i 

August 2017 

TABLE OF CONTENTS 

COMMISSION ORDERS 

08-01-17 LARRY ANDERSON, formerly 

employed by AK COAL RESOURCES 

INC. 

PENN 2017-109 Page 1545

08-03-17 KENTUCKY FUEL CORPORATION KENT 2013-1050 Page 1548

08-03-17 ROGERS GROUP, INC. KENT 2016-22-M Page 1551

08-03-17 BLACK RIVER COAL, LLC VA 2016-59 Page 1557

08-03-17 DYNAMIC ENERGY, INC. WEVA 2014-890 Page 1560

08-07-17 BROOKFIELD SAND & GRAVEL, 

INC. 

LAKE 2016-253-M Page 1565

08-07-17 LUCK STONE CORPORATION VA 2016-40-M Page 1568

08-07-17 FAIRFAX MATERIALS WEVA 2015-1016-M Page 1571

08-07-17 GREENBRIER MINERALS, LLC WEVA 2016-103 Page 1574

08-16-17 CANYON FUEL COMPANY, LLC WEST 2015-635 Page 1578

08-17-17 SHERWIN ALUMINA COMPANY, 

LLC 

CENT 2017-25-M Page 1596

08-17-17 EMBER ENERGY, LLC KENT 2017-67 Page 1599
ii 

08-17-17 LHOIST NORTH AMERICA OF 

VIRGINIA, INC. 

VA 2017-9-M Page 1602

08-17-17 CROELL REDI-MIX INC. WEST 2017-45-M Page 1605

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-02-17 MORRIS SAND & GRAVEL, INC. LAKE 2016-0365 Page 1609

08-04-17 LITTLE BUCK COAL COMPANY #2 PENN 2015-100 Page 1625

08-15-17 SEC. OF LABOR O/B/O BENJAMIN 

LEADMON, and FRANKLIN 

JEREMIAH GIBSON v. BLUE 

CREEK MINING, LLC 

WEVA 2017-498-D Page 1658

08-30-17 TITAN FLORIDA, LLC SE 2015-0105 Page 1678

08-31-17 RAW COAL MINING COMPANY, 

INC. 

WEVA 2015-996 Page 1681

ADMINISTRATIVE LAW JUDGE ORDERS 

08-02-17 PANTHER CREEK MINING, LLC WEVA 2017-426 Page 170

08-28-17 KENAMERICAN RESOURCES, INC. KENT 2017-0183 Page 1709

08-30-17 A&G COAL CORPORATION VA 2014-243 Page 1716
iii 

Review was granted in the following cases during the month of August 2017: 

Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2014-816 

(Judge Lewis, June 30, 2017) 

Secretary of Labor v. Rain for Rent, Docket No. WEST 2016-730 M (Judge Manning, July 26, 

2017) 

Review was denied in the following cases during the month of August 2017: 

Secretary of Labor v. Larry Anderson, formerly employed by AK Coal Resources, Inc., Docket 

No. PENN 2017-109 (Judge Andrews, July 20, 2017) (Interlocutory Review) 

Secretary of Labor v. John Richards Construction, Docket No. WEST 2015-101 M (Judge 

Bulluck, July 5, 2017) 

Secretary of Labor v. John Richards Construction, Docket No. WEST 2015-101 M (Judge 

Bulluck, July 5, 2017) (Petition for Reconsideration) 

COMMISSION ORDERS
39 FMSHRC Page 1544
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 1, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINSTRATION (MSHA) Docket No. PENN 2017-109 

v. 

LARRY ANDERSON, formerly employed 

 by AK COAL RESOURCES INC. 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2012). It involves a section 110(c) proceeding1 in which Larry Anderson served

notices of deposition on an attorney in the Secretary of Labor’s Office of the Solicitor and on an

unnamed official of the Mine Safety and Health Administration. The Secretary in turn filed two

motions for protective orders. In an order dated July 20, 2017, the Administrative Law Judge

granted in part and denied in part the Secretary’s motions. The Judge’s order addressed the

Secretary’s contentions regarding the qualified immunity privilege, deliberative process

privilege, investigative process privilege, attorney-client privilege, and attorney work product

privilege.

On July 26, 2017, the Secretary filed a motion to certify for interlocutory review the 

Judge’s order and to suspend the depositions and trial proceedings. On that same day the Judge 

denied the motion. 

