn’t go to the next step to 

go ahead and do that without some pushing like or saying, hey let’s go ahead and 

get this done, next phase. 

Tr. 249. The Court asked if Jessee remembered that Riordan failed to do that and Jessee affirmed 

he did so remember. Id. This event, Jessee stated, was around March 2013 when they had just cut 

out on the 3 Section and were getting ready for pillars. Id. Jessee stated that he personally 

observed this. Id. This occurred on one occasion. Tr. 250. To be sure about his testimony, the 

Court asked, “So your complaint about Mr. Riordan’s inability to go above and beyond is limited 

to one occasion?” Id. (emphasis added). “Yes, sir,” Jessee affirmed the Court’s understanding. 

37 FMSHRC Page 1082
Id. In response, the Court, which was astounded that Jessee’s criticism was over an alleged single 

event, remarked, “Well, you have very high standards.” Tr. 250. 

 Further, Jessee affirmed that he has never specifically stated that Riordan was his most 

unsafe foreman. Tr. 252. In attempting to show the alleged problem with getting Riordan to go 

underground, Jessee advised that in fact it occurred only once and, as to whether on that one

occasion Jackson told him that the problem happened more than one time, Jessee did not aid 

Knox Creek’s attorney, as he could only offer, despite being asked twice, that he did not recall. 

Tr. 253. 

 Complainant’s Attorney, Mr. Addington, followed up on the issue of the statement that a 

verbal warning was made to Riordan. In that asserted instance, Jessee stated that Mark Jackson 

allegedly spoke to Riordan.6

 Tr. 254. However, when asked if verbal warnings are memorialized 

on paper, Jessee stated that “No, not all of them [are written down].” Id. Some verbal warnings, 

however, are written down. Id. Jessee was unaware that either of the claimed verbal warnings to 

Riordan were ever written down. Tr. 255. 

 Respondent also called Mark Jackson, who is currently the general mine foreman at Knox 

Creek. Tr. 276. At the time of Riordan’s termination, Mr. Jackson was his immediate supervisor. 

Id. Jackson stated that in 2013 Riordan was a section foreman and worked outby, too. Tr. 277. 

As mentioned, near the end of his employment with Knox Creek, Riordan was doing more outby 

work. Tr. 278. Earlier in 2013, Riordan had been working on the section frequently and he and 

Riordan had discussions about ventilation in 2013. Id. In terms of those discussions, Jackson 

described it as “[j]ust every day concerns of balancing the air and stuff.” Id. These were 

discussed, with Respondent’s Counsel again providing the words through his questions, by 

asking if Jackson “discuss[ed] these things [with the other mine foremen] generally the same 

way that [he] discussed them with Mr. Riordan.” Tr. 278-79. Jackson responded, “The same 

way.” Tr. 279. Asked how many times Riordan discussed the ventilation balance issue in 2013, 

Jackson answered, “a couple of times.” Id. Respondent’s attorney then asked, “A couple being 

two?” Id. Jackson answered, “Yes.” Id. 

Finally, an objection was made to the leading questions. Tr. 280. Jackson then described 

the substance of the talk with others as “[j]ust where we went to split air the changes in the 

difference it makes, make sure we had our curtains hung and stuff like that.” Id. The split air, 

Jackson said, made it so that the foremen “had to direct the air, and they ha[d] to hang their 

curtains better.” Id. Jackson said the he was “replastering stoppings,” too, in addressing 

ventilation in 2013. Tr. 281. Then, in response to whether a new section was then being 

developed, he answered, “Yes, we were also driving another set of mains up through there so we 

could help the mine breathe.” Id. The mining conditions in those mains, he said, were “[v]ery 

bad.” Id. The mains, he agreed, were driven only for the purpose of helping with the ventilation. 

Id. Then, upon further questioning, he answered that they built overcasts and that those also 

helped with ventilation. Id. Thus, in the Court’s estimation, Jackson, though initially describing 

the ventilation as a minimal problem, then answered the questions in a way that showed that it 

 6 The transcript states that “Mark Jessee talked to him” but it is presumed by the Court 

that Mark Jackson was the intended reference and that Mr. Jessee either misspoke or the 

transcript incorrectly listed Jessee. 

37 FMSHRC Page 1083
was a more significant issue. Everything they were doing, Jackson stated, was helping to get 

“more air to the section.” Tr. 282. Jackson maintained that during safety meetings, Riordan 

spoke up about safety issues the same as the others and that, when asked, “[d]id he even talk 

about ventilation at those meetings as far as [he could] recall,” Jackson answered, “not that I 

remember.” Tr. 282 (emphasis added). 

Jackson could not say whether the number of times Riordan raised ventilation issues with 

him was two or three times, nor could he remember when those discussions occurred, nor even 

the season of the year. Tr. 302-03. Further, incredibly, and in contradiction to the substance of 

his own testimony, Jackson was of the view that there were not ventilation issues at the mine in 

2013. Tr. 302. 

Mr. Jackson denied that he ever made a statement that Riordan tried to throw him under 

the bus or any words to that effect. Tr. 285-86. He stated that he was Riordan’s direct supervisor 

for “[p]robably about four or five years.” Tr. 286. Overall, he characterized Complainant’s 

performance during that time as “Poor.” Id. Asked the basis for that characterization, Jackson 

answered, 

He was -- when you go up on the section, he would not be up there with the men 

where they was mining. He would be outby down there at the feeder or around the 

shuttle cars. And I’d have to go up there, and the curtains wouldn’t be hung real 

good. They’d be hung but the ends wouldn’t be nailed up and stuff, and I’d go get 

him and talk to him about it and stuff. 

Id. As for the alleged number of times Jackson had to raise the issues relating to hanging around 

the feeder and the curtains, during 2013, Jackson answered, “Two or three times, I think.” Tr. 

287. Jackson asserted that over the years of Riordan working for him, things got worse, “[t]he 

longer he worked, the worse he got.” Tr. 287. Jackson also maintained that he had nothing to do 

with Riordan being terminated, nor did he score or rate him in any way. Tr. 288. 

Jackson agreed that he spoke with Mr. Jessee a lot and that they discussed “[e]verything 

about the mines,” by which he meant “[j]ust the day in and day out running of it.” Tr. 289-90. He 

allowed that he discussed Riordan with Jessee “[o]n occasion.” Tr. 290. When asked how often 

he spoke with Jessee about Riordan in 2013, Jackson answered, “Probably a couple of times. 

Like I said, I don’t exactly remember.” Id. (emphasis added). As for the substance of those talks, 

Jackson stated, “When I’d go up on the section and find the curtains I would tell Jessee about it.” 

Tr. 290-91. As for any other discussions, Jackson replied, “That’s all I can remember.” Tr. 291. 

In the course of some 50 weeks in 2013, Jackson agreed that he would see Riordan three or four 

times per week and that, in sum, that amounted to seeing Riordan bossing hundreds of times. Id.

Yet, even with the “couple of times,” among hundreds of opportunities that he claimed speaking 

about this issue with Riordan concerning curtains, he never issued Riordan either a verbal or a 

written warning. Tr. 292-93. Further, while Jackson admitted that Riordan did discuss ventilation 

with him, he did not view those discussions as complaints. Tr. 294. This occurred two or three 

times in 2013. 

37 FMSHRC Page 1084
 In terms of when Jackson told Jessee that Riordan was a poor employee, he could not 

remember when he said that, nor could he recall if was before August 2013. Tr. 295. The Court 

then became involved, asking if it Jackson’s testimony that he told Jessee that Riordan was a 

poor employee one time only. He could not remember when that occurred. The Court then asked 

for a month and year, observing that, as it was one time, it must have stood out. Jackson 

answered, “I can’t remember exactly the date on it.” Tr. 296 (emphasis added). Jackson also 

could not remember whom he spoke with upon returning from a vacation on August 26, 2013, 

and that no one filled him in on what happened while he was gone. Tr. 297. His memory was 

better however on the subject of whether Riordan went inby pillars as he recalled seeing that 

occur. Tr. 297. That event happened on the first day Jackson returned to work. Tr. 298. In fact, 

Jackson was the one who brought Riordan outside after the alleged infraction occurred. Tr. 299. 

 

 Jackson agreed that he was present on the day Riordan was terminated, December 13, 

2013, and he was sure that the two of them talked that morning. Tr. 300. However, Jackson 

asserted that he had no idea that Riordan was going to be fired that day. Id. Further, he asserted 

that no one told him that one of his foremen was going to be fired that day. Id. This assertion 

included the claim that Jessee did not tell him that one of the foremen would be fired. Tr. 301. 

 In terms of his issue with Riordan not being up on the section bossing his men, Jackson 

was asked to be more precise than describing this as something which occurred a “couple” of 

times. He then stated that it was on two occasions. Tr. 303. Jackson confirmed that he never 

wrote Riordan up for those alleged transgressions. Id. As for Riordan’s record of training miners, 

Jackson stated that he couldn’t remember that Riordan did that. Tr. 304. 

 The Court then asked some questions of Mr. Jackson. Jackson confirmed that while he 

spoke with Riordan about his work as a section foreman, he never gave him a verbal warning. Tr. 

305. Instead, he just “talked to him.” Id. He then stated that was probably the same as a verbal 

warning but that it was not written. Id. Jackson then agreed that, as part of his duties as the 

general mine foreman, it was part of his responsibility to note any serious failure on the part of 

one of his foremen and further agreed that he never made any such notation regarding failures by 

Riordan. Id. When the Court asked if the next logical step was a fair conclusion — that because 

Jackson didn’t note anything, that none of the things that he brought to Riordan’s attention were 

considered by him to be serious, because, as he admitted, he wrote down serious matters — 

Jackson would not agree, stating “[n]o, they was serious. I mean maybe I should have wrote it 

down.” Tr. 306. Jackson then agreed that sometimes he writes down serious violations and 

sometimes he does not. Id. However, he conceded that it is company policy, that is, the company 

handbook provides that all verbal warnings are then to be noted in writing. Tr. 309. 

As noted, the Court found Mr. Jackson’s credibility to be seriously wanting. 

The Mine Picnic

As mentioned earlier, a mine picnic occurred during the summer of 2013 on August 

22nd. Tr. 160. The picnic was a social event, and on this occasion it was prompted in part by the 

mine not having a lost time accident in the past year. Tr. 43. According to Mr. Riordan’s 

testimony, Mr. Patrick would give a speech at these periodic social gatherings, but 

37 FMSHRC Page 1085
communication was also an objective of those events. Id. During the summer of 2013 event, Mr. 

Patrick, asked in the presence of Mr. Riordan, Mr. Les Blankenship, and several others who had 

gathered in the lamp house, how things were going. Id. It was Mr. Blankenship who then first 

brought up the inadequate air on the section, and the others then joined in discussing that topic. 

Id. The participants made specific suggestions about how to address the problem. Riordan 

himself suggested that overcasts be constructed.7 Tr. 44. The roof had been developed to have 

overcasts, but they had never been built. Id. Mr. Patrick, it can be said, had a positive response to 

the concerns expressed and stated that if overcasts needed to be built, that would happen. Id. 

According to Mr. Riordan’s credible testimony, it was his comments about the mine’s 

ventilation problems to Mr. Patrick at the picnic that caused Mark Jackson to become upset with 

him. Tr. 45. As noted, Riordan was part of that conversation with Patrick along with Les 

Blankenship. Tr. 81. Riordan related that he offered specific steps to Patrick about how to deal 

with the ventilation problem. Tr. 83-84. Riordan agreed that Patrick did not balk at the 

suggestions, nor suggest that he would not consider them, Tr. 84, but to note that Patrick did not 

react poorly to his comments, again misses the point in this discrimination proceeding, that it 

was Jackson who resented Mr. Riordan’s candor with the boss. Riordan reaffirmed that 

Jackson’s hostile remark to him occurred either the day after the picnic or near to that time, when 

they came into contact with one another. Tr. 85. 

 Mine president Patrick did acknowledge ventilation issues at the mine in 2013 and that 

these issues were present before the picnic. Tr. 139. Given that, the Court considered it highly 

unusual that Mr. Patrick would not recall the discussion, which is central to this case, about the 

ventilation at the picnic. This was another factor in the Court’s finding that Patrick was not 

credible. 

Regarding that picnic event in August 2013, Patrick estimated that he arrived in the midafternoon. Tr. 137. He talked with attendees but could not recall if Mark Jackson was present for 

the event. Id. He could not recall if he spoke with Mr. Riordan at that event, although he 

admitted that he could have. Tr. 138. Further, as to whether Les Blankenship and Mr. Riordan 

spoke with him, Mr. Patrick could only offer: “They could have but I do not recall that.” Tr. 138 

(emphasis added). The Court then offered, “So you don’t deny it. You just don’t remember 

whether there was a conversation.” Id. Mr. Patrick responded, “No, sir, I do not deny it.” Tr. 138. 

However, Mr. Patrick did recall, when his attorney asked, “So, Mr. Patrick, did you talk to Mr. 

Jessee about anything that happened there that day at that I’ll call it a picnic?” Id. His answer 

was “No, sir.” Tr. 139. In the Court’s assessment, Mr. Patrick’s memory seemed to be selectively 

good and poor. The Court considered that most of Patrick’s responses were not credible. Of no 

surprise, when asked on direct if “Riordan’s employment [was] terminated because of any safety 

complaint by him,” he responded “[a]bsolutely not.” Tr. 143. 

 The next work day following the picnic, Mr. Riordan immediately was faced with a 

change in attitude from Mr. Jackson towards him. As he was preparing to go underground that 

next day, Mark Jackson told him that he “had thrown him under the bus by discussing th[ose] 

 7 Mr. Riordan continued to make complaints about inadequate ventilation after the picnic 

incident. Tr. 48. These complaints were made to Mark Jackson, primarily, but were also 

discussed with Mike Wright on a regular basis. Id. 

37 FMSHRC Page 1086
[ventilation] problems with Mr. Patrick.” Tr. 45. Again, as noted, the Court has found that 

Jackson made such a remark to Mr. Riordan. Riordan, reasonably in the Court’s view, took 

Jackson’s remark to mean that he, Jackson, was angry at Riordan for mentioning the ventilation 

issue with Mr. Patrick. Tr. 45. As Jackson was not present when the ventilation issue was 

discussed the previous day with Mr. Patrick at the picnic, Riordan could not know if Mr. Patrick 

spoke to Jackson about the matter, but clearly Jackson learned of Riordan’s words to Patrick. Tr. 

45. Riordan’s relationship with Jackson, which was declining before the picnic incident, 

continued to go downhill after that event. Tr. 46. 

 As noted, in August 2013, Riordan received a written warning. Id. This occurred right 

after the 2013 picnic. Id. Scott Jessee came to the section where Riordan was working and 

believed that Riordan was inby the pillar line and therefore under unsupported roof. Tr. 47. 

Riordan did not agree, believing that he was actually in a bleeder entry, but the upshot was that 

Mr. Riordan “received three days off and a written warning.” Id. That warning was issued by 

Mark Jackson. Tr. 47-48. Much later in the testimony, replacing indefinite statements about the 

date of the company picnic, it was revealed that the picnic occurred on August 22, 2013, which 

was a Thursday. Tr. 262-63. It is undisputed that Mr. Jackson was on vacation, returning to work 

on Monday, August 26, 2013. Id. The Court cannot simply ignore the “coincidence” in time 

between Riordan’s critical remarks about the mine’s ventilation issues and his alleged infraction, 

occurring the first day Jackson was back on the job. Nor, it should be noted, did Respondent 

present any other such infractions as part of Mr. Riordan’s work history at the mine. The 

inference that this was the first reaction of displeasure over Mr. Riordan’s frankness about the 

mine’s ventilation problems cannot be ignored. 

The Mine Employee Evaluation “System” 

Background – Prelude to the Layoffs 

 As noted, Ronnie Patrick is the general manager for Dickenson-Russell Coal Company 

(“DR”) and the Knox Creek Coal Company. DR consists of three deep mines and two prep 

plants, one active and one inactive. Tr. 117-18. Knox Creek Coal, a subsidiary of Alpha Natural 

Resources, Inc., has one deep mine, Tiller No. 1, a prep plant, and a refuge area. Tr. 118. Knox 

Creek, DR, and Paramont8

 Coal are all subsidiaries of Alpha Natural Resources. Tr. 128-29, 174. 

In 2013 DR’s Roaring Fork and Laurel Mountain mines closed. Tr. 118-19. Remaining open 

were the Cherokee and Tiller mines. Forty employees at Roaring Fork and ninety-three at Laurel 

Mountain lost their jobs in connection with those closings. Tr. 121. Mr. Patrick asserted that with 

those mines’ closures, it was their goal to “see that the best of the foremen, in particular the best 

of those foremen were retained and held positions within the existing coal mines as much as 

practicable.” Tr. 122. Attempts were subsequently made to rehabilitate Patrick’s first remarks 

that the efforts to find employment for displaced workers applied to both closed mines. See, e.g., 

Tr. 186. In that regard, the Respondent expended much energy trying to show that the efforts 

were focused on the first group to become unemployed, the approximately 40 employees at 

Roaring Fork, but not for the larger number of displaced employees, the 93 miners at Laurel 

Mountain. See Tr. 186-87, 331-32. About one-third of the displaced workers from both mines 

were given jobs within Alpha. Tr. 122. 

 8

 The hearing transcript incorrectly spells Paramont as “Paramount” throughout. 

37 FMSHRC Page 1087
Patrick stated that the first wave of layoffs was with Roaring Fork and the second was 

with Laurel Mountain. Tr. 190. Patrick agreed that the scoring system was in place at the time of 

the layoffs at Roaring Fork, and that the same scoring system was in place when the Laurel 

Mountain layoffs subsequently occurred. Tr. 190-91. The Court inquired if Patrick reached out to 

Paramont Coal twice. Tr. 191. Patrick stated that he recalled asking Paramont if there were any 

jobs for the Roaring Fork people, but when asked if he similarly reached out for the Laurel 

Mountain layoff, he stated, “I don’t recall. I don’t recall that as -- me specifically, no, sir, I did 

not.” Id. (emphasis added). This struck the Court as peculiar, as Patrick recalled the effort made 

with regard to the first layoff, but not for the more recent layoff. See id. Odder still, Patrick stated 

that 40 employees were affected by the Roaring Fork layoff, and then agreed that something on 

order of 93 employees were impacted by the Laurel Mountain layoff. Tr. 192. Summing up his 

testimony on this, the Court asked if it was correct that he remembered reaching out for the 40 

employees but had no recollection about reaching out for the 93 at Laurel Mountain. Tr. 192-93. 

Patrick then answered, “I did not at Paramount [sic]. Whether HR did or not, I do not know.” Tr. 

193. 

The Evaluation System 

As framed by Respondent’s Counsel, Patrick agreed that there was “a system used to 

rank or rate the folks who were being -- losing the work at these two mines to try to determine 

who the better employees were.” Tr. 123. The evaluation “system” used a “standard form” and 

the four mine superintendents filled those forms out for the salaried employees. Id. All of those 

forms went into, again as described by Respondent’s attorney, “a central database” and the 

numbers were maintained by “HR [human resources] people.” Tr. 123-24. Christy Viers9

 did this 

9

 Ms. Christy Viers is the HR representative for the Knox Creek mine. Tr. 256. She 

learned of Mr. Riordan’s termination from Deidre Helbert, around December 12, 2012. Tr. 256-

57. Ms. Helbert is the manager of human resources for Dickenson-Russell Coal. Tr. 325. Viers

was present at the meeting when Riordan was terminated, and she had a packet of information 

that was presented to him at that time. Tr. 257-58. According to Viers, Riordan had questions 

about the severance package and other matters but, most pertinent, was Viers assertion that 

Riordan allegedly stated that “he knew this was coming to make room for other people.” Tr. 258. 

Ms. Viers stated that she received the employee evaluation scores from Mr. Jessee around 

August 9th. Tr. 260. Viers was also shown an email she sent to Ms. Helbert and Mr. Jackson 

after Riordan was terminated. That email stated that Riordan was informed about his termination 

and other aspects, but the email also included the remark, as just noted, that “[Riordan’s] only 

other comment was he knew this was coming, to make room for other people.” Tr. 261; Resp’t 

Ex. 4. Viers stated that she had a role in the input of the evaluation scores that she received from 

Mr. Jessee, stating that she entered all of them into the spreadsheet that they had set up. Tr. 265. 

Also, she typed in any comments Jessee had. Id. After she entered the scores, she then printed it, 

saving a copy and filing it. Id. During her deposition, Viers affirmed that Jessee gave her paper 

copies of his evaluations and that she still had those in her office. Tr. 267 (emphasis added). 

However, at the hearing she stated that she was mistaken in her deposition and that Jessee did not 

give her handwritten copies. Tr. 271. Rather, he entered the information on the computer, printed 

a copy and then sent it over. Tr. 268. Revisiting Ms. Viers’ deposition, at the hearing Viers stated 

(continued...) 