On July 27, 2017, the Secretary filed a Petition for Interlocutory Review and For 

Suspension of Two Depositions and Trial Proceedings Below, pursuant to Commission 

Procedural Rule 76, 29 C.F.R. § 2700.76. This petition seeks review of the Judge’s July 20,

1

 Section 110(c) of the Mine Act states: “Whenever a corporate operator violates a 

mandatory health or safety standard or knowingly violates or fails or refuses to comply with any 

order issued under this Act or any order incorporated in a final decision issued under this Act . . . 

any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried 

out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under subsections (a) and (d).” 30 U.S.C. 

§ 820(c).

39 FMSHRC Page 1545
2017, order. The petition seeks review on the grounds that the information sought in the two 

depositions is not relevant as a matter of law. 

 Commission Procedural Rule 76(a) provides that interlocutory review is a matter of 

sound discretion of the Commission, and that the Commission may grant interlocutory review 

upon a determination that the Judge’s interlocutory ruling involves a controlling question of law 

and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

 The Commission usually does not grant interlocutory review of discovery orders. See 

Nagel v. Newmont USA Ltd., 32 FMSHRC 1694, 1696 (Nov. 2010) (denying petition for 

interlocutory review of a motion to compel production); Asarco, Inc., 14 FMSHRC 1323, 1328 

(Aug. 1992) (“[U]nless there is a ‘manifest abuse of discretion’ on the part of a judge, discovery 

orders are not ordinarily subject to interlocutory appellate review.”) (citations omitted); In re: 

Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1004 (June 1992) 

(“[D]iscovery orders are usually not appealable.”); see also 8 Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 2006 (3d ed. 2002) (same). 

39 FMSHRC Page 1546
Moreover, the Secretary stated in his petition that the Judge ordered one of the 

depositions to go forward on July 27, and that the Secretary “preserved his objections as to 

relevance” regarding certain questions. Petition at 1, n.1 Given that this deposition has already 

taken place, and objections have been preserved, Letter from Amelia B. Bryson, Attorney, U.S. 

Dept. of Labor (July 28, 2017), immediate review would not materially advance the final 

disposition of the proceeding. 29 C.F.R. § 2700.76(a)(2).2 A similar process can be put in place 

for the second deposition (scheduled for August 7, 2017), whereby the Secretary could preserve 

his objections.3 We therefore deny the petition, as well as the Secretary’s request to suspend the 

two depositions and any trial proceedings before the Judge pending appeal. 

 

 /s/ William I. Althen 

 William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 /s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner 

 2

 Because the deposition of Stepanic has already occurred, the Secretary’s interlocutory 

appeal of the Judge’s order and his request to suspend that deposition may also be moot. 

3 We note that the Secretary does not make a showing that this process will cause great 

harm. 

39 FMSHRC Page 1547
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 14, 2015, the Commission received from Kentucky 

Fuel Corporation (“Kentucky Fuel”) a motion seeking to reopen a penalty assessment proceeding 

and relieve it from the Default Order entered against it. 

 

 On January 23, 2014, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Kentucky Fuel’s failure to answer the Secretary of Labor’s October 22, 

2013, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on February 24, 2014, when it appeared that the operator had not filed 

an answer with the Judge within 30 days. 

 Kentucky Fuels claims that it never received the initial Petition for Assessment of Civil 

Penalty. Moreover, it claims that it received the Order to Show Cause on January 27, 2014, and 

promptly filed a response on February 6, 2014. This Response was received by the Commission 

on February 11, 2014. However, while the Response listed the correct Assessment Control 

Number, it showed the docket number as “WEVA 2013-1050” rather than “KENT 2013-1050.” 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

KENTUCKY FUEL CORPORATION 

 

 Docket No. KENT 2013-1050 

 A.C. No. 15-18363-329924 

 

 

39 FMSHRC Page 1548
The evidence shows that the operator intended its February 6, 2014, letter to serve as a 

response to the Order to Show Cause in KENT 2013-1050, but it mistakenly wrote “WEVA” 

instead of “KENT.” The Commission received Kentucky Fuel’s letter on February 11, 2014, 

prior to the February 24, 2014, deadline for responding to the Order to Show Cause. Therefore, 

we conclude that the operator was not in default under the terms of the Order to Show Cause 

because it timely complied with the Order. See Vulcan Constr. Materials, 33 FMSHRC 2164 

(Sept. 2011). This renders the Default Order a nullity. Accordingly, KENT 2013-1050 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/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1549
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1550
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On August 31, 2015, and September 25, 2015, the 

Commission received from Rogers Groups, Inc. (“Rogers”) motions 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).1

 The Secretary opposed these motions. 