37 FMSHRC Page 1088
at Tiller, and Deidre Helbert did it at Dickenson-Russell. Tr. 124. The hierarchy for the 

underground mines consists of the section foreman, a maintenance foreman, a general mine 

foreman, and a superintendent. Tr. 125. As noted, Scott Jessee is the superintendent at Tiller, and 

9

 (...continued) 

then that Jessee “was to do those evaluations and get them back to [her] to be entered in the 

computer.” Tr. 270 (reading from page 13 of Viers’ deposition). When asked at her deposition, 

“How did [Jessee] how did he get the -- how did he get you the information?”, Viers answered, 

“He printed the forms out and wrote in his answers and I -- and he sent them back to me in an 

envelope.” Id. Viers was then asked, “Okay. Did he handwrite them?”, to which Viers 

responded, “I think so, yeah, these printed copies are what comes out after I enter the 

information that he puts on the form.” Id. She then reaffirmed, that Jessee handwrote the 

information. Tr. 271. Therefore, Viers contradicted her earlier testimony, now maintaining that 

the evaluations were not handwritten. Id. In terms of assessing Ms. Viers’ credibility, the Court 

did not view this change in her testimony favorably. 

Ms. Viers conceded that not only was Riordan’s job not eliminated, but that additional

people came to Knox Creek, including Dale Slemp; his brother, Steve Slemp; and Shawn Greer. 

Tr. 272. Further, Knox Creek hired a fire boss. Tr. 273. In terms of hiring and firing, Viers stated 

that she did not think that anyone was fired in 2014 and she agreed that the workforce is now 

larger than it was in December 2013. Tr. 269. 

Deidre Helbert, as stated, was the manager of human resources for Dickenson Russell 

Coal. Her testimony was of no impact to the findings by the Court, and is noted here only for the 

sake of completeness. It is the Court’s view that Ms. Helbert was called for damage control, 

because of testimony the day before from Ms. Viers which did not help the Respondent’s 

contentions. Helbert stated that Roaring Fork closed in October 2013 and Laurel Mountain 

closed on December 13, 2013. Tr. 327. She stated that Riordan’s loss of employment was in 

connection with the second closing, that of Laurel Mountain, not Roaring Fork. Tr. 331. When 

Roaring Fork closed, she stated there was an attempt to place people with another Alpha 

Company, called Paramont, and some people were placed as a result of those efforts. Id. Thus, 

Respondent’s Counsel, through this rehabilitative witness, was attempting to show that the only 

effort to find other jobs for displaced miners was with the mine closing that occurred first and 

that no similar efforts were made when Laurel Mountain closed. Tr. 332. 

Ms. Helbert was also used to support the alleged basis for keeping Donald Duncan, but 

not Mr. Riordan, which rested upon the ground that Duncan was a mine rescue team member for 

Dickenson-Russell Coal. Tr. 334-35. Ms. Helbert agreed that she made no decisions about which 

employees stay and which leave and that she simply follows the orders of others. Tr. 336. Ms. 

Helbert conceded that during her deposition she had stated that, in terms of retention, the 

evaluation score is the primary factor and dictates the outcome, unless there is a tie. Id. She also 

conceded that Mr. Patrick gave her a list of employees who were considered to be high 

performers and that those people were identified by the people at Cherokee, Laurel Mountain, 

and Roaring Fork as the people the mine would like to see placed in any vacancies that might 

exist. Tr. 337. She also agreed that the superintendents at the mines would have identified the 

high performers, and that Mr. Patrick would have given her a compiled list of the high 

performers. Id. 

37 FMSHRC Page 1089
he reported to Patrick. Tr. 125. Patrick did explain the process of job relocation as the decision 

making being made by himself and Mike Olsen, with Olsen being the superintendent at the 

Cherokee Mine. Tr. 126. Olsen is also the president of DR, and he reported to Patrick and to his, 

Patrick’s, HR person, Ms. Helbert. Id. Patrick and Helbert met with Olsen and Jessee. Id. They 

had a list of all the openings for salaried people, and “then [they] took the rankings of the 

foremen and tried to match them up to where [they] had the highest ranking foremen continuing 

in employment.” Id. Patrick stated that he “did not evaluate one person,” nor did he affect the 

scoring in any way, by telling, for example, any superintendent to mark up or mark down any 

individual. Tr. 127. Patrick noted that Dickenson-Russell’s operating budget restricts the number 

of employees it may have for its operations. Tr. 127-28. However, efforts were made to absorb as 

many employees as possible from the two mine closings. Tr. 128. Patrick was acquainted with 

Mr. Riordan, first coming to know him some two and half years ago when he, Patrick, was a 

general manager at Knox Creek. Tr. 129. 

Patrick stated that, in total, six (6) section foremen were not able to get placed from the 

closings. Dale Slemp, also referred to as Ricky D. Slemp, replaced Mr. Riordan at the Tiller 

Mine. Tr. 130, 194. Slemp was hired by Patrick. He had known Slemp for 10 or 11 years. Patrick 

described Slemp as a “very strong section foreman” for whom, again agreeing with Respondent’s 

Counsel’s description, he had a personal high regard. Tr. 131. Slemp, Patrick stated, again 

agreeing with the words offered by Respondent’s Counsel, “score[d] highly on this scoring 

system [Patrick] described.” Id. Using his own words, Patrick stated that Slemp “took a step 

backwards, demotion from general mine foreman and shift foreman down to section foreman, 

but that’s all I had for him.” Tr. 131. When asked, “But at least he maintained employment?” by 

his attorney, Patrick responded, “That was our goal.” Tr. 132. 

Patrick also acknowledged that Donald Duncan was a section foreman who received a 

lower score than Mr. Riordan, yet he did not lose his employment. Tr. 135. Duncan’s score was 

one (1) point lower than Riordan’s. Id. For reference, Mr. Slemp’s score was 61, Mr. Riordan 

scored 46, and Mr. Duncan had a 45. Id. According to Patrick, Duncan was retained because he 

was “a mine rescue member, and that [mine rescue] station was located at [DR’s] office, which is 

mandated through State and Federal that the facility be within an hour of reporting times.” Id.

Therefore, Patrick stated that the mine rescue site had to stay in place, intact. Id. In contrast, Mr. 

Riordan has not been trained to be a mine rescue member and has never participated in such 

activity. Tr. 136. It was Patrick’s position that if Duncan had not been retained, the mine rescue 

team would have been short of the required number of members and therefore he, in the words 

used by Respondent’s counsel, was treated as a “special case,” i.e., outside of the scoring 

system.10 Tr. 137. 

10 Counsel for the Secretary showed Mr. Patrick a spreadsheet produced by Knox Creek, 

apparently reflecting the scoring and notes for all the foremen that were evaluated. Tr. 150; see

Gov’t Ex. 3; Gov’t Ex. 4 (also Bates Stamped by Respondent as KCCC8). When the Knox Creek 

scoring compilation was presented to Mr. Patrick and his attention was directed to the comments 

regarding the “areas for improvement,” he stated that he had never seen those comments before. 

Tr. 155. Patrick maintained that he looked at the ranking and scoring only, not the comments. Tr. 

156. Nevertheless, it was then pointed out to Mr. Patrick that, despite stating he had not seen the 

comments before, there were comments, some positive and some negative, but that, for Mr. 

(continued...) 

37 FMSHRC Page 1090
 Patrick stated that he had no input into the evaluations that determined who was kept and 

who was not kept. He agreed that Mr. Riordan was the only management employee and foreman 

at the Tiller mine who was terminated in December 2013. Tr. 160. While Patrick conceded that 

he had the discretion to retain a lower-scoring foreman, he only did so in one instance, the 

Donald Duncan versus Charlie Riordan instance, with scores of 45 versus 46, respectively. Tr. 

161. Further, Patrick agreed that the work force at Knox Creek was not actually reduced in 2013. 

Tr. 162. Instead, replacement employees came over to Knox Creek. Id. Patrick also knew that 

Riordan did foreman training at the Tiller mine and he admitted that, since Mr. Riordan’s 

termination, they also hired more than one pre-shift or fire boss at Tiller mine too, agreeing that 

the mine needed to “hire additional folks.”11 Tr. 163. Further, during that time, in response to the 

question whether the Tiller Mine “hired a management position off the street during that time 

period,” Patrick responded, “Could have, yes, sir.” Tr. 163. (emphasis added). Beyond that, 

Patrick admitted that in 2014 at the Tiller mine it had management positions open there. These 

included more than one fire boss and possibly two section foreman positions in 2014. Tr. 163. 

Mr. Riordan was fired on December 13, 2013. Tr. 48. As he was preparing to enter the 

mine that day, Mr. Jackson asked him to wait, and then he was told that he was to go to the 

office. Tr. 49. There, he met Christy Viers, who informed him that he was being dismissed or 

discharged. She informed him of this in the presence of Scott Jessee. Id. Mr. Riordan could not 

recall his specific comment upon learning of the news, but may have made some comment that 

maybe he should have known.12 Id. Riordan stated that no other foremen were discharged that 

day and he was also unaware of any other foremen who were fired or terminated in December 

2013. Tr. 50. However, he did know that one other salaried employee was fired from the mine, 

10 (...continued) 

Duncan, there was no reference to his mine rescue qualifications in the comments. Tr. 156. 

When asked if the document at least reflected the information that human resources had in order 

to make its decision about who would be retained and who would be let go, Mr. Patrick again 

stated that all he had reviewed was the final scores. Id. It was his position that he left it to the 

mine superintendents to identify the best employees, but without explanation for their 

conclusions. Tr. 158. The Court concludes that, for this and other reasons in the record, the 

scoring evaluation system was followed or ignored, as convenient for the Respondent. Patrick’s 

own testimony supports this conclusion. 

11 Regarding new hires, Jessee’s statement was that the employees that were added were 

people that were already there, hourly people that were moved up to salaried positions. Tr. 237. 

In sum, when asked how many more salary people were at Tiller in 2014 than at the time that 

Riordan was terminated in December 2013, Jessee stated, “around three.” Id. The Court then 

inquired whether, when they promoted those people from the hourly jobs, they filled those 

hourly position openings that had been created. Tr. 238. Jessee affirmed those positions were in 

fact filled with new hires. Id. 

12 The Respondent later tried to make much of this, apparently attempting to demonstrate 

not just that Mr. Riordan made the remark, or something to that effect, but that Mr. Riordan 

knew his termination would be coming and that it was for legitimate reasons. See Knox Creek’s 

Post-Trial Memorandum 31 (“Resp’t Br.”). 

37 FMSHRC Page 1091
Tiller No. 1, as a result of the reduction in force. Id. Since those terminations, Riordan stated that 

he learned that the mine has added a number of other salaried people. Id.

 Speaking to the scoring system, which was allegedly used in determining whether he was 

to be retained or let go, Riordan informed that he only learned of that during the course of the 

depositions made in connection with this litigation. Tr. 51. Riordan subsequently learned that a 

miner at Laurel Mountain mine was retained, despite having a lower score under the mine’s 

scoring system. Id. It is not disputed that one employee, identified as “Employee No. 8,” 

received a lower score than Riordan but did not lose his job. Tr. 54. Mr. Riordan’s understanding 

was that the employee was a section foreman. Id. Riordan confirmed that it was his belief that he 

was discharged because of his safety complaints concerning the ventilation problems at the mine. 

Tr. 51. As noted, the Court agrees that Riordan’s job loss particularly came about because of Mr. 

Jackson’s animus towards Riordan for his remarks on that subject to mine president Ron Patrick 

and not because he was simply the “unfortunate” recipient of a lower evaluation score.

As yet another indication that the evaluation system was manipulated when needed to 

reach a desired outcome, Patrick himself agreed that the score reflected the total of all the 

categories, and that one of the categories was being a mine rescue team member, for which one 

point was assigned. In this regard, Patrick had one of his several attacks of “recall-itis”13: in this 

instance, his inability to recall a point already being awarded for being a mine rescue member. 

Tr. 167-68. When shown the employee evaluation form and that it allowed for one point for 

those on a mine rescue team, he then acknowledged, “that appears to be the case.” Tr. 168. 

 The Court then asked some questions of Mr. Patrick, who informed that Mr. Jessee was 

the one who evaluated Mr. Riordan. Tr. 169. Jessee, he stated, was the only one who determined 

the number of points to be assigned for each category. Id. When asked about particulars of the 

form, Patrick stated that he didn’t know if categories had point scales of 1 to 5, 1 to 10, or 

whatever. Tr. 170. He also did not know if there was any guidance on how to determine the 

number of points to be given for any category. Id. Patrick, even at the time of the hearing, did not 

know if there was any guidance for assigning points. Tr. 171. Beyond knowing that Jessee would 

put down a number for a given category, Patrick maintained that he knew nothing about how that 

number was derived. Id. 

 

Illuminating to the issue of Mr. Riordan’s claim of discrimination, as well as to 

Respondent’s claim that the evaluation system was neutral and fair, when asked if there was any 

other employee, aside from Mr. Riordan, who had a lower score that was kept over a person with 

a higher score, Patrick stated that Riordan was the only instance. Tr. 172. Patrick stated that 133 

were facing termination, but that not all of them were salaried people, and that only the salaried 

 13 “Recall-itis” is the Court’s term for when a witness whom one would expect to be able 

to recall certain events or conversations cannot do so, while still being able to recall other events 

of no greater, or even lesser, significance. It usually takes the form of a witness saying, in some 

fashion, that he can’t recall something, with the symptoms most often appearing when a question 

involves something the answer to which could be adverse to a party’s position. At times, as in 

the Court’s view of this case, the condition can spread like an epidemic to other witnesses. 

Having viewed the witnesses and the context in which the recall-itis symptoms arose, the Court 

has weighed these instances as part of its determinations about witnesses’ credibility. 

37 FMSHRC Page 1092
people were scored under the evaluation system. Tr. 173. Patrick agreed that he was concerned 

about all employees who were losing work and that he tried to reach out to other affiliates within 

the organization, one of which was Paramont. Tr. 174. Patrick stated that between salaried and 

employed people there were 35 to 40 people needing work and he agreed that he sent a list to 

Paramont with those peoples’ names on the list. Id. Patrick stated that this would have been done 

by Deidre, with the Human Resources Department. Tr. 175. But the Court inquired further. 

Patrick agreed that there would have been a list of names for Paramont to consider for work. Tr. 

176. Patrick agreed that he had to compile a list of names for this, but how this was 

accomplished or transmitted to HR, he could not recall. Id. Agreeing that there had to be a list of 

names compiled, he then stated that he did not create the list, but rather that HR did that. Tr. 177. 

Asked if Mr. Riordan’s name was on that list, Patrick again with his recall-itis affliction, stated, 

“I don’t recall.” Id. The Court inquired further about Mr. Patrick’s knowledge of Mr. Riordan 

being on such a list, as Patrick seemed to equivocate in his answer. Asked if he then recalled that 

Mr. Riordan’s name was on some list of employees needing work, Patrick answered, “No, sir.”14

Tr. 178. 

On the issue of points assigned for being on a mine rescue team, the Court expressed its 

understanding that the questions asked on that subject were intended to show that such 

membership on a mine rescue team was already built into the scoring. Tr. 180. Respondent’s 

Counsel was attempting to show that “[r]egardless of whether there was extra scoring for mine 

rescue on the score,” the mine could not operate without Mr. Duncan being employed. Tr. 182 

(emphasis added). The idea, conceded by Respondent’s Counsel, that there could be “extra 

scoring” demonstrates again the malleable nature of the evaluation system. Id. Respondent’s 

Counsel’s attempted point was that, even if Duncan’s score was 10 points lower, he had to be 

retained. Id. The Court then inquired if that made the point system “pointless” in that there were 

times when the mine would not apply its own point system. Id. Respondent’s Counsel contended 

that Knox Creek had “never said otherwise.” Tr. 183 (emphasis added). Thus, Knox Creek 

admitted that, depending on its needs, it could put aside its scoring system. 

 Mr. Jessee agreed that the scores given to Riordan in his evaluation were completely 

apart from his training activities and thus that he was scored on the basis of his skills and 

 14 Counsels for Riordan advised that they had not been provided with the list that Patrick 

stated had been created by HR. Tr. 177. The Court expressed that it would not have been 

burdensome for the Respondent to have provided the purported document sent to Paramont and 

that it would have helped Knox Creek’s case “immensely” had Mr. Riordan’s name appeared on 

it. Tr. 185. Respondent’s Counsel, in the Court’s estimation trying to thread the needle, then 

suggested that the list related to Roaring Fork job losses, and that Mr. Riordan only lost his job in 

connection with Laurel Mountain’s closing. Tr. 186. However, the Court responded that Mr. 

Patrick’s testimony suggested that the great effort to find employment applied to all displaced 

miners, and if Mr. Riordan’s name was missing from the list, that would be troublesome. Id. At 

odds with Mr. Patrick’s testimony, Counsel for Respondent asserted that the Respondent “did try 

to place what they perceived to be their better people.” Id. Respondent’s Counsel submitted that 

the testimony was only regarding reaching out to Paramont in connection with the earlier layoff 

at Roaring Fork and that Riordan lost his job in connection with the second layoff, at Laurel 

Mountain. Tr. 187. Obviously, Counsel’s characterization of testimony is not a substitute for the 

testimony received. 

37 FMSHRC Page 1093
performance as a foreman. Tr. 205. Yet, while mine rescue membership meant points would be 

awarded, and more if need be, safety training did not. 

The Court has found Mr. Jessee’s testimony, both at the hearing and in his deposition, to 

be incredible. In his September 19, 2014, deposition, Jessee stated he had no idea15 whose 

decision it was to terminate Mr. Riordan, even though he admitted to being the mine’s 

superintendent. Tr. 219. Jessee maintained that he was never told why he was to evaluate all of 

his employees. Id. In terms of entering the evaluations into the computer, he stated that no one 

from HR gave him any guidance about the purpose of the evaluations nor did he ask for any 

guidance about filling them out. Tr. 220. Jessee also maintained that in his discussions with Mr. 

Patrick, he never discussed the shutdown of Roaring Fork or Laurel Mountain and never 

discussed the possibility that any employees from those mines would be coming over to Knox 

Creek. Id. In fact, Jessee asserted that, even when Dale Slemp was at the mine, he had no idea

that Slemp was coming. Tr. 221. The Court found all of this to be incredible. Jessee maintained 

that his realm was safety, cost, and productivity and, in effect, it was his testimony that in terms 

of personnel he did not consider anything beyond the bottom line of the budgeted number of 

employees, neither inquiring, nor knowing, about anything beyond that. Tr. 220-21. These 

assertions, especially when consider as a whole, run counter to common human behavior. 

 Jessee also stated that, he could not recall ever giving an evaluation of Mr. Riordan 

before 2013. Tr. 221. He disputed as inaccurate Mr. Riordan’s claim that he, Jessee, had 

evaluated him prior to 2013. Tr. 222. However, when challenged if that meant that Mr. Riordan 

was being untruthful about that, Jessee reiterated that he was “saying I don’t recall.” Tr. 222 

(emphasis added). Asked how Alpha received the information that went into the performance 

evaluations which resulted in bonuses for all salaried employees, Jessee stated he had “no idea.” 

Tr. 223. 

 Jessee maintained that when he learned, around December 12, 2013, that Riordan would 

be terminated, he did not discuss that with Mark Jackson or with anyone else for that matter. Tr. 

224. Further, Jessee stated that he had no plan for who would be taking over Riordan’s shift and 

would wait until the next day to figure that out “on the fly.” Tr. 225. Yet, Jessee acknowledged 

that he spoke frequently with Mark Jackson “about different issues of the mining from day-to 

day.” Id. As discussed, he admitted that he spoke with Jackson about Riordan, stating that he had 

such a discussion in “Mid Spring of 2013.” Id. This conversation, Jessee stated, involved “some 

problems -- about getting [Riordan] -- when he worked on the outbys, getting him to go 

underground, start work and stuff like that.” Tr. 226. Jessee admitted that the workforce at Knox 

Creek is now larger than it was on December 13, 2013, and that the mine has more salaried 

people there now than back then. Id. He estimated that there was one additional hire plus the 

transfers from Cherokee mine, which shut down in March 2014. Tr. 227. 

 Directed to the comments section of the employee evaluation form, Resp’t Ex. 2, and 

particularly to the section addressing areas the employee needs to improve, Jessee read that it 

 15 “No idea-itis” is another condition closely related to “recall-itis.” The conditions seem 

to occur together. As with the latter, which focuses on an ability to remember something, the 

former appears in situations where one would expect a witness to have some information about a 

line of inquiry, yet the witness responds that he has “no idea” about the matter. 

37 FMSHRC Page 1094
stated “follow-up on jobs.” Tr. 228. In another area of the evaluation, it reflects Riordan “wants 

to work in the safety department.” Id. The same remark, that Riordan needs to follow-up on jobs, 

appears in Gov’t Ex. 3, which is the spreadsheet. Jessee agreed that in the section for 

improvements, only the one matter, the need to follow-up on jobs, was listed. Tr. 230. A 

discrepancy was noted, under the follow-up from field section, where the Secretary’s Exhibit 3 

states: “Disciplinary measures regarding red zone areas had to be instructed and reinstructed on 

work projects, needed to be completed. It does not take initiative to identify mine concerns so 

that down time can be minimized as well as potential violations minimized.” Gov’t Ex. 3. Mr. 

Jessee stated that he did not give that information. Tr. 231. He had no idea who would have 

given that information nor how the additional information about discipline got on the spreadsheet 

evaluation for Mr. Riordan. Tr. 234. Continuing with the theme that Riordan’s motive was to get 

out of the mine and become a full time safety trainer, Jessee stated that Riordan had back issues 

and that it made it hard for him to get around. Tr. 207. However, Jessee conceded that the 

evaluation made no reference to any physical limitations for Riordan including back issues. Tr. 

234. When asked if physical limitations would be important in evaluating one’s ability to 

perform a job, Jessee only allowed, “Yes, to a certain point I guess you could say.” Id. He then 

agreed that Riordan’s physical limitations were not important enough to include on the 

evaluation form, stating, “No, I guess not.” Id. Yet, Jessee admitted that he was the only person 

involved in the evaluation for Mr. Riordan. Tr. 232. Unsurprisingly, he had no idea where HR 

would have gotten that additional information which was added to Mr. Riordan’s evaluation. Id. 

The “Running Right” Category 

There was a “Running Right” category on the employee evaluation form. Tr. 235. Mr. 

Riordan agreed that he has filled out “Running Right” cards. Tr. 93. The cards afford an 

anonymous method for commenting on mine operations. Id. They can involve compliments or 

criticisms. Id. He estimated that, over a period of many years, he had filled out probably 

hundreds of such cards. Tr. 94. Specifically, when asked about his using such cards in 2013, 

Riordan stated that he submitted on the order of one hundred Running Right cards in that year, 

and quite a few of them dealt with the ventilation issues. Id. 

The typical practice was for the comments to be read during the safety meeting before 

each shift. Tr. 95. Again, consistent with the Court’s conclusion that he presented highly credible 

testimony, Mr. Riordan did not claim that the Running Right cards were connected with his loss 

of employment. In fact, the Court expressly noted on the record at the hearing of its evaluation of 

Mr. Riordan’s testimony as honest. Tr. 100-01. 

In contrast, when asked about the Running Right category on that form, Jessee at first 

denied that they were all safety-related. Tr. 235. He was then shown his deposition and asked if 

his answer was “Yes,” that they were all safety-related. Tr. 236. When asked if that was his 

answer at his deposition, a serious moment arose as the Court had to intercede, instructing Jessee 

that he was “not to look at [his] attorney” before answering. Id. Jessee then stated, “No, but I did 

send in a change form on that.” Id. The Court then continued, advising that it was instructing Mr. 

Jessee that he was “to answer questions either [by] looking at [the Court] or [at] the person that’s 

asking the questions. You are not to look out at counsel[’s] table.” Id. Jessee then resumed his 

testimony agreeing that was his testimony at the time of the deposition. Id. 

37 FMSHRC Page 1095
When asked if, in the Running Right category, among all the foremen Jessee evaluated, 

Riordan was rated the lowest, he ultimately agreed. Tr. 239. When asked why, with Riordan 

rated as the lowest foreman in the Running Right “safety evaluation topic,” he was the foreman 

used to train potential new foremen and new miner hires at the Tiller Mine, Jessee stated that 

they had no one else and he, Jessee, would have had to do the training. Tr. 240. As this was odd, 

Jessee then conceded that “[a]s a trainer . . .[he, Jessee,] didn’t have a problem with [Riordan] . . 

. with training and stuff . . . [the rating was not based on his training capabilities, it] was as a 

foreman.” Tr. 241. The problem, highlighted by Riordan’s Counsel Addington, was that while 

Riordan was rated as his least safe foreman,16 Jessee was still fine with having him train new 

miners. Id. As Riordan’s Counsel noted for emphasis, Jessee was “perfectly comfortable having 

what [he] considered to be, based on [the] evaluation forms, the least safe foreman at [Jessee’s 

Tiller] mine, do all the training for new foremen classes, and also new hires at the Tiller mine.” 

Tr. 242. Jessee responded, “Yes.” Id. On re-direct, Respondent’s attorney asked if Running Right 

was limited to safety issues. Tr. 251. Jessee responded that it included operation improvements. 

Id. 

Respondent’s Attempts to Undercut Mr. Riordan’s Discrimination Claim 

The Suggestion that Mr. Riordan Invented His Discrimination Claim 

 This assertion arises from the contention that Mr. Riordan knew he would be terminated 

upon learning of the closing of the sister mines and for that reason concocted his discrimination 

claim. It is the Court’s view that this assertion is an attempt to use legerdemain to distract from 

the proper analysis of a complaint of discrimination. The issue before the Court is whether 

Riordan was discriminated against as a result of making safety complaints. The Court has found 

that to be the case. Mr. Riordan’s statement, roughly to the effect that he knew his termination 

would be occurring, does not alter that conclusion for several reasons. This is because his 

statement is not material to the test to be applied in a discrimination action. To begin with, one 

must not lose sight of the fact that Mr. Riordan’s statement, even adopting the version 

Respondent urges, did not include the reason for his termination. Respondent’s version, which 

the Court does not adopt as verbatim in any event, requires an inference as to what Riordan 

meant by some form of those words. Respondent’s interpretation of the meaning would require 

mind reading. Further, even if, for the sake of argument, Mr. Riordan had expressly added that 

his termination was due to the closing of the other mines, that would not change Respondent’s 

culpability if the record established, as it has, that his termination under the evaluation system 

was corrupt as applied to him, as Respondent was motivated by his safety complaints. In short, 

the claim of discrimination and its defense cannot be established based on what Mr. Riordan may

have thought to be the reason for his termination on the day he was terminated, when the record 

shows that it stemmed from his safety complaints. 

 16 Respondent’s Counsel objected to the characterization that Knox Creek regarded 

Riordan as its least safe foreman. Tr. 241. The Court noted in that regard that Riordan received 

the lowest score for that category. Tr. 242. 

37 FMSHRC Page 1096
The Claim that Mr. Riordan Was One of the Mine’s Weaker Foremen 

 The chief contention in its defense is Respondent’s claim that Mr. Riordan would still be 

working were it not for the closing of the two sister mines. Apart from that, Respondent has, 

inaccurately and unfairly in the Court’s view, effectively characterized Mr. Riordan’s work 

performance as passable, while maintaining that he was still one of the weaker foremen it 

employed. Respondent has claimed that it was its evaluation system and Riordan’s low score 

under that system that resulted in his dismissal. 

However, through testimony during the hearing, the Respondent also attempted to 

insinuate that Riordan had other flaws and by implication that there were other reasons for his 

termination or that the flaws demonstrate the basis for his low score. Examples include Riordan’s 

allegedly walking inby a pillar line; that supervisors had to keep after him to do his job; that he 

had a bad back,17 suggesting that the condition both made him a weaker foreman and that the 

condition also prompted his desire to leave underground work for a less demanding position in 

the safety department; and that it’s the foreman’s job to make sure the ventilation is adequate, 

thereby implying that the ventilation problems Riordan complained about were due to his own 

shortcomings. While these many contentions were raised, Respondent did not directly make this 

part of its case. Instead, it maintained that, as poor a foreman as he was, at least according to 

Respondent’s telling, he still would have been kept on at Knox Creek, but for the closing of the 

sister mines and his poor evaluation score. To be clear, the Court was not impressed at all with 

any of these claims about Mr. Riordan’s other alleged deficiencies, but the larger point is that 

Respondent itself did not claim during its opening statement that Riordan’s termination was due 

to anything other than his low score. Unfortunately, the low score defense, as discussed above, 

did not hold up either. 

Mr. Jessee also agreed that the evaluation made no reference to any physical limitations 

for Riordan, including back issues. Tr. 234. However, when asked if physical limitations would 

be important in evaluating one’s ability to perform a job, Jessee only allowed, “Yes, to a certain 

point I guess you could say.” Id. He then agreed that Riordan’s physical limitations were not 

important enough to include on the evaluation form, stating, “No, I guess not.” Id. Accordingly, 

it is found that Mr. Riordan’s undefined back problems do not shed light on this discrimination 

claim. 

 17 Mr. Riordan admitted that he has back problems and that he has had them for 15 years 

or longer. Tr. 91. He also agreed that “at times” it is difficult for him to do the physical parts of 

work in an underground coal mine. Tr. 92. Consistent with his forthright testimony, he admitted 

that he had been treated for his back issue for years and that he wanted to get a job as a safety 

trainer on a full-time basis. Id. To that end, he had numerous discussions with Mr. Jessee about 

his desire to perform safety training work on a full-time basis. Tr. 93. Riordan, to his credit, was 

very forthcoming in his entire testimony, including his testimony about his back. The Court 

concludes that Complainant’s back was not a basis behind the filing of his discrimination claim. 

There is no credible evidence that Mr. Riordan’s back issues prompted his claim nor that his 

back adversely affected his work performance at Knox Creek. There is, for example, no evidence 

of Complainant’s loss of work time for such annoyances that he may have had regarding his 

back. In the Court’s estimation of his credibility, that candor and honesty, worked in his favor 

when it came to evaluating his credibility on the critical issues in this matter. 

37 FMSHRC Page 1097
Though Mr. Patrick was never a direct supervisor for Riordan, he claimed that Scott 

Jessee mentioned to him his impression of Riordan as a foreman. Patrick stated that “[o]n one 

occasion Mr. Jessee mentioned to [Patrick] that Mr. Riordan was one of his weaker section 

foremen.” Tr. 132. That this topic would even come up between the two seems quite odd. 

Further, Jessee never explained the basis for that view and apparently Patrick never inquired 

about the basis for the opinion either. Id. Patrick, upon the Court’s inquiry about the time of that 

comment, stated that he was “going to say that was probably 2012.” Id. Explaining further, 

Patrick offered that he had noticed that Mr. Riordan seemed to always be at the Knox Creek 

main office, instead of at the mine, and therefore asked “who this was and what his job duties 

were.” Tr. 133. Jessee’s response was that Riordan didn’t want to be a section foreman but 

wanted instead to work in the safety department. Id. 

Adding to the Court’s skepticism about this story, when asked during his deposition 

about Jessee’s alleged remark that Riordan was one of his weaker foremen, Patrick stated that he 

had no idea and could not recall when Jessee made that comment, nor even how it was 

transmitted, by phone or in person. Tr. 145-46. Further, Mr. Patrick could not recall whether he 

initiated the remark about Mr. Riordan or if Jessee volunteered it. Tr. 146. As his deposition 

conflicted with this testimony at the hearing, the Court noted the obvious import of the line of 

questioning — that Mr. Patrick’s recollection seemed to be better at the hearing than earlier in 

time, during his deposition. Tr. 147. The Court expressly stated that Mr. Patrick’s improved 

recollection is not the way memories usually operate. Tr. 147-48. Mr. Patrick then stated that as 

far as his observing Riordan in the office in 2012, that “was on one occasion.” Tr. 148 (emphasis 

added). When the Court picked up on that remark, that he noticed Riordan “at the office on one 

occasion,” he then immediately recanted, stating, “No, I noticed Mr. Riordan being at the office 

several times, and that being in 2012.” Id. Suffice it to say, the Court did not place stock in this 

alleged occurrence between Patrick and Jessee regarding Mr. Riordan. 

In subsequent cross-examination, revisiting the number of times Patrick had 

conversations with Mr. Jessee regarding Mr. Riordan, Patrick then responded that there were two 

entirely separate incidents and that they occurred in different time frames. The first was in 

connection with Patrick’s questions about Mr. Riordan’s “appearance daily at [the] mine office,” 

while the other time was in connection with the claim that Jessee told him that Riordan was one 

of the “lower performing section foremen.” Tr. 164. Patrick was then asked if Riordan was still 

training people at the time it was asserted that he was one of the weaker foremen. Tr. 165. 

Patrick, at the time of his deposition, had another bout of his “recall-itis.” Id. In contrast, at the 

hearing, Patrick stated that he didn’t think that Riordan was still doing training at the time he had 

the conversation with Mr. Jessee. Id. 

In further cross-examination, regarding Patrick’s statement that he spoke with Jessee 

about Riordan one time, Patrick stated that the conversation involved the remark that Riordan 

was “a lesser performer as far as section foremen.” Tr. 166. When asked details about who 

initiated that conversation, Patrick stated that he could not recall, but he did recall that Jessee 

told him that Riordan really liked the safety department, that is, the training side of it, more than 

he enjoyed being a section foreman. Tr. 166-67. 

37 FMSHRC Page 1098
Mr. Jessee was Riordan’s superintendent for “[a]bout ten years.” Tr. 202. Jessee stated 

that he goes underground “frequently” at the mine, elaborating that meant about three times per 

week. Id. While underground he checks on the status of the mine’s operating areas and “over the 

years,” as Respondent’s Counsel put it, he had the opportunity to observe Mr. Riordan. Id. Jessee 

maintained that, in 2013, Riordan was “one of [his] weaker foremen.” Tr. 203. He next agreed 

with Respondent’s Counsel’s words, that “he was at least good enough to keep his employment,” 

if not for the layoffs at Respondent’s other mines. Tr. 204. Again, not merely leading but 

effectively testifying for Jessee, Respondent’s Counsel continued, “But compared to your other 

foremen, he was one of the weaker ones?” Jessee responded, “Yes,” but when asked to elaborate 

about what was “weak about him,” he responded, “Just his ability to lead as a foreman and 

actually the ability to go above and beyond what’s required of him.” Id. The utter emptiness of 

this claim has been discussed by the Court. 

Mr. Riordan’s Work as a Safety Trainer at the Mine

Mr. Jessee agreed that Riordan wanted to be a safety professional, and if he had that job it 

would have relieved him of his duties as a foreman. Tr. 204. Further, he acknowledged that 

Riordan did some safety training at the mine in 2013, but that he was not the principal trainer. Id.

The principal trainer was Ronnie Stevenson. Id. Jessee agreed that Riordan sometimes filled in 

and did various types of training and he agreed that he had an opportunity to observe Mr. 

Riordan’s performance in doing that work. Tr. 205. When asked for his opinion of his 

performance in those tasks, Jessee described it as “fair.” Id. Continually, Respondent’s Counsel, 

through leading questions, suggested that Riordan’s desire was to be out of the mine and 

performing training in place of that work. See Tr. 134, 204, 205, 226. The idea behind these 

questions was to suggest that Riordan’s real motive was get out of mine work and that safety 

complaints were not his real agenda. Mr. Patrick acknowledged that Riordan did some training 

for the company, but that he was never a “regular” trainer. Tr. 134. Instead, he was the “second” 

for that work, filling in if the primary person was away. Id. 

The Court was not impressed with Respondent’s attempt to diminish Mr. Riordan’s role 

as a safety trainer, whether labeled as the principal trainer or not. Further, Knox Creek can’t have 

it both ways, simultaneously, grudgingly admitting that Mr. Riordan did safety training for its 

miners while claiming that it was difficult to get him to go underground or to be safety 

conscious, and that he was one of its poorer foremen, all while allowing him to do any safety 

training at all. Either he was really a poor foreman, and yet Knox Creek allowed him to safety 

train its employees, which does not speak well of Knox Creek’s view of the importance of safety 

training, or the characterization painted by the mine about Mr. Riordan was untrue. The Court 

finds that the latter description applies. 

Respondent’s Post-hearing Brief 

The Court read and considered all points and contentions raised in Respondent’s posthearing brief. Resp’t Br. 1-31. Although those arguments have been addressed through the 

findings of fact, one other matter is discussed here. The Respondent contends that, by virtue of a 

37 FMSHRC Page 1099
Supreme Court decision in Gross v. FBL Financial Services, Inc., an age discrimination matter,18

the Mine Act’s burden-shifting formula in its discrimination matters now must be discarded. 

Respondent first notes that under current law, 

Commission decisions set out a shifting burden of proof in cases under 

Section 105(c). Under these decisions, the Secretary’s initial burden is only to 

prove that the adverse action was motivated “in any part” by the protected 

activity. The burden then shifts to the operator to prove that the adverse action 

was motivated “in no part” by the protected activity or, alternatively, that the 

adverse action would have been taken solely for non-protected activities. See, e.g., 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980); Driessen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324 (Apr. 1998). 

Resp’t Br. 14. 

It is Respondent’s contention that since the Supreme Court has invalidated the same 

burden-shifting scheme in Age Discrimination cases, the burden-shifting scheme under Mine Act 

cases must also be invalidated as it contains the same operative language. Resp’t Br. 15. The 

Mine Act, it argues, is like the ADEA’s discrimination provision and Title VII’s retaliation 

provision in that it remedies discrimination which occurs “because of” the protected status or 

activity. Id. Respondent asserts that the Mine Act provides no remedy where the protected 

activity was simply “a motivating factor.” Id. As Knox Creek sees it, the cited Supreme Court 

cases establish two important principles pertinent to this case: 

First, the Secretary must prove as part of her case in chief that Riordan would not 

have been terminated “but for” the protected activity. It is not enough for him to 

prove the protected activity motivated the discharge “in any part.” Second, the 

burden of proof on causation never shifts to Knox Creek, but remains with the 

Secretary from start to finish. 

Resp’t Br. 15-16. 

 Under the burden of proof required by Gross v. FBL, Knox Creek maintains that it is “the 

Secretary’s burden to prove by the greater weight of the evidence that Riordan would not have 

 18 Respondent cites to Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), stating 

that the Supreme Court held that burden-shifting does not apply under the Age Discrimination in 

Employment Act (“ADEA”), 28 U.S.C. § 621 et seq., “because, under the ADEA, the 

discrimination must be proven in the first instance to be ‘because’ of age. Id. at 176. The 

Supreme Court revisited the issue in University of Texas Southwestern Medical Center v. Nassar, 

133 S. Ct. 2517, 2533 (2013), holding that even under Title VII, ‘retaliation claims must be 

proved according to traditional principles of but-for causation . . . . This requires proof that the 

unlawful retaliation would not have occurred in the absence of the alleged wrongful action or 

actions of the employer.’ In Burrage v. United States, 134 S. Ct. 881, 888-89 (2014), the 

Supreme Court restated that – under federal statutes that use of the word ‘because’ in setting the 

causation standard – the burden is on the plaintiff to prove that the protected status was the ‘but 

for’ cause of the employer’s adverse employment decision.” Resp’t Br. 15. 

37 FMSHRC Page 1100
lost his job if he had not engaged in protected activities.” Resp’t Br. 16. The burden of going 

forward or of persuasion on all issues would “never shift to Knox Creek, but remain[] upon the 

Secretary throughout the trial.” Id.

 

 Applying its view of the applicability of the Supreme Court ruling under a different 

statute, unrelated to mine safety law, to this case,19 Knox Creek maintains that it showed a nondiscriminatory reason for Riordan’s job termination — namely, a reduction in force and 

realignment which affected dozens of people besides Riordan and was driven by mine closures at 

sister mines. Riordan’s termination occurred on the very day of the closure of the Laurel 

Mountain mine, the event which caused it. Tr. at 327. 

 Per Gross v. FBL, it then was the Secretary’s burden to show that the reasons given by 

Knox Creek for Riordan’s termination were “pretextual,” meaning they had no basis in fact, the 

proffered reasons did not motivate the adverse action, or the reason given was insufficient to 

motivate the adverse action. It maintains that the realignment/layoff, involving dozens of 

employees at four mines, individual comparative evaluations, and efforts to place and retain the 

better employees, cannot be characterized as pretextual. No one would invent and implement 

such an involved, far-reaching decision-making protocol as a subterfuge to cover unlawfully 

motivated discrimination against a single employee among dozens who were affected by the 

process. 

 Knox Creek’s argument for why, upon providing its asserted business justification, it 

should prevail, is as follows: 

The Commission and its judges have neither the statutory charter nor the 

specialized expertise to sit as a super grievance or arbitration board meting out 

industrial equity. Once it appears that a proffered business justification is not 

plainly incredible or implausible, a finding of pretext is inappropriate. Chacon, 3 

FMSHRC at 2516. The Commission’s function is not to pass on the wisdom or 

fairness of Knox Creek’s asserted business justification, but rather only to 

determine whether it is credible and, if so, whether it would have motivated Knox 

Creek. Secretary of Labor on behalf of Michael Price v. Jim Walter Resources, 

Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). 