 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

 The present motions represent Rogers’ second and third requests that the Commission 

reopen Assessment No. 000190469. On January 12, 2010, the Commission dismissed the first 

motion to reopen without prejudice. Rogers Group, Inc., 32 FMSHRC 8 (Jan. 2010). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

ROGERS GROUP, INC. 

 

 Docket No. KENT 2016-22-M 

 A.C. No. 15-00013-190469 

39 FMSHRC Page 1551
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on July 15, 2009, and became a 

final order of the Commission on August 14, 2009. 

 On September 1, 2009, Rogers’ safety manager, Karonica Glover, filed the initial motion 

to reopen this matter. Glover justified Rogers’ failure to timely contest the assessment by stating 

she was unaware that multiple citations issued during a single inspection had been placed in two 

separate dockets. On January 12, 2010, the Commission issued an Order concluding that 

proffered explanation was not sufficiently detailed and did not provide an adequate basis to 

reopen, denying the motion without prejudice, and inviting Rogers to file another request to 

reopen with supporting documentation establishing good cause for the failure to timely contest 

the citations. 

According to Ed Elliott, Rogers’ Director of Safety and Health, Glover took no action in 

response to the Commission’s Order and did not inform the operator about her activities in this 

matter. Elliott stated that he believed that she was engaged in ongoing “informal contest 

procedures” with MSHA. On March 26, 2010, Glover left her employment with Rogers and her 

files, including records regarding the previous request to reopen, were “somehow lost.” Elliott 

asserts that after she left, no one else was aware of any of the actions that Glover had taken, nor 

was anyone aware that the Commission had issued an order denying the original motion to 

reopen. 

However, by the operator’s own admission, at least one Rogers employee was aware that 

Glover had filed the original motion to reopen and that, as of January 2010, the motion was 

being considered by the Commission. On December 1, 2009, MSHA answered an inquiry by 

Rogers’ Safety and Health manager, Kellyann Krause, by telling her that the case was “on hold’ 

because it “received [a] motion to re-open [Assessment No. 000190469] and [was] awaiting 

approval from the FMSHRC to process [sic] for hearing.” Operator’s Response to Opposition at 

2. In January 2010, MSHA further explained that the Secretary could not proceed with the case 

until the Commission had ruled on the motion. Id. 

Despite knowing that a motion to reopen had been filed with the Commission, Rogers’ 

does not appear to have made any effort in the intervening years to request a status update from 

the Commission. Instead, the operator attempted to revive the final order through informal 

discussions with MSHA representatives. On September 9, 2010, Krause asked whether the 

instant matter could be included in that settlement and was told “it could not be included because 

it was part of a back log [sic] sent to Atlanta.” Operator’s Response to Opposition at 2. Further, 

in 2014 and again in early 2015, Elliott spoke informally with the MSHA Southeastern District 

Manager and the Southeast Assistant District Manager about ways that the operator could 

proceed with the case. 

39 FMSHRC Page 1552
On August 31, 2015, Rogers received a delinquency notice related to the matter.2

 Elliott 

believed that this notice had been issued in error because the operator had not concluded its 

contest “according to normal procedures.” After consulting with the MSHA Assistant District 

Manager and the Civil Penalty Compliance Office, Elliott filed the two letters to the 

Commission, which we have construed as motions to reopen. 

In these letters, Rogers does not address its initial failure to file its contest in a timely 

manner, nor does it mention the motion to reopen previously filed by Ms. Glover. Instead, 

Rogers offers several justifications for not having filed the present motion to reopen timely. 

Rogers claims that it thought that Glover had initiated informal contest proceedings and that the 

case remained pending. However, Rogers also claims to have had no knowledge of any of the 

actions Glover had taken because she had not informed her superiors, was no longer with the 

company, and all of her correspondence had been lost. Additionally, Rogers contends that it had 

mistakenly believed that the citations “might” have been included in a 2015 global settlement 

consisting of a substantial number of outstanding penalties. 

On October 26, 2015, the Secretary filed an opposition to Rogers’ request to reopen. The 

Secretary asserted that the operator’s late filing is without adequate excuse and that the request to 

reopen must be denied because it was filed more than one year after the proposed assessment 

became a final order of the Commission. Moreover, the Secretary contends that Glover, who left 

Rogers’ employment roughly two months after the Commission’s order was issued, would have 

had plenty of time to refile her motion to reopen. 

On December 9, 2015, Rogers filed a Response alleging that the “the government took 

inappropriate action without our having the opportunity to exercise our rights to contest.” In it, 

Rogers takes exception to the fact that MSHA’s Mine Data Retrieval database consistently stated 

that the matter was “pending” or “on hold.” Rogers asserts that it relied on these representations 

and that it believed that the case would be reopened and that the operator was simply “waiting 

for the next step.” 

When we initially dismissed this matter without prejudice, we concluded that “the 

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

proposed penalty assessment.” 32 FMSHRC 8. We went on to explain that, if Rogers submitted 

another request to reopen, it would be required to show “good cause” for its failure to contest the 

citations and penalties within 30 days. We noted that under Rule 60(b) of the Federal Rules of 

Civil Procedure that “good cause” could be established by a number of different factors, 

including mistake, inadvertence, surprise, excusable neglect, the discovery of new evidence, or 

fraud, misrepresentation, or other misconduct by the adverse party. 

Seven years, two requests to reopen, and a response later, the operator has still not 

provided any additional explanation or established good cause for its initial delay in contesting 

 2

 The Secretary explained the delay in the issuance of the delinquency notice, stating, 

“MSHA originally put a hold on sending the delinquency notice because of the pending motion 

to reopen and then the possible resubmission after the January 2010 denial order, and the system 

did not pick up the outstanding delinquency until August 2015.” Secretary of Labor’s 

Opposition to Request to Reopen Penalty Assessment at 3. 

39 FMSHRC Page 1553
this matter. In its three filings in 2015, Rogers provided justifications for why it took no action 

following the Commission’s initial Order denying its request without prejudice. However, it 

never provided any explanation for why it failed to contest this matter before August 14, 2009, 

beyond its statement that it was not aware that citations from a single inspection were placed in 

two dockets. As we noted in our January 12, 2010 Order, this is not “good cause” for failing to 

contest a citation. At best, it is evidence that Rogers had not properly trained its employees and 

thus had an inadequate or unreliable internal processing system, which is not a basis for 

reopening an assessment. See, e.g., Shelter Creek Capital, LLC, 34 FMSHRC 3053, 3054 (Dec. 

2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). When an operator’s second 

request to reopen following a denial without prejudice again fails to explain its failure to timely 

contest the proposed penalty, the request should be denied. See Byholt, Inc., 34 FMSHRC 2875 

(Nov. 2012); Pinky’s Aggregate, Inc., 32 FMSHRC 790 (Jul. 29, 2010). 

However, even if Rogers had presented evidence of “good cause” in any of its three 2015 

filings, we would still deny the operator’s request. The Commission has held that a second 

request to reopen filed after a denial without prejudice must be made “within a reasonable time.” 

See WKJ Contractor’s Inc., 32 FMSHRC 45 (Jan. 2010) (“WKJ”); see also SOL v. Thomas 

Hale, 17 FMSHRC 1815 (Nov. 1995)(Four year delay between final order and request to reopen 

too long); SOL v. Ravenna Gravel, 14 FMSHRC 738 (May 1995) (Commission “constrained” to 

deny a request to reopen filed more than one year after becoming final). In WKJ, the 

Commission denied a request to reopen when it was made more than a year after the assessment 

had become final and five months after the initial Order denying without prejudice was issued. 

Id. The instant motion to reopen was filed on September 11, 2015, more than five years after the 

assessment became final on August 14, 2009 and more than four years after the initial Order 

denying reopening without prejudice on January 12, 2010. The second request to reopen was not 

filed within a reasonable time. Further, as in WKJ, Rogers offered no adequate reason for this 

delay. 

Rogers provided several explanations for why it failed to resubmit its request to reopen 

for more than five years. First, Rogers claimed that in December 2009 and January 2010, it was 

told by MSHA officials that the motion to reopen was pending. Second, it claims that its former 

safety manager, Karonica Glover, who received the Commission’s previous order, left the 

company on March 26, 2010, and did not leave any records of the Commission’s order. Then, in 

September 2010, Rogers claims that MSHA told it that the matter had been turned over to an 

Atlanta backlog office. Finally, the operator claims that in the years following its initial request 

to reopen, the MSHA Mine Data Retrieval website consistently stated that the matter was 

“pending” or “on hold.” However, these explanations are insufficient to excuse the extremely 

long delay in this case. 