The reduction and realignment of dozens of employees at the four affiliated mines 

is not “plainly incredible or implausible.” That the reduction and realignment 

occurred is clear and uncontested. The narrow statutory issue remaining is 

whether Knox Creek’s reason for Riordan’s termination – the reduction and 

realignment – was enough to have legitimately moved Knox Creek terminate 

Riordan’s employment. See Chacon, 3 FMSHRC at 2517. Undoubtedly it was. 

One hundred thirty three jobs were eliminated by the closure of two of the four 

mines in the group. There was nowhere to place all of them. Some jobs, including 

section foreman jobs, were eliminated. This is not a case of an employer claiming 

to have fired someone for an insubstantial offense, indicating the stated reason is 

 19 For the sake of argument only, Knox Creek assumes that the Secretary met its initial 

burden. 

37 FMSHRC Page 1101
not the true reason. While the loss of Riordan’s job was understandably a 

disappointment to him, it was one of dozens of changes to employment of more 

than 130 people resulting from the closure of half the mines in the group. 

Determination of motivation in cases of this sort almost always involves 

inferences to be drawn from proven facts, but only inferences which are 

inherently reasonable and logically and rationally connected to evidentiary facts 

may be inferred. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984); 

Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 1989). 

“Inferences must be based upon findings of fact followed by a logical and rational 

conclusion and may not be spun out of speculation or piled one on another to an 

inferred result that collapses the weight of its own insubstantial structure.” United 

Mine Workers of America on behalf of Mark A. Franks v. Emerald Coal 

Resources, LP, 36 FMSHRC 2088, 2124 (Aug. 2014) (Althan, Commissioner, 

dissenting). 

Resp’t Br. 18-19. 

 The Court finds that Knox Creek’s contention lacks merit for several reasons. First, the 

Supreme Court decision in the Age Discrimination Act case does not represent Mine Act law. 

The Mine Act has a long-established analysis for discrimination claims, and it is that current law 

which this Court follows here. While age discrimination is a worthy subject for relief, as 

reflected by Congress’ recognition of that form of discrimination, it has neither the hazard-filled 

history, nor the deadly consequences, that are inextricably part of mining, as recognized by the 

federal government’s role in enacting mine safety and health laws since the Federal Coal Mine 

Safety Act of 1952. Discrimination is an integral and essential part of the federal formula for the 

protection of the health and safety of persons working in the mining industry. Section 105(c) 

makes this plain, in providing in relevant part that “[n]o person shall discharge or in any manner 

discriminate against . . . because such miner . . . has filed or made a complaint under [the Mine 

Act] including a complaint notifying the operator . . . of an alleged danger or safety or health 

violation in a coal or other mine.” 30 U.S.C. § 815(c). 

As the Court also noted at the start of the hearing, in addressing the Respondent’s 

Memorandum of Law in support of its contention, if it were to accede to the contention, it would 

seem to make it impossible for an alleged discriminatee to ever prevail because they would have 

to get inside the head of the mine operator. That would be impossible and therefore the task 

would be insurmountable. Tr. 5-6. The Court is not alone in this view. In the 5–4 decision of the 

Court in Gross v. FBL, Associate Justice Breyer, joined by Justices Souter and Ginsburg, said the 

following: 

Justice BREYER, with whom Justice SOUTER and Justice GINSBURG join, 

dissenting. 

I agree with Justice STEVENS that mixed-motive instructions are appropriate in 

the Age Discrimination in Employment Act context. And I join his opinion. The 

Court rejects this conclusion on the ground that the words “because of” require a 

37 FMSHRC Page 1102
plaintiff to prove that age was the “but-for” cause of his employer’s adverse 

employment action. Ante, at 2350. But the majority does not explain why this is 

so. The words “because of” do not inherently require a showing of “but-for” 

causation, and I see no reason to read them to require such a showing. 

 

It is one thing to require a typical tort plaintiff to show “but-for” causation. In that 

context, reasonably objective scientific or commonsense theories of physical 

causation make the concept of “but-for” causation comparatively easy to 

understand and relatively easy to apply. But it is an entirely different matter to 

determine a “but-for” relation when we consider, not physical forces, but the 

mind-related characterizations that constitute motive. Sometimes we speak of 

determining or discovering motives, but more often we ascribe motives, after an 

event, to an individual in light of the individual’s thoughts and other 

circumstances present at the time of decision. In a case where we characterize an 

employer’s actions as having been taken out of multiple motives, say, both 

because the employee was old and because he wore loud clothing, to apply “butfor” causation is to engage in a hypothetical inquiry about what would have 

happened if the employer’s thoughts and other circumstances had been different. 

The answer to this hypothetical inquiry will often be far from obvious, and, since 

the employee likely knows less than does the employer about what the employer 

was thinking at the time, the employer will often be in a stronger position than the 

employee to provide the answer. 

 

All that a plaintiff can know for certain in such a context is that the forbidden 

motive did play a role in the employer’s decision. And the fact that a jury has 

found that age did play a role in the decision justifies the use of the word 

“because,” i.e., the employer dismissed the employee because of his age (and 

other things). See Price Waterhouse v. Hopkins, 490 U.S. 228, 239–242, 109 S.Ct. 

1775, 104 L.Ed.2d 268 (1989) (plurality opinion). I therefore would see nothing 

wrong in concluding that the plaintiff has established a violation of the statute. 

 

But the law need not automatically assess liability in these circumstances. In 

Price Waterhouse, the plurality recognized an affirmative defense where the 

defendant could show that the employee would have been dismissed regardless. 

The law permits the employer this defense, not because the forbidden motive, age, 

had no role in the actual decision, but because the employer can show that he 

would have dismissed the employee anyway in the hypothetical circumstance in 

which his age-related motive was absent. And it makes sense that this would be 

an affirmative defense, rather than part of the showing of a violation, precisely 

because the defendant is in a better position than the plaintiff to establish how he 

would have acted in this hypothetical situation. See id., at 242, 109 S.Ct. 1775; cf. 

ante, at 2356 (STEVENS, J., dissenting) (describing the Title VII framework). I 

can see nothing unfair or impractical about allocating the burdens of proof in this 

way. 

 

37 FMSHRC Page 1103
The instruction that the District Court gave seems appropriate and lawful. It says, 

in pertinent part: 

“Your verdict must be for plaintiff if all the following elements 

have been proved by the preponderance of the evidence: 

..... 

“[The] plaintiff’s age was a motivating factor in defendant’s 

decision to demote plaintiff. 

“However, your verdict must be for defendant ... if it has been 

proved by the preponderance of the evidence that defendant 

would have demoted plaintiff regardless of his age. 

..... 

“As used in these instructions, plaintiff’s age was ‘a motivating 

factor,’ if plaintiff’s age played a part or a role in the defendant’s 

decision to demote plaintiff. However, plaintiff’s age need not 

have been the only reason for defendant’s decision to demote 

plaintiff.” App. 9–10. 

 

For these reasons as well as for those set forth by Justice STEVENS, I 

respectfully dissent. 

Gross v. FBL, 557 U.S. at 190-92. 

 Accordingly, for the foregoing reasons, Knox Creek’s contention that the 

Supreme Court’s decision in Gross v. FBL requires a new standard of proof for Mine Act 

discrimination cases is rejected. 

Conclusion, Order, and Assessment of Civil Penalty 

As noted at the outset, Riordan’s termination was adverse action. It is undisputed that 

Charles Riordan was terminated by Knox Creek on December 13, 2013. There was a close 

proximity between Riordan’s protected activity and that adverse action.20 Mr. Riordan was a 

long-employed and well-regarded employee until he continued to voice his safety concerns over 

the mine’s persistent ventilation problems. In good faith, thinking that an honest discussion of 

safety issues was encouraged, he spoke frankly to the mine president about that ventilation 

 20 As Riordan’s Counsel has noted, close proximity in time between a miner's protected 

activity and an operator's adverse action is itself evidence of a discriminatory motive, citing 

Donovan on behalf of Anderson v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 

1984); Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 

(1981), rev'd on other grounds sub nom. Donovan on behalf of Chacon v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). 

37 FMSHRC Page 1104
problem. Aside from the Knox Creek’s human resource witnesses, its other witnesses conceded 

that there were indeed continuous ventilation problems. One individual in particular, Mr. 

Jackson, took particular umbrage at Mr. Riordan’s candid remarks about the problems and he 

told Riordan directly about his reaction on the first day following his return from vacation, 

stating that Riordan had thrown him under the bus. It was no coincidence that the same day, Mr. 

Riordan supposedly was found to be working under unsupported roof, the first time such an 

infraction had been leveled at him. Though the Respondent made other claims of Mr. Riordan’s 

alleged shortcomings, they either did not actually occur, occurred once, or assuming generously 

that his failures did occur they were not written down, nor were any adverse actions taken, even 

when it was conceded that normally such alleged infractions would require action of some sort. 

Then, too, it is completely contrary, and frankly unbelievable, that Riordan, as one of the 

mine’s alleged “weaker foremen” would still be entrusted to conduct mine safety training. 

Further, in terms of the evaluation system, putting aside the lack of any detailed explanation of 

how points were assigned to the salaried people, putting aside Mr. Jessee’s unbelievable 

testimony about his role in that process and the conflicts between his deposition and hearing 

testimony, the system itself, by the words of witnesses and counsel for the Respondent, was 

malleable. Scores were supposedly the determinative factor for determining who was retained 

and who was not, except when they were admittedly not decisive. Desired outcomes trumped 

scores when needed. Beyond that, there is the whole matter of Knox Creek adding employees 

after Mr. Riordan’s discharge and the absence of any evidence that he was on a list of those 

eligible for the openings which subsequently arose. Beyond these reasons, regrettably, witnesses 

Patrick, Jessee, and Jackson were simply not credible. 

Accordingly, for all of above, the Court finds that Knox Creek Coal unlawfully 

discriminated against the Complainant, Charles Riordan, for engaging in protected activity. The 

Court directs the Respondent to permanently reinstate the Complainant to his former position at 

Knox Creek together with any back pay which may be due and with all entitled benefits.21

In terms of the civil penalty, the Court has considered each of the statutory criteria and 

notes that the Secretary believes that a penalty of at least $20,000.00 (twenty thousand dollars) 

should be assessed. The parties’ stipulations and the record have spoken to some of the statutory 

criteria, but in arriving at the civil penalty, uppermost in the Court’s evaluation are the lack of 

good faith, the gravity, and the negligence involved, each of which are deemed to have been 

significantly lacking on the Respondent’s part and fully warrant the civil penalty of $25,000.00 

(twenty-five thousand dollars), which penalty amount is hereby imposed by this decision for the 

violation of section 105(c) of the Mine Act and which is to be paid within 30 days of this Order. 

Within ten days of this Order, Knox Creek shall post this decision along with a visible 

notice on a bulletin board at the mine that is accessible to each and every employee, explaining 

that Knox Creek has been found to have discriminated against an employee, that such 

discrimination will be remedied, and that it will not reoccur in the future. The notice shall also 

 21 As is customary in these proceedings upon a finding of discrimination, the Court 

directs the parties to confer and to stipulate as to these terms and to report within 14 days of this 

decision whether an accord could be reached or whether it will be necessary to conduct an 

immediate hearing to take evidence on such issues as may be unresolved. 

37 FMSHRC Page 1105
inform all employees of their rights in the event they believe they have been discriminated 

against. All references to the termination of Mr. Charles Riordan and the reasons asserted 

therein, are to be removed from his personnel file. 

The Court retains jurisdiction of this matter until the specific remedies to which Charles 

Riordan is entitled are resolved and finalized. Accordingly, this decision will not become final 

until an Order granting any specific relief and awarding damages has been entered. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Karen M. Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen M. Hodges, Esq., Penn Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

37 FMSHRC Page 1106
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N 

WASHINGTON, D.C. 20004 

May 29, 2015 

FINAL DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

This case is before me pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c). Complainant Frank Rodriguez (“Complainant” or 

“Rodriguez”), filed a discrimination complaint against Lehigh Southwest Cement Company 

(“Respondent” or “Lehigh”) under section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). 

Chief Administrative Law Judge Robert J. Lesnick assigned this case to me, and I set the matter 

for hearing several times, including: October 22–23, 2013, February 25–26, 2014, and July 17–

18, 2014. However, each time the hearing was continued because of the complicated procedural 

circumstances of this case and Complainant’s efforts to obtain representation. On January 13–14, 

2015, I received testimony and evidence at a hearing in San Jose, California. Translation of 

Complainant’s testimony was time-consuming, and neither party completed its case-in-chief in 

the allotted two days. The litigants’ schedules precluded a supplemental hearing on January 15, 

2015, and after discussing next steps in this case and the parties’ availability, I held a 

supplementary hearing in San Jose, California on April 14–15, 2015, to complete the hearing and 

take evidence on damages, if any. 

During the hearing on April 15, the parties informed me that they wished an opportunity 

to complete a settlement agreement. (Tr. 648:2–7.) After the agreement was reduced to writing 

and signed by the parties, the parties submitted a settlement agreement entitled Confidential 

Settlement Agreement and General Release (“Confidential Settlement Agreement”) to me for my 

review. (Tr. 648:7–649:7.) In addition, the parties asked that the terms and conditions of the 

agreement remain strictly confidential. (Tr. 649:4–8.) In light of the parties’ request, I agreed to 

review the settlement agreement in camera and I issued an order from the bench placing the 

Confidential Settlement Agreement under seal in the official file.1

 (Tr. 649:8–10.) 

Next, I issued an interim decision approving settlement from the bench. Having reviewed 

the parties’ settlement agreement, I approved its terms as they relate to Complainant’s claim 

under section 105(c)(3) of the Mine Act, and I found the agreement to be consistent with section 

1

 In a separate Order dated today, I also reduced to writing my April 15, 2015, bench 

order placing the Confidential Settlement Agreement under seal in the official file. 

FRANK RODRIGUEZ, 

 Complainant, 

v. 

LEHIGH SOUTHWEST CEMENT 

 COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2013-301-DM 

WE MD 13-05 

Mine ID 04-04075 

Lehigh Permanente Cement 

37 FMSHRC Page 1107
105(c) and the purposes of the Mine Act. See 30 C.F.R. §§ 815(c), 820(i). In addition to ordering 

the parties to comply with terms of the settlement agreement, I retained jurisdiction in the matter 

until the obligations outlined in the agreement had been satisfied. (Tr. 649:11–20.) Finally, I 

ordered counsel for the parties to report to my Law Clerk, Paul Veneziano, when all obligations 

had been satisfied. (Tr. 649:21–25.) 

On May 13, 2015, counsel for Rodriguez informed Mr. Veneziano that the terms of the 

settlement agreement had been satisfied. On May 27, 2015, counsel for Lehigh confirmed that all 

obligations had been satisfied. Accordingly, final approval of the parties’ settlement is hereby 

GRANTED. 

WHEREFORE, the terms of the Confidential Settlement Agreement have been satisfied, 

this proceeding is hereby DISMISSED with prejudice. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Certified Mail – Return Receipt Requested) 

Robert David Baker, Esq., Robert David Baker, Inc., 80 South White Road, San Jose, CA 95127 

(rbaker@rdblaw.net) 

Frank Rodriguez, 2487 Alum Rock Avenue, Apartment 30, San Jose, CA 95116 

(tunesesidadesfrank@yahoo.com) 

Dinah L. Choi, Esq., and Kelly S. Riggs, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

222 SW Columbia Street, Suite 1500, Portland, OR 97201 

(dinah.choi@ogletreedeakins.com) 

(kelly.riggs@ogletreedeakins.com) 

/pjv 

37 FMSHRC Page 1108
ADMINISTRATIVE LAW JUDGE ORDERS

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 

May 4, 2015 

ORDER GRANTING JOINT 

MOTION TO TOLL TEMPORARY REINSTATEMENT

This case is before me pursuant to an Application for Temporary Reinstatement brought 

under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c), 

et. seq. (the “Mine Act.”). On January 26, 2015, I approved a settlement between the parties and 

ordered temporary economic reinstatement of Nicholas Dove. On March 9, 2015, the 

Respondent filed a Motion to Toll Temporary Reinstatement arguing that a reduction in force 

that occurred on February 9, 2015 warranted a tolling of the Temporary Reinstatement Order. In 

support of its assertions, the Respondent attached an Affidavit signed by mine manager, Kenny 

Lambert, Jr.. The Secretary opposed the Respondent’s Motion, and urged the Court to deny the 

Motion because there was “insufficient information concerning the total workforce in this case 

and because the information furnished to the court omits critical information about all the mining 

operations controlled by Respondent.” Secy’s Opp. Mot. ¶5. Furthermore, it stated that 

Respondent had ceased payments to the miner on February 9, 2015, in violation of this Court’s 

Order to Temporarily Economically Reinstate Dove. 

On March 16, 2015, the undersigned issued an Order Denying Respondent’s Motion to 

Toll Temporary Reinstatement. In that Order, the undersigned ordered the Respondent to provide 

information requested by the Secretary to show that tolling was warranted. Furthermore, the 

undersigned ordered the Respondent “to immediately pay Dove all outstanding payments due 

under the Temporary Reinstatement Order of January 26, 2015, and to continue such payment 

until this court orders otherwise.” Ord. Denying Resp.’s Mot., 2. Following this Order, a 

conference call was held with the parties, wherein the Respondent agreed to provide the 

Secretary additional information and the Secretary agreed to review the information 

expeditiously. It was agreed that once the Respondent provided sufficient information to show 

that tolling was warranted in this case, the parties would submit a joint motion to toll the 

Temporary Economic Reinstatement Order.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) ON 

 BEHALF OF NICHOLAS DOVE, 

 Complainant, 

v. 

KENTUCKY FUEL CORP., 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2015-158-D 

MSHA Case No. PIKE-CD-2014-06 

Mine: Beech Creek Surface 

Mine ID: 15-19475 

37 FMSHRC Page 1109
 The Secretary and Respondent submitted a Joint Motion to Toll Economic Reinstatement 

Order on April 16, 2015. In this joint motion, the parties represented that additional information 

was supplied to the Secretary and, based on such information, the “Court’s Reinstatement Order 

should be tolled due to conditions unrelated to Dove’s alleged protected activity under the Mine 

Act.” The parties further requested this Court to toll the Reinstatement Order effective March 9, 

2015, the date of Respondent’s initial opposed motion for tolling, which was denied. By email 

correspondence with the undersigned’s law clerk, the Respondent has represented that it has only 

paid Dove through March 9, 2015, in violation of the two previous orders of this court. 

 For the reasons that follow, the Joint Motion to Toll Economic Reinstatement Order is 

GRANTED, effective April 16, 2015. 

 “The Commission has recognized that the occurrence of certain events, such as a layoff 

for economic reasons, may toll an operator's reinstatement obligation.” MSHA obo Robert Gatlin 

v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). This “limited inquiry to 

determine whether the obligation to reinstate a miner may be tolled even when it has been 

established that the miner's discrimination complaint is not frivolous,” must be consistent with 

the “narrow scope of temporary reinstatement proceedings.” MSHA obo Dustin Rodriguez v. 

C.R. Meyer & Sons Co., 2013 WL 2146640, *3 (May, 2013). Accordingly, 

[a]n operator generally must affirmatively prove that a layoff justifies tolling temporary 

reinstatement by a preponderance of the evidence. Gatlin, 31 FMSHRC at 1055. 

However, if the objectivity of the layoff as applied to the miner is called into question in 

the temporary reinstatement phase of the litigation, judges must apply the “not 

frivolously brought” standard contained in section 105(c)(2) of the Mine Act to the 

miner's claim. 

MSHA obo Russell Ratliff v. Cobra Natural Resources, LLC, 2013 WL 865606, *4 (Feb. 2013). 

“In other words, temporary reinstatement should be granted and not tolled unless the operator 

shows that the claim that the layoff arose at least in part from protected activity is frivolous.” 

C.R. Meyer & Sons, 2013 WL 2146640, *3. 

 The Commission has categorized tolling as an affirmative defense, and held that the 

operator must make a showing by a preponderance of the evidence that no work was available 

for the miner. KenAmerican Resources, 31 FMSHRC at 1054-55; see also Chadrick Casebolt, 6 

FMSHRC 485, 499 (Feb. 1984) (“if business conditions result in a reduction in the work force 

the right to back pay is tolled because a discriminatee is entitled to back pay only for the period 

during which he would have worked but for the unlawful discrimination.”) 

 

 In the instant case, the Secretary opposed the March 9, 2015 Motion to Toll and 

challenged the objectivity of the layoff. Therefore, under the “not frivolously brought” standard, 

the Respondent’s motion failed. After the Respondent provided additional information and 

evidence to the Secretary, the Secretary dropped its objections to the objectivity of the layoff, 

and indeed joined the Motion to Toll on April 16, 2015. Therefore, the standard of review is now 

preponderance of the evidence. Under this standard, the Respondent’s evidence that the 

Secretary has reviewed that it idled the Bevins Branch and Bent Mountain surface mines due a 

37 FMSHRC Page 1110
loss of coal sales, resulting in a reduction-in-force of 72, is sufficient. Joint Motion, 1. The 

Respondent retained five supervisors and 11 heavy equipment operators at its three surface 

mines, but it retained no greasers (Dove’s position at the mine). Id. at 2. Under these 

circumstances, Dove’s temporary economic reinstatement should be tolled. 