There was nothing misleading or inappropriate about MSHA’s comments in in December 

2009 and January 2010 (particularly if those comments occurred in early January 2010). At that 

time, Rogers’ initial request to reopen was still pending; our Order was not issued until January 

12, 2010. After that date, the Commission mailed the Order to Rogers, which should have 

cleared up any confusion about the status of the case. Further, the Commission did not simply 

mail the decision to the parties; it published the opinion at 32 FMSHRC 8. Even if MSHA was 

later unclear about the status of the case, the operator should have possessed the Order and been 

39 FMSHRC Page 1554
aware that it needed to promptly resubmit a request to reopen. The fact that Ms. Glover left the 

company on March 26, 2010, does not explain what happened during the period of over two 

months following her receipt of the Commission’s January 12, 2010, order. Her failure to take 

the appropriate action or inform her superiors of the status of the case is not an acceptable excuse 

for the operator’s failure to resubmit the motion in a timely manner. After all, “[i]t is the 

operator’s responsibility to properly train all personnel who handle proposed assessments.” 

Kentucky Fuel Corp., 38 FMSHRC 632, 634 (Apr. 2016). 

Even if the operator was misled by MSHA’s statements and website, it provides no 

reasonable explanation for why it failed to actively follow up on this matter between September 

2010 and 2014. Regardless of whether Rogers believed the matter was “pending” or “on hold,” 

it should have been diligently pursuing its case. The fact that there is no record of any 

conversations between the operator and MSHA for approximately four years indicates Rogers 

was not diligent. 

 Properly contesting citations and orders, managing and supervising its personnel and 

providing appropriate justification and support for a request for extraordinary relief are the 

operator’s responsibilities. They have not been fulfilled by the unreasonably delayed and 

incomplete explanations submitted to us in the instant motion. We therefore deny the motion. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

39 FMSHRC Page 1555
Distribution: 

Ed Elliot 

Safety and Health Director 

Rogers Group, Inc. 

P.O. Box 25250 

Nashville, TN 37202 

Kellyann Krause 

Safety and Health Manager 

Rogers Group, Inc. 

2944 E. Covenanter Drive 

Bloomington, IN 47401 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1556
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On December 14, 2015, the Commission received from 

Black River Coal, LLC (“Black River”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on August 17, 2015, and became 

a final order of the Commission on September 16, 2015. Black River asserts that the Notice of 

Contest in this matter was mailed to the correct address but was never received by the Secretary 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BLACK RIVER COAL, LLC 

 

 Docket No. VA 2016-59 

 A.C. No. 44-06859-389543 

39 FMSHRC Page 1557
of Labor. A certified mail receipt shows that Black River mailed the contest to the correct 

address, but failed to include the suite number. USPS tracking records show that the contest was 

mailed on August 29, 2015 and reached the Merrifield, Virginia post office on September 1, 

2015. No further delivery is shown. Black River was mailed a delinquency notice on 

November 2, 2015.1 The Secretary does not oppose the request to reopen. 

 Having reviewed Black River’s request and the Secretary’s response, we determine that 

the operator mistakenly failed to include the suite number in an otherwise correct mailing 

address for the Secretary of Labor. The initial mailing was timely and the operator rapidly 

corrected the filing upon learning of its mistake. Therefore, 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/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

 1

 The Secretary submitted a letter stating that the delinquency notice was mailed on 

November 2, 2015. However, he did not provide any mailing records to substantiate that claim. 

39 FMSHRC Page 1558
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1559
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

801 et seq. (2012) (“Mine Act”). On October 15, 2015, the Commission received from Dynamic 

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

relieve it from the Default Order entered against it. 

 

 On October 16, 2014, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Dynamic’s failure to answer the Secretary of Labor’s June 18, 2014, 

Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a 

Default Order on November 17, 2014, when it appeared that the operator had not filed an answer 

with the Judge within 30 days. The Judge’s order here became a final order of the Commission 

on December 29, 2014. See 30 U.S.C. § 823(d); 29 C.F.R. § 2700.70(a). 

On July 7, 2015, Dynamic received an email from the Commission’s docket office asking 

whether it had submitted an answer to the Secretary’s petition. On July 8, 2015, Dynamic filed 

its Answer to the Petition for Assessment. In that Answer, Dynamic did not refer to the Order to 

Show Cause but stated that it had never received a copy of the Petition for Assessment of Civil 

Penalty. On October 5, 2015, the docket office issued a Notice informing the operator that the 

proceeding was defaulted following its failure to respond to the Order to Show Cause. 