 In the Joint Motion, the parties suggest that the Temporary Reinstatement Order be tolled 

effective March 9, 2015—the date of the first Motion to Toll. This request is denied, and instead 

the Temporary Reinstatement Order is tolled effective April 16, 2015—the date of the Joint 

Motion to Toll upon which this Order is based. 

 According to two previous orders, the Respondent was required to continue payments to 

Dove until such time as this Court ruled otherwise. Respondent unilaterally ceased payments on 

February 9, and only continued payment through March 9 (a date that Respondent again chose 

unilaterally without leave of the Court) after the denial of its first Motion to Toll and Order 

requiring the continuation of payment. In previous cases, the Commission has rebuked 

Respondents for unilaterally cutting off payments to a discriminatee on the date of a reductionin-force rather on the date of a modification, stating that “no operator is free to take the law into 

its own hands by deciding for itself what the law means and how it can best be applied.” Sec.’y 

of Labor obo Robert Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, n. 2 (Oct. 

2009). In Gatlin, the Commission made it clear what the proper course of action is for an 

operator that believes a change in conditions warranted tolling, stating “[r]ather than determining 

unilaterally that the workforce reduction justified terminating Mr. Gatlin’s reinstatement, 

KenAmerican should have moved the Judge to modify the August 31 Order. Id.1

 

Here, the Respondent chose to wait a month after its reduction-in-force to file its first 

Motion to Toll, and then took another month after that Motion was denied to provide additional 

evidence to the Secretary. It cannot now claim that the temporary reinstatement should be tolled 

retroactively, when it was in control of the information and evidence and was the cause of the 

delay.2 The Respondent provided sufficient evidence that tolling was warranted in its April 16, 

2015 Joint Motion. Accordingly: 

 

It is ORDERED that Dove’s temporary economic reinstatement is TOLLED. 

 1

 If Respondent had not violated the court’s order and continued payment to the miner, 

that money would not be recoverable by the Respondent even if the February 9 reduction-inforce warranted tolling the temporary reinstatement. Sec’y of Labor obo Dustin Rodriguez v. 

C.R. Meyer and Sons Co., 35 FMSHRC 811, 813-814 (Apr. 2013)(“[T]here is nothing in the 

Mine Act which contemplates that the miner would be expected to repay the amounts paid 

pursuant to the reinstatement order. Indeed, that would run counter to the intent of the provision, 

which is to provide immediate relief to a complaining miner while he or she waits for the case to 

be decided.”) 

2

 Respondent’s stated reason for idling the mine on February 9 was “the general softness 

of the Central Appalachian coal marke[t].” Presumably this decision was made prior to February 

9, and it could have moved this Court prior to that date to toll the economic reinstatement. 

37 FMSHRC Page 1111
 The Respondent is ORDERED to pay Dove under the terms of the Temporary Economic 

Reinstatement Order through April 16, 2015. 

It is Further ORDERED that the Respondent shall inform the Secretary, Dove, and this 

Court if Beech Creek, Bevins Branch, or Bent Mountain mines are brought back into production. 

/s/ John Kent Lewis 

 John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor, 618 Church St., Suite 230, 

Nashville, TN 37219 

Nicholas Dove, 163 Pawpaw Fork, Burnwell, KY 41514 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Dr., Suite 310, 

Lexington, KY 40509 

/mzm 

37 FMSHRC Page 1112
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 

May 4, 2015 

 

ORDER ON RESPONDENT’S MOTION FOR SUMMARY DECISION

Before: Judge Moran 

Before the Court is Respondent Savage Services Corporation’s (“Savage”) Motion for 

Summary Decision (“Savage Motion”).1

 The Complainant, Sean Miller, is not an attorney and is 

bringing this action pro se pursuant to section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c)(3) (“Mine Act”), and 29 C.F.R. § 2700.40(b). For the reasons 

that follow, the Respondent’s Motion is DENIED. The hearing in this matter remains as 

scheduled, to commence on May 12, 2015, at the Graham County Courthouse, 800 W. Main 

Street, Safford, Arizona. 

Background 

 On May 14, 2013, Sean Miller made a discrimination complaint with MSHA, which 

complaint was received on May 17th. Mr. Miller alleged that he was “Harrassed and Retaliated 

againsts (sic) for putting Commercial Vehicles Out of Service.” The Complaint identified Isaiah 

Krass, assistant operations manager, and Richard Burkie,2

 another Savage supervisor, as the 

individuals who “harassed and retaliated against[] [him] for putting commercial vehicles out of 

service.” MSHA Discrimination Report May 14, 2013. Thereafter, on August 22, 2013, MSHA 

advised Miller by letter that 

[b]ased on a review of the information gathered during the investigation, MSHA 

does not believe that there is sufficient evidence to establish, by a preponderance 

of the evidence that a violation of Section 105(c) occurred [and] [f]or that reason, 

the Secretary of Labor will not file a discrimination case with the Federal Mine 

Safety and Health Review Commission (“Commission”) in this matter.

 1 The Order of Assignment lists the Respondent as “Savage Transport,” as did a preassignment Order directing the Respondent to answer the Complaint. The Respondent is now 

correctly identified as Savage Services Corporation. 

 

2 This is a misspelling. The individual is Richard Bjerke. 

SEAN MILLER, 

 Petitioner, 

 v. 

SAVAGE SERVICES CORP., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-7-DM 

RM MD 2013-08 

Mine: Freeport-McMoRan Morenci Mine 

Mine ID: 02-00024 A3858 

37 FMSHRC Page 1113
The letter noted that Miller “continue[s] to have the right to file a discrimination case on [his] 

own behalf with the Commission.” Miller did just that, submitting a letter to Carolyn T. James 

(“Ms. James”), Mine Safety and Health Administration, 1100 Wilson Boulevard, Arlington, 

Virginia 22209-3939, on September 30, 2013, which letter was then forwarded to the 

Commission and date stamped as received on October 9, 2013. The letter to Ms. James identified 

two instances of protected activity: (1) Miller’s taking his truck out of service because of 

inoperable brakes, and (2) his refusal to drive an overweight vehicle and his further refusal to use 

a replacement truck which had not been cleared for service in place of the overweight vehicle. 

At this point, it is necessary to note that Miller subsequently made a second 

discrimination complaint against Savage, which resulted in the Secretary filing a complaint 

against Savage, identified as Docket No. WEST 2014-404, and regarding which the Court issued 

its decision on April 30, 2015, finding that Savage unlawfully discriminated against Sean Miller. 

The second discrimination complaint was filed on or about October 21, 2013, and was based 

upon the claim that Miller was unlawfully discharged on or about September 3, 2013. The 

second complaint references Miller’s first complaint, alleging that around May 2, 2013, he was 

harassed and disciplined for taking vehicles out of service and it identifies May 2, 2013, as one 

of the incidents of Miller’s protected activity. The second complaint then related other alleged 

instances of protected activity occurring after the matter raised in the first complaint. 

Summary Decision 

The Commission’s procedural rule governing summary decision, 29 C.F.R. § 2700.67, 

provides in relevant part: 

(b) Grounds. A motion for summary decision shall be granted only if the 

entire record, including the pleadings, depositions, answers to interrogatories, 

admissions, and affidavits, shows: 

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

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

matter of law. 

. . . . 

(d) Form of opposition. An opposition to a motion for summary decision 

shall include a memorandum of points and authorities specifying why the moving 

party is not entitled to summary decision and may be supported by affidavits or 

other verified documents. The opposition shall also include a separate concise 

statement of each genuine issue of material fact necessary to be litigated, 

supported by a reference to any accompanying affidavits or other verified 

documents. Material facts identified as not in issue by the moving party shall be 

deemed admitted for purposes of the motion unless controverted by the statement 

in opposition. If a party does not respond in opposition, summary decision, if 

appropriate, shall be entered in favor of the moving party.3

 

3 Following a conference call with the parties regarding Savage’s Motion for Summary 

Decision, the Court emailed Miller, copying Attorney Wolff. As noted below, that email 

summed up the Court’s discussion of the conference call. However, one aspect of the email from 

(continued...) 

37 FMSHRC Page 1114
. . . . 

(f) Case not fully adjudicated on motion. If a motion for summary decision 

is denied in whole or in part, the Judge shall ascertain what material facts are 

controverted and shall issue an order directing further proceedings as appropriate. 

29 C.F.R. § 2700.67 (emphasis added). 

Savage’s Motion for Summary Decision 

On April 3, 2015, Savage filed its motion for summary decision, alleging four bases in 

support: 

[1] Mr. Miller’s complaint was filed with MSHA outside of the 60-day 

statutory time limit imposed by Section 105(c) of the Mine Act without a 

justifiable excuse for that delay; 

[2] No adverse action actionable under the Mine Act was taken against 

Mr. Miller as a result of his protected activity; 

[3] The complaint now before the Commission alleges conduct that is 

outside the scope of the complaint Mr. Miller filed with MSHA and to that extent 

is outside the scope of the agency’s investigation and is not properly raised in his 

Section 105(c)(3) complaint; and 

[4] This matter has been superseded by Mr. Miller’s termination-related 

proceeding in No. WEST 2014-404-DM. 

Savage Motion at 5. 

Because Miller is not an attorney and is acting pro se, the Court had a conference call 

with the parties to discuss Savage’s Motion on April 9, 2015. During that call, the Court ruled on 

two of the bases advanced by Respondent. As to the first basis, that Mr. Miller’s complaint was 

filed with MSHA outside of the 60-day statutory time limit imposed by Section 105(c) of the 

Mine Act without a justifiable excuse for that delay, the Court rules that Miller’s lack of 

sophistication in legal matters excuses his delay. Beyond that finding, it is noted that Savage’s 

objection relates to Miller’s complaint that he was harassed on January 31, 2013, and did not file 

the complaint with MSHA until some six weeks after the 60 day time limit. However, neither 

MSHA nor Savage previously raised, or had an issue with, Miller’s delayed filing. Savage 

3

 (...continued) 

the Court misstated the standard for reviewing such motions in the statement that “such a 

[summary decision] motion asserts that there are no factual issues in dispute and that the law 

favors the arguments of the party filing the motion (Savage, in this case), so the Court may issue 

its decision without any hearing.” In fact, the applicable provision provides: “If a party does not 

respond in opposition, summary decision, if appropriate, shall be entered in favor of the moving 

party.” 29 C.F.R. § 2700.67(d) (emphasis added). Accordingly, it is within the Court’s informed 

discretion to rule in favor of the moving party in such circumstances or not. Under the 

circumstances here, for the reasons expressed in this Order, the Court has determined that, 

despite the minimal response in opposition from Mr. Miller, it would not be appropriate to enter 

summary decision in favor of Savage against this pro se complainant. 

37 FMSHRC Page 1115
concedes that the deadline is not jurisdictional. The Court finds that there was delay all around 

and that Savage should have objected when MSHA first notified Savage that it was investigating 

Miller’s complaint. 

 

The second basis ruled upon by the Court during the call pertains to Savage’s objection 

that the complaint now before the Commission alleges conduct that is outside the scope of the 

complaint Mr. Miller filed with MSHA, and to that extent is outside the scope of the agency’s 

investigation, and is therefore not properly raised in his section 105(c)(3) complaint. The Court 

disposed of that objection, but agrees with Savage that Mr. Miller’s complaint can’t now be 

expanded from the basis which prompted him to file it, namely the January 31, 2013, events, the 

harassment associated with those events, and any harm he may have experienced from that 

harassment. 

Although, sequentially, it was the last of the four bases advanced by Savage, the Court 

turns to Respondent’s claim that the matter has been superseded by Mr. Miller’s terminationrelated proceeding in No. WEST 2014-404-DM. The first complaint was not superseded by the 

second complaint, although some factual aspects of the first complaint were addressed during the 

hearing held in June 2014. MSHA Special Investigator Funkhouser testified that four safety 

incidents were considered in this first complaint: a brake shoe issue; a brake line leak; a tire 

issue; and an overweight truck incident. Investigator Funkhouser recommended that MSHA go 

forward with that first complaint, but MSHA decided against that recommendation and Miller 

then proceeded on his own in this present section 105(c)(3) action. Funkhouser noted a 

difference between the first complaint and the second one: the adverse action in the first 

complaint was harassment, while the second complaint involved Miller’s employment 

termination. Transcript of Hearing at 237-48, Sec’y of Labor on behalf of Miller v. Savage 

Services Corp., WEST 2014-404-DM (Apr. 30, 2015) (ALJ) [hereinafter Miller I]. 

The last of the bases raised by the Respondent is that the complaint in this matter fails to 

assert that an “adverse action actionable under the Mine Act was taken against Mr. Miller as a 

result of his protected activity.” More particularly, Savage maintains that “Mr. Miller was not 

suspended, discharged, disciplined, or even subjected to any undesirable change in his work 

assignments. . . . Harassment, standing alone, does not constitute an adverse action under the 

Mine Act.” Savage Motion at 11. Savage continues, stating that “[e]ven assuming for the sake of 

argument that Mr. Krass questioned Mr. Miller about his sexuality, and even assuming further 

that Mr. [Krass] did so in a harassing manner, that by itself is not ‘adverse’ activity actionable 

under the Mine Act.” Id. at 12. 

Savage concludes its argument with the assertion that “because Mr. Miller suffered no 

adverse action, there is no redressable injury in this case.” Id. at 13. Rhetorically, it then asks, 

“What relief could the Commission possibly offer to Mr. Miller when he was not suspended, 

discharged, disciplined, or subjected to undesirable work assignments? Nothing changed for Mr. 

Miller.” Id. 

The Court believes that adverse action can be established under allegations such as those 

contained in Miller’s Complaint. The Commission has tacitly recognized harassment as a standalone form of adverse action since its 1982 decision in Moses v. Whitley Development Corp., 4 

37 FMSHRC Page 1116
FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985), in which the Commission 

considered whether coercive interrogation and harassment may ever constitute a violation of 

section 105(c)(1). The Commission found that such actions do violate the Mine Act: 

Section 105(c)(1) states that “no person shall discharge or in any manner 

discriminate against . . . or otherwise interfere with the exercise of the statutory 

rights of any miner.” (Emphasis added.) We have previously noted the high 

priority Congress placed upon the unencumbered exercise of rights granted 

miners under the Mine Act. David Pasula v. Consolidation Coal Company, 2 

FMSHRC 2786, 2790 (October 1980), rev'd on other grounds sub 

nom, Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). As we 

concluded in Pasula, Congress viewed the free exercise of miners' rights as 

“essential to the achievement of safe and healthful mines.” 2 FMSHRC at 2790. 

Furthermore, it is clear that section 105(c)(1) was intended to encourage miner 

participation in enforcement of the Mine Act by protecting them against “not only 

the common forms of discrimination, such as discharge, suspension, demotion . . . 

, but also against the more subtle forms of interference, such as promises of 

benefit or threats of reprisal.” S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977) [“S. 

Rep.”], reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 624 (1978) [“Legis. Hist.”]. 

We find that among the “more subtle forms of interference” are coercive 

interrogation and harassment over the exercise of protected rights. A natural result 

of such practices may be to instill in the minds of employees fear of reprisal or 

discrimination. Such actions may not only chill the exercise of protected rights by 

the directly affected miners, but may also cause other miners, who wish to avoid 

similar treatment, to refrain from asserting their rights. This result is at odds with 

the goal of encouraging miner participation in enforcement of the Mine Act. We 

therefore conclude that coercive interrogation and harassment over the exercise of 

protected rights is prohibited by section 105(c)(1) of the Mine Act. 

Moses, 4 FMSHRC at 1478-79 (emphasis added). In that same decision, the Commission 

stated: 

Under section 103(g)(1) of the Act, Moses had the right to request an inspection 

and to do so anonymously. The persistence with which the subject of his supposed 

reporting of the bulldozer accident was raised and the accusatory manner in which 

it was done could logically result in a fear of reprisal and a reluctance to exercise 

the right in the future. These conversations thus constituted prohibited 

interference under section 105(c)(1). 

Id. at 1479. 

Shortly after Moses, the Commission added that, “[i]n general, an adverse action is an act 

of commission or omission by the operator subjecting the affected miner to discipline or a 

37 FMSHRC Page 1117
detriment in his employment relationship.” Sec’y of Labor on behalf of Jenkins v. Hecla-Day 

Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984); see also id. at 1848 n.2 (“This case does 

not require us to develop a more detailed inventory of what is covered by the term adverse 

action. We recognize that discrimination may manifest itself in subtle or indirect forms of 

adverse action.”). 

 Quoting Moses, the Commission has stated that “[w]hether an operator's question or 

comments concerning a miner's exercise of a protected right constitute coercive interrogation or 

harassment proscribed by the Mine Act ‘must be determined by what is said and done, and by the 

circumstances surrounding the words and actions.’” Sec’y of Labor on behalf of Gray v. N. Star 

Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005) (quoting Moses, 4 FMSHRC at 1479 n.8). 

Based on the foregoing, the Court believes that harassment resulting from engaging in 

protected activity is cognizable under the Mine Act. The essence of the problem regarding 

Miller’s section 105(c)(3) claim is that the protected activity that spawned his first complaint was 

raised during the hearing on his second complaint but the harassment attendant to that was not. 

The matters were not consolidated and, as a practical matter they could not be, given that the 

Secretary opted not to proceed with Miller’s first complaint but did take up the second 

complaint. 

Miller’s Response to Savage’s Motion for Summary Decision 

Pursuant to the Court’s conference call with the parties discussing Savage’s Motion for 

Summary Decision, the Court directed Mr. Miller to file a response to that motion. The response 

was minimal, as would be expected from a non-attorney complainant.4

 The Court acknowledges 

4 The full text of Mr. Miller’s response provided: 

As I am representing myself and I am not an attorney, consistent with the 

conference call, the Court does not expect me to supply a memorandum of points 

and authorities specifying why Savage is not entitled to summary decision. 

Although after the conference call on Wednesday I realized that I had commented 

on the wrong timeline of events. Now fully understanding the precise time frame 

of when the complaint was filed and to the fact of what the delay was. 

Claim #1 

It took me some time to see and recognize that there was a pattern being 

established as a result of my frequent Safety complaints. I felt that I was being 

singled out. On Record as Brian Hancock testified on pg. 354 lines 11- 22, states 

that I made 75 percent more complaints to the other drivers 25 percent. 

Claim #4 

I experienced sleeplessness, anxiety, weight gain, while trying to perform 

job duties. I did not understand, but now I see that there are no new facts to be 

presented to the court. 

(continued...) 

37 FMSHRC Page 1118
that Mr. Miller’s response was minimal, but concludes that, in context, summary decision would 

not be appropriate.5

Conclusion 

For the foregoing reasons, the Court DENIES Respondent’s Motion for Summary 

Decision. It is not as if Complainant Miller’s allegations about harassment have been 

characterized by Savage as being made out of whole cloth. Savage, while not conceding each 

aspect of Miller’s harassment contention, spoke to his claim at several points in its Motion. As it 

noted in that submission: 

At a deposition taken in the termination-related case, No. WEST 2014-

404-DM, Mr. Miller described “the crux of the discrimination” that took place in 

January 2013 as follows: “My supervisor – I felt my supervisor personally 

attacked me, asking – demanding if I was homosexual, if I batted for the other 

team, and so forth.” Exhibit C, at 75:17-22; see also Exhibit D (written statement 

by Mr. Miller dated March 4, 2013, submitted as an internal company complaint 

to the acting manager of the Morenci operation complaining about Mr. Krass 

harassing him about his sexuality). 

Savage Motion for Summary Decision at 3. Later, it quoted the following from Miller’s 

deposition by Savage about the matter: 

MILLER: I believe discrimination. 

Q: Okay. Who? 

MILLER: Isaiah Krass. 

Q: Okay. When did that discrimination that you’ve complained about occur? 

MILLER: On the 30th of January. 

Q: Okay. And what was the – the crux of the discrimination, as you perceive it? 

4

 (...continued) 

E-mail from Sean Miller, Complainant, to Daniel Wolff and Michael Small (Apr. 14, 2015, 

11:45 EDT). With reference to Mr. Miller’s last remark, that there are no new facts to be 

presented, this remark is disregarded. During the course of conference calls with the parties for 

this docket, which were recorded, Mr. Miller misunderstood other aspects of his complaint, but 

when the Court took the time to explain matters, he would then change his intention about 

continuing this litigation. In fact Mr. Miller’s same email response here contradicts his remark 

that he has no new facts, as he states experiencing “sleeplessness, anxiety, weight gain, while 

trying to perform job duties,” all of which would constitute new facts. This Order attempts to 

explain the facts about which Mr. Miller will testify in support of his claim of the harassment he 

experienced in connection with his safety complaint and with the ill-effects, if any, that he 

subsequently experienced both personally and in connection with interactions with fellow 

miners. 