In its motion to reopen, Dynamic alleges that it had good cause for its failure to file its 

Answer and its failure to respond to the Order to Show Cause. With respect to its failure to file 

an Answer, Dynamic asserts that when it received the Order to Show Cause, it searched its 

records and could not find a petition. Dynamic also asserts that upon receiving the Order to 

Show Cause it immediately drafted an Answer and sent it via certified mail. However, 

Dynamic’s representative alleges that personal and computer ”issues” prevented it from locating 

copies of that Answer to include with its Motion to Reopen. In lieu of records or certified mail 

receipts, Dynamic’s representative averred via affidavit that he received the show cause order 

and personally mailed the operator’s response in October 2014. Dynamic stated that it reasonably 

believed that Answer had been accepted by the Commission because it received no 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

DYNAMIC ENERGY, INC. 

 

 Docket No. WEVA 2014-890 

 A.C. No. 46-09062-348647 

39 FMSHRC Page 1560
communication from the Office of the Administrative Law Judge regarding dismissal. Following 

the October 5, 2015, Notice from the Commission’s docket office, Dynamic drafted a second 

Answer and mailed it immediately. 

On January 7, 2016, the Secretary filed an opposition to Dynamic’s Motion to Reopen. 

The Secretary asserts that Dynamic has failed to establish good cause for its failure to file an 

Answer or timely respond to the Show Cause Order. 

 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

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

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

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

 The party seeking to reopen a final penalty bears the burden of showing that it is entitled 

to such relief, through a detailed explanation of its failure to timely contest the penalty or answer 

the Secretary’s petition, and any delays in filing for reopening: 

An operator seeking to reopen a proceeding after a final order is effective bears 

the burden of establishing an entitlement to extraordinary relief. At a minimum, 

the applicant for such relief must provide all known details, including relevant 

dates and persons involved, and a clear explanation that accounts, to the best of 

the operator’s knowledge, for the failure to submit a timely response and for any 

delays in seeking relief once the operator became aware of the delinquency or 

failure. . . . Affidavits from persons involved in and knowledgeable of the 

situation and pertinent documents should be included with the request to reopen. 

Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010); see also Lone Mountain Processing, Inc., 35 

FMSHRC 3342, 3345 (Nov. 2013). 

 We find that Dynamic has failed to meet this burden here. With respect to its failure to 

timely respond to the Show Cause Order, Dynamic claims that it filed a Response via certified 

mail. Dynamics implies that this Response was lost in transit. A copy of Dynamic’s response 

should have been sent to both the Commission and the Secretary per Commission Procedural 

Rule 7(a). 29 C.F.R. §7200.7(a). Neither the Commission nor the Secretary has a record of any 

such response. Dynamic submitted no certified mail receipts to confirm that a Response was sent 

in October 2014. These physical receipts would not have been lost as the result of computer 

issues. 

39 FMSHRC Page 1561
Dynamic was also unable to locate a copy of the Answer that it claims it filed in response 

to the Order to Show Cause.1

 In fact, citing an absence of computer records, Dynamic claims that 

it prepared another Answer dated July 8, 2015. The absence of records compounds the movant’s 

failure to prepare and submit timely and appropriate responses and indicates that Dynamic’s 

failure to timely file its response to the Show Cause order was the result of an inadequate internal 

processing system, which is not a basis for reopening an assessment. Shelter Creek Capital, LLC, 

34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 

2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 

FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); 

Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). 

Moreover, as the Secretary points out, in addition to this case, Dynamic has a record of 

16 delinquent penalties totaling over $131,000 dating back to 2012. It is important that a party 

seeking the extraordinary relief of reopening a final order demonstrate good faith, See Pioneer 

Inc. Serves. Co. V. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 295 (1993), FG Hemisphere 

Assocs., LLC. V. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006). Dynamic’s 

record of unpaid final assessments is evidence of an absence of good faith and militates against 

the grant of such extraordinary relief. See Lone Mountain Processing, Inc., 35 FMSHRC 3342, 

3348-49 (Nov. 2013); Oak Grove Res., LLC, 33 FMSHRC 1130, 1132 (June 2011). 