5 The issue of a motion for a directed verdict at the conclusion of Mr. Miller’s evidence is 

matter to be resolved at a later time. 

37 FMSHRC Page 1119
MILLER: My supervisor – I felt my supervisor personally attacked me, asking – 

demanding if I was homosexual, if I batted for the other team, and so forth. . . . 

Exhibit C at 75:4-22; 78:4-16[.] 

Savage Motion at 9-10. 

Indeed, because of a written complaint to management that Mr. Miller submitted on or 

around March 4, 2013 (Exhibit D), Mr. Krass was issued a counseling statement of his own by 

the then acting Operations Manager, Richard Bjerke, instructing him not to repeat his behavior 

and warning him that if he acted in that manner again, it would be grounds for termination. See

Exhibit I; Savage Motion at 10. Krass was issued a counseling statement on March 5, 2013, in 

connection with his improper conversations between him (as a supervisor) and an employee 

(Miller). Ex. C-7 at 3-4, Miller I.

6

 Savage then concedes, “It is easy enough to understand how 

questioning a co-worker about his sexuality, regardless of motive, could create an uncomfortable 

work atmosphere, and for that reason it is easy to see why, from a company’s human resources 

perspective, such conduct should be discouraged, which is exactly why Savage Services issued 

Mr. Krass a counseling statement.” Savage Motion at 12 n.7. 

Beyond these remarks, tantamount to admissions, there is also Miller’s handwritten 

statement, dated March 4, 2013, about the incident. Ex. C-9 at 12-13, Miller I. The Court, by this 

Order, makes that admitted exhibit part of this case. 

As the Court observed on May 1, 2015, in response to an email from Savage’s Counsel: 

[It] would note that when Mr. Miller filed his first discrimination complaint, the 

special investigator recommended that the case go forward and this came about 

without Mr. Miller having been demoted or fired or some other thing along those 

lines. The Commission too, in several cases, has recognized that harassment, by 

itself, can be the basis for [] discrimination. Apart from the Commission’s 

remarks about this, [the Court] acknowledge[s] that damages, though 

ascertainable, would be in uncharted waters because decisions so far have 

involved harassment plus some other action taken against an employee. 

The hearing would be for Mr. Miller to have the opportunity to testify in detail 

about the circumstances surrounding and the nature of the harassment he alleges 

to have experienced and how that harmed him, financially and/or emotionally, if 

that is the case, and would also include, if alleged and so testified to under oath by 

Mr. Miller, any factor of intimidation making him reluctant to assert future safety 

or health concerns. Savage Services would then have the opportunity to rebut 

those claims, but bearing in mind that certain statements (effectively admissions) 

by Savage, could be construed as harassment towards Mr. Miller and, depending 

on Mr. Miller’s testimony, which harassment was linked with his safety 

complaint(s). 

 6

 In Savage’s Post-Hearing Brief, in connection with Miller’s complaint about bad brakes 

on a truck, it notes that Krass was disciplined for his statements to Miller despite disagreeing 

with the allegations. Savage Br. 32, Miller I. 

37 FMSHRC Page 1120
That said, as in any case, whether the Secretary is involved or, as in this case, not 

involved, there is nothing to prevent the parties from discussing between 

themselves a modest but fair settlement figure pertaining only to WEST 2014-7. 

For emphasis, [the Court] want[s] to remind the parties that any such settlement 

would be totally separate and apart from the damages associated with WEST 

2014-404. The cases are separate and distinct. What happens in one does not 

impact the other. Note that if the matter does go to hearing and [the Court] find[s] 

that discrimination occurred, the Secretary would then be obligated to seek a civil 

penalty for such violation of section 105(c)(3). 

Email from the Court to the parties (May 1, 2015, 12:59 EDT) (emphasis added). 

Accordingly, at the hearing, Mr. Miller will have the opportunity to testify in 

detail both as to the nature of his safety complaint and the harassment which he has 

asserted was leveled at him by Savage’s Mr. Krass. Further, Mr. Miller will have a full 

opportunity to express if that odious alleged harassment, directed at him by Krass, 

impacted and harmed him. Of course Savage will have the opportunity to establish, if it 

can, that the harassment had no impact upon Miller and otherwise to defend against the 

claim, with a goal, one would presume, of diminishing the claim that Miller was harmed 

by that harassment. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

 

37 FMSHRC Page 1121
Distribution: 

Daniel Wolff, Esq. 

Crowell & Moring LLP 

1001 Pennsylvania Avenue NW 

Washington, DC 20004 

Sean Miller 

15216 N. 11th Street 

Phoenix, AZ 85022 

Amy Poulson, Esq. 

6340 South 3000 East, Suite 600 

Salt Lake City, UT 84121 

37 FMSHRC Page 1122
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

May 4, 2015 

ORDER 

Before: Judge Feldman 

 The captioned consolidated proceedings are before me upon petitions for assessment of 

civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 

(“Mine Act”). 30 U.S.C. § 815(d). The five citations that are the subjects of the captioned civil 

penalty proceedings were all issued on February 1, 2012.1 These citations were issued to the 

same mine foreman, in the same part of the mine, on the same day, and by the same inspectors. 

In the interest of judicial economy, and the Commission’s limited resources, these civil penalty 

matters were stayed on March 12, 2014, based on the parties’ representation that the Secretary 

had initiated an investigation to determine whether a personal liability case should be brought 

pursuant to the provisions of section 110(c) of the Mine Act. The stay was to be lifted upon 

completion of the Secretary’s investigation. 

 

 1

 Citation Nos. 8120978, 8148651, 8148652, 8151811, and 8151812, are also the subjects 

of contest Docket Nos. WEVA 2012-720-R, WEVA 2012-721-R, WEVA 2012-722-R, WEVA 

2012-723-R, and WEVA 2012-724-R. These contest proceedings were dismissed as moot on 

April 29, 2015, because they were superseded by the captioned civil penalty proceedings. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

SPARTAN MINING COMPANY, LLC, 

 Respondent. 

 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2013-109 

A.C. No. 46-01544-285119-02 

Docket No. WEVA 2012-1373 

A.C. No. 46-01544-290889-01 

Docket No. WEVA 2012-1746 

A.C. No. 46-01544-298372 

Mine: Road Fork #51 

37 FMSHRC Page 1123
As noted by Judge Tureck: 

Section 105(a) of the Act provides that “[i]f, after an inspection or investigation, 

the Secretary issues a citation or order under section 104, he shall, within a 

reasonable time after the termination of such inspection or investigation, notify 

the operator ... of the civil penalty proposed to be assessed ... for the violation 

cited ....” (Emphasis added.) Section 110(c) is silent regarding when an 

individual respondent must be notified of a proposed penalty assessment. 

However, since penalty assessments against individuals brought under § 110(c) 

arise from the same inspections as penalty assessments against operators, it would 

logically follow that the reasonable time requirement of § 105(a) should apply to 

penalty assessments brought under § 110(c). 

Sec’y v. Christopher Brinson, et al., employed by Kentucky-Tennessee Clay Co., 35 FMSHRC 

1463, 1465 (May 2013) (ALJ) (citations omitted). 

 In Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005), the court 

held that the “reasonable time” processing guidelines in section 105(a) of the Mine Act are 

intended to “spur the Secretary to action,” rather than to routinely confer rights on litigants that 

will limit the scope of the Secretary’s authority. However, the Secretary’s permissible 

procrastination is not without its limits. Significantly, even the Secretary has identified the 

parameters for satisfying the “reasonable time” provision contemplated by section 105(a). In this 

regard, MSHA’s Program Policy Manual provides: 

Investigative timeframes have been established to help ensure the timely 

assessment of civil penalties against corporate directors, officers, and agents. 

Normally, such assessments will be issued within 18 months from the date of 

issuance of the subject citation or order. However, if the 18 month timeframe is 

exceeded, TCIO will review the case and decide whether to refer it to the Office 

of Special Assessments for penalty proposal. In such cases, the referral 

memorandum to the Office of Special Assessments will be signed by the 

Administrator. 

I MSHA, U.S. Dep’t of Labor, Program Policy Manual, § 110(c) (2012). 

Thus, even the Secretary has acknowledged that completion of section 110(c) 

investigations must be timely accomplished. In these matters, more than enough time has elapsed 

in that the Secretary has had more than three years (approximately 38 months) since the February 

2012 issuance of the subject citations to complete his relevant 110(c) investigation. 

37 FMSHRC Page 1124
Accordingly, IT IS ORDERED that the Secretary, within 90 days from the date of this 

Order, initiate a relevant 110(c) proceeding, or, alternatively, advise the undersigned that, based 

on his investigation findings, the Secretary has declined to bring any relevant 110(c) actions.2

 At 

such time, the stay in the captioned civil penalty matters will be lifted and the civil penalty 

matters will be scheduled for hearing. The failure to provide the results of the relevant 110(c) 

investigation within 90 days from the date of this Order will result in the dismissal of the 

captioned civil penalty proceedings for failure to prosecute. 

/s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: (Regular and Certified Mail) 

Anthony Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, 

Suite 420, Nashville, TN 37219-1823 

W. Christian Schumann, Esq., U.S. Department of Labor, Office of the Solicitor, 

1100 Wilson Blvd., Room 2220, Arlington, VA 22209 

Noah AnStraus, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, 170 

S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106 

Jason M. Nutzman, Esq., Dinsmore & Shohl LLP, 900 Lee Street, Suite 600, Charleston, WV 

25301 

/acp 

 2

 The Secretary can provide notification of the status of the relevant 110(c) investigation 

to my law clerk, Avery Peechatka, at apeechatka@fmshrc.gov or (202) 233-4010. 

37 FMSHRC Page 1125
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 

May 8, 2015 

 

ORDER TERMINATING TEMPORARY REINSTATEMENT

Before: Judge Moran 

 Respondent California Rock Crusher Corporation (“California Rock”) has filed a motion 

seeking an order terminating Complainant miner Fredrick Abrams’ temporary economic 

reinstatement. For the reasons which follow, the Court terminates Fredrick Abrams’ temporary 

economic reinstatement, retroactively effective to the end of the business day on Friday, May 1, 

2015. 

Respondent’s Motion relates that California Rock provided and operated two articulating 

hauling trucks to move material at an open pit sand and gravel mine owned by CEMEX. It 

continues, stating that “[o]n Friday, April 24, 2015, CEMEX notified California Rock Crusher 

Corp. that effective the next Friday, May 1, 2015, at the end of the business day CEMEX was 

terminating Cal Crush’s services because CEMEX was then in a position to operate its own 

trucks with its own drivers.” 

In support of its motion, California Rock’s Motion provides the following salient 

information1

: that its business is located in Ripon, California; that it hired drivers from the RenoSparks, Nevada, area to work at CEMEX’s sand and gravel mine; that except for one employee, 

none of those drivers who were permanently laid off had ever worked for the Company in 

California in the past; that, except for that one driver, none of the other drivers, including 

Abrams, has a Class A license; that the only other drivers who work for California Rock are 

located in California and those drivers all have Class A licenses to operate over-the-road trucks; 

that Respondent did not transfer any employees from California to Nevada; that it does not have

 1 The information, capsulized here without distortion by the Court, is essentially taken 

from the Motion, as amended by the subsequent email statement by Respondent’s Counsel dated 

May 6, 2015. Respondent contends that the amended statement, disclosing that one driver had 

worked for the Company in California and has a Class A license, supports its position, on the 

basis that as it did not offer another position to that driver who had worked for it in California 

and who has a Class A license, it certainly wouldn’t have offered Abrams another position. 

SECRETARY OF LABOR 

 U.S. DEPARTMENT OF LABOR on 

 behalf of FREDRICK ABRAMS, 

 Complainant, 

 v. 

CALIFORNIA ROCK CRUSHER CORP., 

 Respondent. 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEST 2015-551-DM 

MSHA Case No. WE-MD-15-06 

Mine: CEMEX-Paiute Pit Mine 

Mine ID: 26-00789 

37 FMSHRC Page 1126
any driver positions that are open; that the drivers who were on the CEMEX job on May 1, 2015, 

were permanently laid-off with no reasonable expectations of recall; that the Respondent will 

soon be transporting the two articulating hauling trucks to its headquarters in Ripon, California; 

that it does not have any work in Nevada, nor does it have any work scheduled in Nevada; that 

the two articulating hauling trucks at the CEMEX site are the only two that the Company owns; 

and that there currently isn’t any work for those trucks and if the Company does not obtain work 

for those trucks they will be sold. 

On the basis of its Motion, the supporting declaration, and exhibits to that declaration, 

California Rock Crusher Corp. requests that its motion to terminate the order approving 

settlement be granted on the basis that it has discharged its obligations under the settlement. 

 In its May 6, 2015, Response to the Motion, the Secretary advised that it “does not take a 

position on Respondents motion other than to note that Respondent must show by a 

preponderance of the evidence that work is not available for the complainant.” It adds that “if the 

Court finds that Respondent has met this burden the proper relief would be to toll the economic 

reinstatement pending the resolution of the underlying discrimination complaint rather than 

terminate the economic reinstatement entirely . . . [on the grounds that, per an email attachment 

to the Respondent’s motion from Anthony Beato of California Rock Crush,] Respondent is 

looking for work to employ the Articulating Hauling Trucks that complainant drove.” The 

Secretary contends that “[i]f such new projects are obtained then complainant would be entitled 

to reinstatement as a truck driver on those projects.” 

Discussion 

As the Commission stated in Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 

1054 (Oct. 2009), “a temporary reinstatement order [does not] require[] a miner to be employed 

under any circumstance, regardless of changes that occur at the mine after issuance of the 

temporary reinstatement order.” Instead, it noted “that the occurrence of certain events, such as a 

layoff for economic reasons, may toll an operator’s reinstatement obligation or the time for 

which an operator is required to pay back pay to a discriminatee.” Id. (citing Simpson v. Kenta 

Energy, Inc., 11 FMSHRC 1638, 1639 (Sept. 1989) (holding that back pay is due to a 

discriminatee from the date of the unlawful discharge until the time of reinstatement or “the 

occurrence of an event tolling the reinstatement obligation”); Wiggins v. E. Assoc. Coal Corp., 7 

FMSHRC 1766, 1772-73 (Nov. 1985) (concluding that back pay award ended upon date of 

layoff)). 

It noted with approval the reasoning of a Commission Judge expressing that “if business 

conditions result in a reduction in the work force the right to back pay is tolled because a 

discriminatee is entitled to back pay only for the period during which he would have worked but 

for the unlawful discrimination.” Casebolt v. Falcon Coal Co., Inc., 6 FMSHRC 485, 499 (Feb. 

1984) (ALJ). 

 

“Commission precedent recognizes that a change in circumstances may be relevant to 

tolling economic reinstatement in a temporary reinstatement proceeding.” Gatlin, 31 FMSHRC 

at 1054 (citing Sec’y of Labor on behalf of Shepherd v. Sovereign Mining Co., 15 FMSHRC 

37 FMSHRC Page 1127
2450 (Dec. 1993) (remanding to Judge to determine effect of operator’s layoff on Judge’s 

temporary reinstatement order)). The Commission then held that “the Judge erred in concluding 

that a miner must remain temporarily reinstated notwithstanding changing circumstances at the 

mine.” Id.

 

The Commission has also recognized in remedial contexts that an operator has the burden 

of establishing “facts which would negative the existence of [back pay] liability to a given 

employee or which would mitigate that liability.” Simpson v. Kenta Energy, Inc., 11 FMSHRC 

770, 779 (May 1989) (citations omitted). The Commission has stated that, “[s]pecifically, the 

burden of showing that work was not available for a discriminatee, whether through layoff, 

business contractions, or similar conditions, lies with the employer as an affirmative defense to 

reinstatement and backpay.” Id. In such circumstances, the operator must make such a showing 

by a preponderance of the evidence. Id.

So too, in Sec’y of Labor on behalf of Ratliff v. Cobra Natural Resources, 35 FMSHRC 

394, 396 (Feb. 2013), the Commission observed that it has “permitted a limited inquiry to 

determine whether the obligation to reinstate a miner may be tolled.” It also “recognized that ‘the 

occurrence of certain events, such as a layoff for economic reasons, may toll an operator’s 

reinstatement obligation.’” Id. (quoting Sec’y of Labor on behalf of Shemwell v. Armstrong Coal 

Co., 34 FMSHRC 996, 1000 (May 2012)). Thus, it agreed that a judge may consider whether a 

layoff tolls reinstatement obligations. Accordingly a judge should “consider evidence offered by 

an operator seeking to affirmatively show that reinstatement should be tolled because of a layoff 

due to business contractions or similar conditions. . . . An operator generally must affirmatively 

prove that a layoff justifies tolling temporary reinstatement by a preponderance of the evidence.” 

Id. at 397 (citations omitted). In the circumstances of a layoff, “the operator must demonstrate 

that ‘the layoff properly included’ the miner who filed the complaint of discrimination.” Id.

(quoting Gatlin, 31 FMSHRC at 1055). If there are facts to support it, the Secretary in turn may 

“assert that the miner’s inclusion in the layoff was, or might have been, related to protected 

activity engaged in by the miner.”2 Id. 

 2 Not applicable here is any claim that the objectivity of the layoff as applied to the 

miner should be evaluated as a potentially wrongful adverse action itself. 

37 FMSHRC Page 1128
Upon consideration, the Respondent’s Motion is GRANTED. The Secretary has taken no 

position on the Respondent’s Motion, nor has it contested the facts presented in that Motion. 

Commission precedent clearly recognizes that the word “temporary” in temporary reinstatement 

encompasses situations which make continued employment or, as here, economic employment, 

subject to termination upon the occurrence of certain events, such as a layoff. Certainly, 

temporary reinstatement is not a ticket to continued nationwide employment. The undisputed 

facts here warrant not mere tolling but cessation of the temporary economic employment. 

California Rock is no longer doing business for CEMEX in the Reno-Sparks Nevada area and, 

given that state of affairs, its temporary employment obligations ended when that occurred at the 

end of the business day on Friday, May 1, 2015. 

SO ORDERED. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

 

Fredrick Abrams, P.O. Box 1013, Verdi, NV 89439 

Boris Orlov, Esq., Senior Trial Attorney, U.S. Department of Labor, Office of the Solicitor, 350 

S. Figueroa Street, Suite 370, Los Angeles, CA 90071 

John H. Feldmann, III, California Rock Crusher Corporation, P.O. Box 775, 339 Doak 

Boulevard, Ripon, CA 95366 

37 FMSHRC Page 1129
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 

May 22, 2015 

AMENDED1

 ORDER ON RESPONDENT’S MOTION TO DISMISS 

COMPLAINANT’S FIRST AMENDED COMPLAINT 

Before: Judge Moran 

Before the Court is Respondent Veris Gold’s Motion to Dismiss First Amended 

Complaint. (“Motion”). The Motion contends that the First Amended Complaint “seeks to add a 

litany of new allegations.” Complainant filed an Answer to the Motion. Complainant’s original 

discrimination complaint, dated November 22, 2013, names seven (7) individuals,2 together with 

their respective job titles, as responsible for the alleged discriminatory action. A narrative 

accompanied that complaint. That narrative speaks in broad terms, with Mr. Lowe alleging that 

he was “continuously discriminated in matters of safety and health as well as in matters of 

regulatory compliance [and that these] came in the form of constant threats of reprisal by 

members of senior management and/or corporate officers.” Complaint of Nov. 22, 2013, at 2. 

 At the outset of this Order it is important to note that even if the Amended Complaint 

were to be rejected in whole, the original complaint remains intact and unaffected. Put 

differently, this Order only determines if additional claims may be added to the original 

complaint. For the reasons discussed below, the Court partially grants and partially denies 

Respondent’s motion. 

Citing Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991), Respondent 

contends that Lowe’s First Amended Complaint “constitute[s] a theory of the case that MSHA

 1

 This amended order is being issued to correct the caption of the original order, which 

incorrectly listed the Secretary of Labor as the Petitioner in this matter rather than Mr. Lowe as 

the Complainant. 

2

 The names listed in Mr. Lowe’s discrimination complaint are: Kiedock Kim, Mill 

Manager; Chris Jones, Assistant Mill Manager; Graham Dickson, Chief Operating Officer; 

William Hofer, General Manager; Francois Marlan, President/CEO/Director; Barry Goodfield, 

Director; and Dwayne Ward, Human Resources Manager. 

DANIEL B. LOWE, 

 Complainant, 

 v. 

VERIS GOLD USA, INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

37 FMSHRC Page 1130
had not previously investigated.” Motion at 4. In Hatfield, the Commission noted that the 

complaint filed by the pro se miner was 

general in nature and alleges no specific protected activities. The present record 

contains no indication that the matters alleged in the amended complaint were part 

of the case reported to and investigated by MSHA. Nor is there evidence in the 

record that the Secretary’s determination that the Act had not been violated was 

based on matters contained in the amended complaint. If the Secretary’s 

determination was based upon an investigation that 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.” 

Hatfield , 13 FMSHRC at 546 (emphasis added). The Commission went on to state that the 

“complainant should be afforded an opportunity to demonstrate that the protected activities 

alleged in the amended complaint were part of the matter that was investigated by the Secretary 

in connection with [the pro se complainant’s] initial discrimination complaint to MSHA.” Id. 

Hatfield remains the operative precedent. 

Veris lists five allegations made by Lowe which it contends were not previously 

investigated by MSHA. These will be discussed in turn. 

“A. Allegations that in March 2013, Randy Reichert, a corporate official whose 

employment was terminated by Veris on May 7, 2013, had a dispute with Lowe arising from 

another dispute between two industrial hygienists over sampling methods and mercury exposure 

calculation methods.” Motion at 3. These allegations appear in numbered paragraph 8 in Lowe’s 

First Amended Complaint. Lowe asserts that Reichert’s behavior in relation to this matter 

amounted to acts of discrimination related to safety and health. 

Lowe asserts that there was no dispute between the hygienists and that it was merely a 

miscommunication,3

 but, more importantly, Lowe asserts that Mr. Randy Reichert wanted him to 

fire hygienist Garcia because of the miscommunication, but that he refused to fire the hygienist 

without first conducting a proper investigation into the matter. Answer at 2. Complainant’s 

Answer then goes into matters before a court in British Columbia involving Reichert’s 

termination from Veris Gold. Answer at 2-3. 

The fundamental problem with Lowe’s Answer is that it does not address the central 

question for the Court, namely whether the Secretary’s determination was based upon an 

investigation which included consideration of the matter raised in paragraph 8. As Lowe makes 

no reference to this issue in his Answer, the Court must conclude that Complainant has failed to 

meet the statutory prerequisite to demonstrate that the protected activities alleged in the amended 

complaint were part of the matter that was investigated by the Secretary in connection with his 

initial discrimination complaint to MSHA. Therefore the Court sustains Veris’ motion regarding 

this amendment and dismisses item A. 

 3

 Mr. Lowe’s Answer is lengthy but not useful to applying the test for evaluating 

amended complaints, per Hatfield.

37 FMSHRC Page 1131
“B. Allegations that Randy Reichert “went on a bizarre tirade” in May 2013 while Lowe 

was attempting to explain to him the particulars of an MSHA inspection.” Motion at 3. These 

allegations appear in numbered paragraph 9 in the First Amended Complaint. “Lowe believes 

that Mr. Reichert was terminated by Veris for violent outbursts at trade shows and other 

‘incidents of inexplicable rage’ . . . [and] that the “tirade” by Mr. Reichert amounted to 

discrimination in relation to safety and health.” Id. The only connection with the original 

complaint, is a remark that complainant reported the incident to Bill Hofer, the mine’s general 

manager. 

 On its face, this allegation was not raised before MSHA in Complainant’s November 

2013 complaint. Further, Complainant makes no response to Veris’ observation that Reichert’s 

name does not appear anywhere in the complaint. Although this is dispositive of item B, for the 

same reason given for item A, it is also noted that Veris, by Complainant’s admission, terminated 

Reichert’s employment shortly thereafter and that no adverse action was experienced by Lowe. 

In fact, Lowe, who threatened to quit after the Reichert incident was “talked into staying” as a 

Veris employee. Accordingly, because Lowe failed to meet the Hatfield test for item B, it is also 

dismissed from the First Amended Complaint. 

C. This item involves allegations that, in late July, 2013, Veris general manager Joe 

Driscoll informed Complainant that his job title was going to be changed and that he would no 

longer be the designated company representative during MSHA inspections. These allegations 

appear in numbered paragraphs 10-12 in the First Amended Complaint. Complainant believes 

this was the onset of the decision to abolish the mine’s safety department. It includes allegations 

that there was an arrangement between an MSHA supervisor and Mr. Driscoll that if MSHA 

would “back off” at the mine, Lowe would be removed from contact with MSHA. Complainant 

then relates that he was thereafter demoted by Driscoll to the position of “Compliance 

Coordinator.” As Veris capsulizes this contention, “Lowe speculates that this may have borne a 

relationship to some type of covert arrangement between Driscoll and an MSHA inspector to 

remove Lowe from his position in order to obtain less stringent treatment by the agency. Lowe 

asserts that was an act of discrimination.” Motion at 3. 

 The problem with Lowe’s Answer for Item C is the same as for Items A and B. That 

Answer largely repeats the allegations made in the First Amended Complaint but it does not 

anywhere inform that those allegations were among those presented to MSHA when the original 

complaint was filed on November 22, 2013, and therefore it fails to satisfy the test in Hatfield. 

Mr. Driscoll’s name does not appear among the seven listed individuals in the original complaint 

filed with MSHA. Nor is this obstacle solved by Complainant’s additional remark in his Answer 

that 

in his appeal letter to the Commission one Page #1, Paragraph #2, “For 

approximately six months leading up to my dismissal Veris Gold USA Inc. senior 

management interfered with my responsibilities and position as the Mine Safety 

and Regulatory Compliance Manager in matters of safety, health and regulatory 

compliance to include dismantling the Safety Department effectively demoting 

37 FMSHRC Page 1132
me and my position.[”] The Complainant believes in fact these actions constitute 

discrimination under section 105 of the Mining Act. 

Answer at 7. 

 Absent the Complainant producing dated documentation that he made these allegations to 

MSHA during the course of its investigation and well prior to MSHA’s April 4, 2014, letter to 

Lowe, declining to file a discrimination complaint on his behalf, this allegation cannot be 

considered as part of the Complaint. Again, in circumstances where the Secretary’s 

determination is based upon an investigation that did not include consideration of the matters 

contained in the amended complaint, the statutory prerequisites for a complaint pursuant to § 

105(c)(3) are not met and such additional claims cannot be heard. 

D. Lowe alleges that his termination on November 21, 2013, may have been in relation 

to “the two safety and health complaints” he made by email to Chief Operating Officer, Graham 

Dickson on November 19, 2013, and that it was on November 21, 2013, that Dwayne Ward 

informed the Complainant of his termination. Lowe asserts that no reason was given for the 

“official termination.” The Complainant believes this was an act of discrimination. This 

allegation appears in numbered paragraph 14 in the First Amended Complaint. The problem with 

Veris’ Motion to Dismiss for this item is that it elides the substance of this allegation. In his very 

broad complaint before MSHA, Lowe did name both Mr. Dickson and Mr. Ward among the 

persons responsible for the discriminatory action. Therefore, the investigation may be presumed 

to include all acts associated with that claim. In contrast to Veris’ defense to Items A through C, 

it makes no claim in its Motion to Dismiss that those individuals were not referenced in the 

Complaint before MSHA. Accordingly, this part of the First Amended Complaint is allowed. 

Thus, dismissal is not warranted for this claim. Especially considering the substance of this 

allegation, Veris can hardly maintain that its inclusion would result in unfair prejudice to it. 

E. The last item in Lowe’s First Amended Complaint appears in numbered paragraph 8. 

There, Lowe seeks “an order assessing a $20,000.00 civil penalty against the Respondent for the 

violations of Section 105 (c) of the Act [and] [f]or an order compelling the Secretary of Labor to 

investigate and to institute either civil or criminal proceedings or both against the Respondent for 

violations of §108 (b) and §110 of the mining Act of 1977.” 

 Veris does not address this item and for good reason. Neither of these demands are within 

the Court’s jurisdiction. If Lowe prevails on his section 105(c)(3) claim, only then will the 

Secretary be obligated to seek a civil penalty, but this is clearly premature at this point. Further, 

the Court does not have the authority to direct the Secretary to institute proceedings against the 

Respondent for violations of §108 (b) and §110 of the mining Act of 1977. Accordingly, this 

item from the Amended Complaint is dismissed.4

 4

 The Court has considered Veris’ claims that the items in the First Amended Complaint 

are procedurally defective as they are outside of the 60 day time period. Those claims are 

rejected. 

37 FMSHRC Page 1133
Conclusion 

 As set forth above, other than Item D, the remaining items, A, B, C, and E, as listed in 

Complainant’s First Amended Complaint, are DISMISSED. The original Complaint, however, 

stands, with Item D added to the original Complaint. 

SO ORDERED. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Daniel B. Lowe, P.O. Box 2608, Elko, Nevada 89801 

David M. Stanton, Esq., Goicoechea, Di Grazia, Coyle & Stanton, Ltd., 530 Idaho Street, Elko, 

Nevada 89801 

37 FMSHRC Page 1134
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

May 22, 2015 

 

ORDER GRANTING IN PART & DENYING IN PART 

THE SECRETARY’S MOTION FOR A PROTECTIVE ORDER 

Before: Judge Miller 

 These cases are before me as a result of a contest filed by Pocahontas Coal Company and 

a petition for assessment of a civil penalty filed by the Secretary pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977. These cases are part of a large number of dockets 

that are related to the notice of pattern of violations (“NPOV”) received by Pocahontas in 

October, 2013 and the subsequent 104(e) enforcement documents issued at the Affinity Mine. 

The parties have engaged in discovery in all of the dockets related to the NPOV, including 

written discovery and depositions. On two earlier occasions the parties brought discovery 

disputes before the Court, both of which primarily involved questions regarding the need for, and 

scope of, depositions. Pocahontas has determined that it needs further information about the 

decision to issue the NPOV at the mine and, as a result, served a notice to the Secretary for the 

deposition of a number of the Secretary’s attorneys. On April 13, 2015, the Secretary filed a 

Motion for Protective Order after receiving the notice and Pocahontas filed a Response in 

Opposition to the motion on April 16, 2015. 

The Secretary represents that, after Pocahontas completed the deposition of Kevin 

Stricklin, Administrator for Coal Mine Safety & Health, it served a formal notice of deposition 

POCAHONTAS COAL COMPANY, INC., 

Contestant, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

Respondent. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 CONTEST PROCEEDING 

Docket No. WEVA 2014-395-R 

Order No. 3576153; 12/19/13 

Mine ID: 46-08878 

Mine: Affinity Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2014-1028 

A.C. No. 46-08878-350475 

v. 

POCAHONTAS COAL COMPANY, INC., 

Respondent. 

 

Mine: Affinity Mine 

37 FMSHRC Page 1135
upon the Secretary seeking to depose Heidi Strassler, Associate Solicitor for Mine Safety and 

Health, Jason Grover, Trial Counsel for the Mine Safety and Health Division of the Office of the 

Solicitor, Douglas N. White, Associate Regional Solicitor for the Arlington Regional Office of 

the Solicitor, and Robert S. Wilson, MSHA Counsel for the Arlington Regional Office of the 

Solicitor at an agreed upon date. The notice also requested each deponent to bring certain 

documents to aid in their testimony. The Secretary objected to providing any of the attorneys for 

deposition and filed this Motion for Protective Order. 

After the motion was filed and all written responses were received, the parties 

participated in a conference call with the Court to discuss the issues and determine if a resolution 

could be reached regarding the motion. Following discussion and argument, it was determined 

that a resolution could not be reached, and that the Secretary could not provide a non-attorney to 

supply the information sought by Pocahontas. The information discussed during the conference 

call was transcribed and a copy provided to the parties. In issuing this order, I rely not only upon 

the motions filed, but also information learned during the conference call, as well as information 

in the case file, including two motions for summary decision and their attachments, a number of 

which are depositions. For reasons set forth below, I GRANT in part and DENY in part the 

Secretary’s motion and allow discovery with restrictions. 

I. BACKGROUND 

 On October 24, 2013 MSHA issued Written Notice No. 7219153 (the “NPOV,” or the 

“notice”) in which it notified Pocahontas that an alleged pattern of violations existed at 

Pocahontas’ Affinity Mine. Subsequently, MSHA issued multiple 104(e) orders to the mine, 

based upon the NPOV. In challenging the “e” orders, Pocahontas also challenges the validity of 

the NPOV. The depositions sought in this case primarily relate to the issuance of the notice. 

Over the years the Secretary has promulgated several rules regarding the Mine Act’s 

pattern of violations provision and, in March 2013, implemented the current rule. 30 C.F.R. § 

104. The rule provides that, at least once each year, MSHA will review the compliance and 

accident, injury and illness records of mines to determine if any mines meet the pattern of 

violations criteria. The eight criteria to be addressed during the review are listed in the standard. 

MSHA initially performs a computer generated screening of its database using two sets of 

“screening criteria” that are related to the standard and are detailed on the MSHA website. These 

screening criteria, which address the number and types of violations at mines, speak to the first 

six of the eight criteria named in section 104.2. A mine must meet the screening criteria on 

MSHA’s website in order to be considered for the issuance of a NPOV. Here, the screening was 

conducted in September 2013 and included information and data for nearly 14,000 mines for a 

review period from September 1, 2012 through August 31, 2013. As a result of the initial 

screening, three mines, including the Pocahontas Affinity Mine, were chosen for further review 

to determine if the criteria for a pattern of violations were met. 

Once a mine meets the initial screening criteria, the district manager for the district in 

which the mine is located is notified that the mine has met the screening criteria. Subsequently, 

the district manager notifies the mine that it is being considered for a notice of pattern of 

violations. In this case, the Affinity Mine was notified of its potential for a NPOV by David 

37 FMSHRC Page 1136
Mandeville, the District Manager for District 4. Mandeville met with the mine and, after the 

meeting, the mine provided a written response outlining why it should not be considered for a 

NPOV. Following the meeting, and after receipt of the letter from Pocahontas, Mandeville 

completed a mitigating circumstances form and submitted it to the MSHA POV review panel for 

a review of the mitigating circumstances. 

The MSHA POV panel, in its review, is charged with addressing the final two criteria 

listed in the mandatory standard, which are, other information that demonstrates a serious safety 

or health management problem at the mine, and mitigating circumstances. 30 C.F.R. §§ 104.2 (7) 

and (8). Here, the panel, which was chaired by Jay Mattos, the Director of the Office of 

Assessments, Accountability, Special Enforcement and Investigation, conducted its review and 

generated a memo listing the panel’s findings. The memo was sent to Kevin Stricklin, the 

Administrator for Coal Mine Safety and Health, and advised Stricklin that the panel 

recommended that Pocahontas be placed on a pattern of violations. Stricklin then determined 

that, given the initial screening and the subsequent findings of the POV panel, in his discretion, 

the mine should receive a NPOV. However, at some point prior to Stricklin’s final decision, the 

body of the notice was drafted with two lists of citations and orders that make up the two alleged 

patterns of violations included in the NPOV. Stricklin next sent the NPOV, along with a cover 

letter, to the district office to present to the mine in order to notify the mine that it had been 

placed on a pattern of violations and, thereafter, inspections would be conducted as required by 

the Act’s pattern of violations provision and the Secretary’s regulations implementing the 

provision. 

 Based upon the Secretary’s regulations and procedures identified on MSHA’s website, as 

well as the record before me in this case, there are three distinct levels to determining whether a 

mine is subject to a NPOV. First, MSHA conducts a purely quantitative data review of all mines 

in the country. Second, the POV review panel conducts a review of the mitigating circumstances 

and other factors, and, based on that review, makes a recommendation to the appropriate MSHA 

Administrator. Third, and finally, the appropriate Administrator conducts a final review of the 

materials presented to him, determines if a pattern is shown, and ultimately decides if a pattern is 

demonstrated by the citations and orders detailed in the proposed notice. 

I find that a mine operator may challenge the validity of a NPOV in at least two ways. 

First, an operator may challenge the NPOV by establishing that, at one or more of these three 

levels, the Secretary engaged in an abuse of discretion. Second, the operator may challenge 

whether the citations and orders identified in the NPOV properly describe a pattern of violations. 

The depositions sought here are primarily for the purpose of determining whether the agency 

abused its discretion when selecting the citations and orders listed in the body of the notice of 

pattern violations, and categorizing those citations and orders into groups which allegedly 

demonstrate two patterns of violations; one related to roof control and one related to emergency 

preparedness. 

 In this case, the mine operator propounded interrogatories to the Secretary, deposed Jay 

Mattos about the screening criteria and the POV panel, and deposed both the district manager, 

David Mandeville, and the assistant district manager, David Morris, about the mitigating factors, 

their involvement in the process, and the preparation and presentation of the POV letter to the 

37 FMSHRC Page 1137
mine. Finally, the mine deposed Kevin Stricklin, the Administrator for Coal, regarding the entire 

POV process, including the selection of the 42 citations and orders named in the NPOV and the 

grouping of those enforcement documents into two patterns. Mattos, Mandeville and Morris each 

stated in their depositions that they were not involved in the final step of the process that 

included selecting and grouping the 42 enforcement actions. Stricklin conducted the ultimate 

review and decision to issue the NPOV, and he was involved in the selection of the 42 citations 

and orders only after the attorneys for the Solicitor’s office chose which of the enforcement 

actions to include and in what categories. Stricklin, in his deposition, explained that a CLR and 

field office supervisor may have been involved in the selection and grouping of the enforcement 

actions listed in the NPOV but, primarily, the selection was made by attorneys in the Office of 

the Solicitor. During a conference call with the parties, the Secretary confirmed that the selection 

was made by attorneys from the Office of the Solicitor, and asserted that taking the deposition of 

the “point person” in the MSHA district office, who was either the CLR or the field office 

supervisor, would not yield any useful information about the selection of the 42 enforcement 

actions. The depositions sought by Pocahontas are aimed at discovering the facts surrounding the 

selection and grouping of the 42 enforcement actions listed in the NPOV. That selection and 

grouping was conducted not by an MSHA employee, but by an attorney for the Solicitor’s office. 

II. PARTIES’ ARGUMENTS 

The Secretary, in his motion for protective order, argues that Pocahontas’ proposed 

depositions exceed the scope of discovery and improperly seek to discover privileged 

information. The Commission’s procedural rules limit discovery to relevant, non-privileged 

materials. Deposing opposing counsel is strongly disfavored and, here, the information sought 

regarding how the citations and orders listed in the NPOV were selected is not relevant to the 

validity of the NPOV. Rather, the validity of the NPOV depends solely on whether the violations 

listed in the notice establish a pattern of violations, and does not depend upon the process the 

agency went through to select those violations. Moreover, any of the desired information that 

could be obtained from the attorneys would necessarily inquire into the thought processes and 

opinions of those individuals and, accordingly, is protected by the deliberative process privilege. 

Further, the documents, memoranda and email that Pocahontas seeks to have the named 

individuals produce are tangible things that were prepared in anticipation of litigation by MSHA 

and the Office of the Solicitor, and are therefore protected under the work product rule. Finally, 

the Secretary argues that the attorney client privilege protects the communications between 

MHSA and the Office of the Solicitor regarding the review of facts and data when weighing 

whether to issue the NPOV, all of which was done in anticipation of this litigation. 

Pocahontas, in its response in opposition, states that, during the deposition of Stricklin, it 

learned that attorneys from the Office of the Solicitor had factual knowledge as to why MSHA 

issued the NPOV and, as a result, it must be allowed to depose the attorneys named in the notice 

of deposition. There is no prohibition against deposing opposing counsel when that counsel has 

engaged in fact finding. Here, the information sought by Pocahontas from the attorneys, facts 

regarding what was utilized in the selection and grouping of the 42 enforcement actions in the 

NPOV, is relevant because it goes to the larger issue of the validity of the NPOV. Moreover, as 

made clear by the depositions of MSHA personnel, there are no other means to obtain this 

information other than to depose opposing counsel. The information sought is crucial to the case 

37 FMSHRC Page 1138
given that it goes directly to the issue of the validity of the NPOV and the question of whether its 

issuance was arbitrary and capricious. Pocahontas argues that the information it seeks is purely 

factual, does not involve opinions, recommendations or deliberations between the Office of the 

Solicitor and its client, MSHA, and, as a result, is not protected by the deliberative process 

privilege. Additionally, even if the attorney work product rule protects the additional materials 

requested of the potential deponents, Pocahontas has a substantial need for those materials given 

that the attorneys are the only individuals who possess that factual knowledge. Further, the 

attorney client privilege does not protect the attorneys from deposition given that they have made 

themselves fact witnesses and the information sought by Pocahontas does not involve a protected 

communication between attorney and client. In the alternative, Pocahontas argues that the 

Secretary has waived both the work product rule and attorney client privilege through the 

previous disclosure of emails related to the NPOV and Stricklin’s deposition testimony that 

individuals from the Solicitor’s office have knowledge as to the 42 enforcement actions and the 

categories identified in the NPOV. 

III. ANALYSIS 

I find that the factual information sought by Pocahontas is relevant to the case and falls 

within the proper scope of discovery in these proceedings. Pocahontas has raised the issue of 

whether the Secretary abused his discretion in issuing the NPOV to the Affinity Mine and a part 

of that analysis includes the procedure by which MSHA determined what citations and orders 

issued at the mine demonstrate a pattern. Therefore, the information sought is relevant to the 

issues raised by the mine. I find further that the privileges asserted by the Secretary do not 

protect the factual information sought by Pocahontas. 

Commission Procedural Rule 56(b) states that “[p]arties may obtain discovery of any 

relevant, non-privileged matter that is admissible evidence or appears likely to lead to the 

discovery of admissible evidence.” 29 C.F.R. § 2700.56(b). A judge may “limit discovery to 

prevent undue delay or to protect a party or person from oppression or undue burden or 

expense.” Id. at 2700.56(c). 

The Secretary argued in two previous discovery-related motions that the information 

Pocahontas sought to discover was not relevant and was privileged. In each of those instances I 

issued an order finding that while internal deliberations involving opinions, thoughts, 

conclusions and legal theories leading up to the decision to issue the NPOV were privileged, 

facts related to what information was considered in issuing the NPOV may be relevant, were 

discoverable, and were not privileged. The depositions were then limited to the facts known by 

each witness. The same is true in this instance. 

 As is evident from the response in opposition filed by Pocahontas, the mine seeks only 

factual information related to a very specific piece of the POV process. The Secretary has 

provided no evidence that suggests Pocahontas intends to ask questions related to the 

deliberation process. “The fact that objections may be raised to specific questions in a deposition 

does not provide a sufficient basis to bar the deposition[s] altogether.” Rail Link, Inc., 20 

FMSHRC 181, 182 (Jan. 1998) (ALJ). While I agree with the Secretary that internal 

deliberations leading up to the decision to issue the NPOV, including the weight given to the 

37 FMSHRC Page 1139
different pattern criteria, and thoughts and opinions of the agency’s employees are privileged, 

that protection does not extend to factual information considered by MSHA and the attorneys 

when selecting and grouping the 42 enforcement actions in the NPOV. 

I have previously made clear that the issue of the validity of the NPOV is properly before 

the Court in these proceedings and the parties may obtain discovery of relevant, non-privileged 

material related to that issue. Moreover, I have noted that, as part of its contest to the validity of 

the NPOV, Pocahontas argues that the issuance of the NPOV was arbitrary and capricious and 

that MSHA did not follow its own rules. I have explained that in order for the Court to make a 

determination on this argument, it is necessary to know which facts MSHA considered when 

making its determination to issue the NPOV. Included in the determination to issue the notice to 

Pocahontas, is the factual information the Secretary considered regarding the selection and 

grouping of the 42 enforcement actions listed in the NPOV. 

On April 1, 2015 Pocahontas, after taking the deposition of Kevin Stricklin, the MSHA 

Administrator for Coal, first learned that it was the attorneys in the Solicitor’s office, not MSHA 

personnel, who selected the 42 enforcement actions to include in the NPOV. Stricklin also 

explained that the two groups of patterns contained in the notice were chosen by the attorneys. 

Subsequently, Pocahontas sought to have the Secretary supplement his answers to previous 

interrogatories and identify all individuals, including each attorney in the Office of the Solicitor, 

with knowledge as to why the mine received the NPOV. The Secretary rejected the request, 

stating that the information was not relevant or reasonably calculated to lead to the discovery of 

admissible evidence. Moreover, the Secretary asserted that the information provided by attorneys 

from the Office of the Solicitor would be protected by multiple privileges. Pocahontas then 

delivered notices of deposition to Heidi Strassler, Jason Grover, Robert Wilson and Douglas 

White, all attorneys in the Office of the Solicitor who have represented MSHA or otherwise been 

involved in this matter. During the course of a telephone conference, the Secretary agreed that it 

was the attorneys from the Solicitor’s office who determined which citations formed a pattern 

and which should be included in the notice provided to the mine. However, the Secretary did not 

indicate which of the named attorneys, if any, were involved in those decisions. 

The Secretary, citing Hickman v. Taylor, 329 U.S. 495, 516 (1947), argues that taking the 

deposition of an attorney is strongly disfavored. The Secretary argues that the rationale for 

keeping attorneys out of litigation is based on the recognition that allowing the deposition of 

counsel on relevant, non-privileged information can interrupt pending litigation. That disruption 

however, is more evident in cases where a party is represented by only one or even two attorneys 

who are deeply involved in preparing and litigating the case. Here, the Secretary is represented 

by several attorneys from the Solicitor’s office and several more have been involved in the 

pattern of violations issues. Therefore, the risk of interruption or disruption caused by the 

deposition of only one of the Secretary’s attorneys is minimal at best. Both parties acknowledge 

that the Eighth Circuit’s decision in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 

1986) is instructive as to when opposing counsel may be deposed. There the court determined 

that deposing an attorney should be limited to circumstances where the party seeking the 

deposition has shown that (1) no other means exists to obtain the information than to depose 

opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the 

information is crucial to the preparation of the case. Id. at 1327. 

37 FMSHRC Page 1140
Based on the Secretary’s representations, the first and third elements of the Shelton test 

are easily met. In this case the Secretary was given the opportunity to provide an agency person 

who could attest to the facts surrounding the choice of the citations listed in the NPOV. 

However, the Secretary ultimately conceded that no one at MSHA could provide that 

information because it was the attorneys in the Office of the Solicitor who made the decision. As 

a result, given that counsel for the Secretary selected and grouped the enforcement actions 

included in the NPOV, there are no other means for Pocahontas to obtain the factual information 

surrounding the choice of the 42 enforcement actions listed in the NPOV. Moreover, and as 

discussed above, the information is crucial to Pocahontas’ argument that the Secretary has 

abused his discretion and that the NPOV was invalidly issued. Accordingly, I find that the first 

and third elements have been met. 

With regard to the second Shelton element, I find that certain information sought by 

Pocahontas regarding this discrete part of the NPOV process is both relevant and non-privileged. 

The Secretary, in addressing the second element of the Shelton test, argues first that the 

information sought by Pocahontas is irrelevant. I disagree and find that the information sought 

by Pocahontas regarding what was considered when selecting and grouping the citations and 

orders listed in the NPOV is relevant. Second, I find that the facts, including who, what, where 

and when, as they relate to the selection of the citations and orders to be included in the written 

notice, are not privileged information. 

Mine operators have the right to understand the pattern of violations process as it applies 

to them. Given that an operator may challenge the issuance of a NPOV by showing that the 

Secretary, in issuing the NPOV to the operator, abused his discretion and acted in an arbitrary 

and capricious manner, factual information about what the Secretary considered when selecting 

and grouping the enforcement actions listed in the NPOV goes directly to the question of 

whether the Secretary abused his discretion. The mine operator is entitled to learn facts such as 

when the decision was made about the citations and orders that form the pattern, where the 

decision was made, who was involved, and what documents and information were before the 

decision-makers. Even if Stricklin made the final decision to accept the NPOV and the patterns 

described therein, as alleged by the Secretary, the mine is entitled to understand the process that 

was used to determine what information was provided to him and who was responsible to 

provide that information. Stricklin understood that the attorneys for the Secretary played a 

substantial role in selecting the enforcement actions to be listed and the Solicitor agreed that it 

was attorneys, not agency employees, who made the decision for the agency. MSHA had only a 

“point person” involved in the process, and in the opinion of the Solicitor deposing that person 

would yield little information as to the selection process. Therefore, the mine operator is correct 

that it has not had access to the facts underlying this particular step of the NPOV process. 

The Secretary, in addressing the second element of the Shelton test, argues not only that 

the information is irrelevant but also that the information sought by Pocahontas is protected by 

the deliberative process privilege, work product rule, and attorney client privilege. However, as 

more clearly spelled out below, there are facts that can be disclosed without seeking information 

that is protected by these privileges. In addition, the Secretary waived his right to assert certain 

privileges when attorneys for the Solicitor’s office operated beyond their role as advisors to the 

agency and instead took agency action on their own. 

37 FMSHRC Page 1141
The Secretary first asserts that any information which could be obtained from the named 

attorneys about why certain enforcement actions were included in the NPOV would inquire into 

the thoughts, process and opinions of those individuals and is, therefore, protected from 

discovery by the deliberative process privilege. 

The deliberative process privilege is intended to protect the “‘consultative functions’ of 

government by maintaining the confidentiality of ‘advisory opinions, recommendations and 

deliberations comprising part of a process by which governmental decisions and policies are 

formulated.’” In Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987 

(June 1992) (quoting Jordan v. U.S. Dept. of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978)). In 

order to assert the privilege, the material sought must be “pre-decisional” and “deliberative.” Id. 

at 992. A communication is “pre-decisional” when it is made prior to the adoption of the agency 

policy or decision. Id. A communication is “deliberative” if it is actually “related to the process 

by which policies are formulated.” Id. However, purely factual material that does not expose the 

decision making process is not protected. Id. at 993 (citing Exxon v. Doe, 585 F. Supp. 690, 698 

(D.C. 1983)). A court charged with determining whether to recognize the privilege must balance 

the public interest in protecting the information with the litigant’s need for that same 

information. See Clinchfield Coal Co., 23 FMSHRC 347 (Mar. 2001) (ALJ) (Citing United 

States v. Nixon, 418 U.S. 683 (1974); 8 Wright and Miller, Federal Practice and Procedure § 

2019 at 167-169 (1970)). 

I find that factual information relied upon by the Secretary, his attorneys, and MSHA in 

selecting and grouping the 42 enforcement actions contained in the NPOV is not protected by the 

deliberative process privilege. Here, while the selection of the 42 citations prior to the final 

decision to issue the NPOV may be pre-decisional, the mine is not seeking the thought process or 

analysis of that decision. Instead, it seeks the facts relied upon in coming to the decision to 

include the enforcement documents. Undoubtedly much of the communication between the 

attorneys and MSHA included thoughts, process, and opinions of those individuals as to why 

they selected, and how they grouped, the 42 enforcement actions. However, in order to form 

those thoughts and opinions, and select and categorize the 42 enforcement actions, the attorneys 

had to rely on facts before them. Accordingly, while many of the communications between the 

Secretary and his counsel are protected by the deliberative process privilege, facts regarding 

what information the attorneys considered when selecting and grouping the 42 enforcement 

actions included in the NPOV are not protected by this privilege. 

The Secretary next asserts that the work product rule protects against the disclosure of 

materials in the possession of the attorneys from the Office of the Solicitor related to why 

Pocahontas received the NPOV. 

In Asarco Inc., 12 FMSHRC 2548, 2557-2558 (Dec. 1990) the Commission explained 

that the work product privilege is a “qualified immunity against discovery.” A party may 

withhold otherwise discoverable materials if the materials are (1) documents and tangible things; 

(2) prepared in anticipation of litigation or for trial; (3) by or for another party or by or for that 

party’s representative. Id. at 2558; Fed R. Civ. P. 26(b)(3). However, even where litigation is 

contemplated, if the document was generated in the ordinary course of business, rather than for 

purposes of litigation, then the document is discoverable. Asarco Inc., 12 FMSHRC 2548, 2558-

37 FMSHRC Page 1142
2559 (Dec. 1990). Moreover, the party seeking discovery of the materials may be able to 

overcome the protection if it can show a substantial need for the materials in order to prepare its 

case and is unable, without undue hardship, to obtain the substantial equivalent of those materials 

by other means. Asarco Inc., at 2558. 

I find that that the work product rule applies to some of the materials sought, but that, 

with limitations, other of those materials are discoverable. The notice of deposition requests the 

deponent to produce the “entire file, including but not limited to, any and all notes, documents, 

memoranda, e-mail correspondence, and any other correspondence . . . which relates in any 

manner to his knowledge as to why . . . ” the mine received the NPOV notice. The request 

further seeks any document used to refresh memory. The request is very broad and seeks 

documents that go beyond the action of choosing the 42 citations and orders to list in the notice. 

Therefore, my order is limited to any fact contained in a document that relates to the selection of 

the citations and orders to include in the NPOV issued to Pocahontas along with facts related to 

the selection and inclusion of the two categories of pattern. 

Pocahontas’ request for production of files, notes, documents, memoranda, emails, and 

other correspondence involves documents and tangible things and, therefore, step one of the test 

is met. The question of whether the documents were prepared in anticipation of litigation is a 

more difficult one. The Secretary argues that, because the attorneys were involved in the review 

of the 42 enforcement actions listed in the NPOV, litigation was clearly anticipated. However, 

Pocahontas argues that litigation could not have been contemplated because, at the time the 42 

enforcement actions were selected and put into categories, no 104(e) order had been issued 

which would have allowed the mine to contest the validity of the underlying NPOV. 

I reject the Secretary’s argument that simply because attorneys were involved the 

materials sought were prepared in anticipation of litigation. The involvement of attorneys cannot, 

by itself, support the conclusion that litigation was anticipated. Otherwise, the simple 

“involvement” of attorneys could be used to shield most any document or tangible thing from 

discovery. I also reject the argument of the mine that because no 104(e) orders had been issued, 

the documents could not have been generated in anticipation of litigation. Instead, I find that 

there may be documents included in the list that were in fact generated in anticipation of 

litigation, but others that were not. Here, the NPOV itself is not a pleading or charging 

document. Rather it is a notice generated in MSHA’s ordinary course of business. Undoubtedly, 

some of the documents sought by Pocahontas from the attorneys were generated in the ordinary 

course of business leading up to the decision to issue the NPOV, but the actual drafting of the 

NPOV was simply a notice, like any other notice drafted by MSHA. I cannot agree that by virtue 

of the fact that MSHA was drafting an enforcement document, it was done in anticipation of 

litigation. The same would be true for every citation, order, safeguard or other notice that MSHA 

is required to prepare. The Secretary’s decision to involve the attorneys, and ultimately have 

them make the decisions regarding what to include in an MSHA document under these particular 

circumstance, cannot now be used to shield facts from Pocahontas. As a result, I find that 

materials which include facts regarding the process of choosing what to list in the notice are not 

protected. 

37 FMSHRC Page 1143
Even if the work product rule had applied to all materials, I find that Pocahontas has a 

substantial need for facts regarding what data and information were considered by MSHA and 

the attorneys when selecting and grouping the 42 enforcement actions. I agree with Pocahontas 

that if the attorneys in the Office of the Solicitor who selected and grouped the enforcement 

actions in the NPOV were the only individuals involved in that activity, then they may have 

made themselves fact witnesses to this matter. However, the Court is not willing to grant 

Pocahontas carte blanche to access all information in the materials sought, especially with regard 

to any thoughts and opinions concerning the issuance of the NPOV. As the Commission has 

stated, if the court finds that materials should be produced, it is incumbent upon the court to 

“‘protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of 

an attorney or other representative of a party concerning the litigation.’” Asarco Inc., at 2558 

(quoting Fed. R. Civ. P. 26(b)(3)). While the Court agrees that Pocahontas should have access to 

the materials sought, access should only extend to certain factual information regarding the 

selection and grouping of the enforcement actions. 

With regard to Pocahontas’ argument that the Secretary has waived protection under the 

work product rule, I agree in part. To the extent that the Secretary has already disclosed certain 

materials, inadvertently or otherwise, those materials are no longer protected under the work 

product rule. However, with regard to materials which have not yet been turned over, and 

involve information beyond facts relied upon by the attorneys and MSHA in selecting and 

grouping the 42 enforcement actions, the Secretary has not waived work product or other 

protection. 

Finally, the Secretary asserts in his motion that the information sought in the depositions 

is subject to the attorney client privilege. The attorney client privilege protects the confidential 

communications between attorneys and their clients. It is designed to “encourage full and frank 

communication between attorneys and their clients” and “recognizes that sound legal advice or 

advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being 

fully informed by the client.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). However, the 

privilege is not without its limits. As the Court in Upjohn explained, the privilege extends only to 

communications and does not protect disclosure of the underlying facts. Id. at 395-396. 

First, there is some question whether there was any privileged advice given between 

attorney and client since the Solicitor apparently took over the process and made the decisions 

without discussing those decisions with a client. Next, it is fair to assume that the Office of the 

Solicitor was provided with some facts from its client, or otherwise sought out facts on its own, 

in order for its attorneys to select the 42 enforcement actions that it believes demonstrate a 

pattern of violations. Accordingly, I find that facts relied upon by the attorneys when selecting 

and grouping the 42 enforcement actions are not protected by the attorney client privilege. 

Obviously, as generally discussed above in the context of the other privileges, communications 

between MSHA and the attorneys for the Office of the Solicitor which involve internal thoughts, 

opinions, conclusions, and legal theories remain privileged and are not subject to discovery. 

While Pocahontas also argues that the Secretary has waived the attorney client privilege, I 

disagree. The privilege remains intact for communications which have not already been 

disclosed and involve thoughts, opinions, conclusions, legal theories, etc. 

37 FMSHRC Page 1144
In addition to the arguments raised in the motion for protective order, the Secretary also 

argued during the telephone conference call with the parties that, here, the attorneys’ decision to 

include certain citations and orders, as well as the groupings of those enforcement actions, in the 

NPOV is one of prosecutorial discretion. In making the argument the Secretary asserted that, just 

as a prosecutor has discretion regarding what to include in an indictment in a criminal matter, the 

attorneys for the Secretary have discretion when deciding which enforcement actions to include 

in the NPOV. I disagree. I find that the NPOV process is not akin to an indictment or the filing 

of a lawsuit. Rather, the NPOV is a notice from the agency that the mine has problems with its 

safety record and that MSHA has determined it is necessary to provide more scrutiny in order to 

help the operator become compliant and provide a safer workplace. While a NPOV may 

anticipate some litigation, it is not a pleading or other charging document. Even if it were, it must 

be based upon facts and those facts should be shared with the entity being put on notice. While I 

agree that the agency may seek advice from its attorneys in the Office of the Solicitor, here the 

actions of at least some attorneys went beyond advice and amounted to decision making 

regarding the contents of the NPOV. For that reason, and the reasons discussed above, the 

request for a protective order is denied in part and granted in part. 

IV. ORDER 

 

I am mindful of the disfavor with which courts order the deposition of opposing counsel. 

Accordingly, while the Secretary asserts that the deposition of the CLR and field office 

supervisor mentioned by Stricklin in his deposition will not yield information that is of use to 

Pocahontas, the Secretary is nevertheless ORDERED to produce for deposition, within the 14 

days of the date of this order, the person from MSHA who was most closely involved in the 

selection and categorization of the 42 enforcement actions included in the NPOV. Pocahontas 

may question the witness about factual information that was relied upon when selecting and 

grouping the 42 enforcement actions in the NPOV, where the selection and grouping took place, 

when it took place, who was involved in the selection, and what facts, if any, were relied upon in 

making the selection. Internal thoughts, opinions, and conclusions remain protected and are not 

discoverable. 

In the event Pocahontas is unable to learn the facts its needs from the deposition of the 

CLR or field office supervisor, Pocahontas is ORDERED to, within 7 days of the deposition, 

propound interrogatories to the Secretary for the sole purpose of discovering facts related to the 

selection of the citations and orders that were listed on the notice of pattern of violations issued 

to the mine. The mine may include a request for production, and any document that is subject of 

an objection shall be submitted to the Court within ten days of the date of the objection for an in 

camera review. All documents may be redacted so that they include only facts. The 

interrogatories will be answered within ten days by an attorney of the Secretary’s choosing who 

has direct knowledge of the facts Pocahontas seeks to discover. The designated attorney for the 

Secretary is ORDERED to, within 10 days of service of the interrogatories, respond, in affidavit 

form, and include a description of their involvement in the selection of the enforcement 

documents for the NPOV. The same facts that were discoverable in the deposition remain 

discoverable in the interrogatories. The attorney who answers the interrogatories will, from that 

point forward, be a fact witness in this matter and will NOT be able to represent the Secretary for 

the remainder of this case or in any other case involving the subject NPOV. In the event 

37 FMSHRC Page 1145
Pocahontas does not obtain the information it needs, it may file a motion within 10 days of the 

date of service of the Secretary’s interrogatory response. If Pocahontas does not file such a 

motion, the parties are ORDERED to, within 20 days of the date of service of the Secretary’s 

interrogatory response, supplement the record for the pending motions for summary decision 

with any new information learned from the depositions and interrogatories that is relevant to its 

arguments in this case. 

/s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Jason Grover, Francine Serafin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., 22nd Floor West, Arlington, Virginia 22209 

Jason Nutzman, Dinsmore & Shohl, LLP, 900 Lee St. Suite 600, Charleston, WV 25301 

Robert Huston Beatty, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, 

WV 26501 

37 FMSHRC Page 1146