 

 1

 Dynamic’s assertion that it was misled by the Commission to believe that the Response 

was received because no dismissal order was issued in this matter is without merit. The Order to 

Show Cause explicitly states, “[i]f you do not file an answer within [30 days], you will be in 

default under the terms of this order on the 31st day after the date of this order. No further orders 

will be issued.” (emphasis added). 

39 FMSHRC Page 1562
As a result, we find that Dynamic failed to meet its burden of establishing good cause for 

failing to meet the deadline contained in the Order to Show Cause.2

 Accordingly, we find that the 

operator has failed to demonstrate an entitlement to extraordinary relief, and thus we deny 

Dynamic’s motion. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

 2

 Having determined that Dynamic failed without good cause to timely file a Response to 

the Show Cause Order, it is not necessary to determine whether the operator had good cause in 

missing the initial deadline for filing an Answer. The Chief Judge properly entered a default 

judgment and there is no reason to grant relief. Nonetheless, the Secretary provided evidence 

showing that it mailed the Petition for Assessment to the correct address for Dynamic. Dynamic 

should have been aware that Petition for Assessment would be sent within 45 days but it never 

questioned why it had not received the petition for months. The files of Dynamic’s representative 

were, admittedly, in disarray and the operator had difficulty locating old documents, including its 

alleged initial Answer filed in response to the Order to Show Cause. It seems likely that the 

operator received the Petition for Assessment, but misplaced it before contesting it. The 

operator’s inadequate internal processing system, as we noted above, would not be a sufficient 

excuse. 

39 FMSHRC Page 1563
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1564
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 7, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On April 8, 2016, the Commission received from Brookfield 

Sand and Gravel, Inc. (“Brookfield”) a motion seeking to reopen a penalty assessment that the 

Secretary asserted had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 v. 

BROOKFIELD SAND & GRAVEL, INC. 

 

 Docket No. LAKE 2016-253-M 

 A.C. No. 12-02240-396032 

39 FMSHRC Page 1565
On November 16, 2015, Brookfield received a proposed penalty assessment from the 

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

(“MSHA”) indicate the operator mailed its contest on December 16, 2015. This was a timely 

response. See 30 U.S.C. § 815(a) (operator has 30 days within which to notify Secretary it 

intends to contest citation or penalty); (29 C.F.R. § 2700.8 (Computation of 30 days excludes 

day from which obligation to respond begins to run).1 We therefore conclude that the proposed 

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

contested it. 

 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/ William I. Althen 

 William I. Althen, Acting Chairman 

 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

 1

 Computation would be the same under the Federal Rules of Civil Procedure. See FRCP 

6(a)(1)(A) (Computation excludes day of the event that triggers the period). 

39 FMSHRC Page 1566
Distribution: 

Charlene Devalal 

Brookfield Sand & Gravel, Inc. 

8587 N. 850 West 

Fairland, IN 46126 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1567
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 7, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

801 et seq. (2012) (“Mine Act”). On November 2, 2015, the Commission received from Luck 

Stone Corporation (“Luck Stone”) 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). 

 On August 13, 2015, Luck Stone received a proposed penalty assessment from the 

Secretary. On September 14, 2015, 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 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

LUCK STONE CORPORATION 

 Docket No. VA 2016-40-M 

 A.C. No. 44-00025-388289 

39 FMSHRC Page 1568
days.1

 Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) 

indicate that a delinquency notice was mailed to the operator on October 29, 2015. 

 

 Luck Stone asserts that its employees believed that the proposed penalties had been 

properly contested, but because the contest was not sent via certified mail, there is no record of 

when the contest was sent. The Secretary does not oppose the request to reopen, and 

acknowledges that Luck Stone’s contest would have been mailed while MSHA was transitioning 

to a new office, and may not have been delivered properly. 

 

 Having reviewed Luck Stone’s request and the Secretary’s response, we find that Luck 

Stone’s apparent failure to timely contest is excusable in light of the Secretary’s problems 

receiving contests through the mail. See Allstate Materials, LLC, 38 FMSHRC 645, 646 (Apr. 

2016) (granting motions to reopen involving a similar mailing issue following the move of 

MSHA’s headquarters). Indeed, the Commission received at least 20 motions to reopen penalty 

contests that were not delivered, apparently because of MSHA’s relocation. We therefore hold 

that the circumstances here my indicate that the operator may have timely contested the proposed 

assessment, and we 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/ William I. Althen 

 William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 1

 Monday, September 14, 2015, was the first business day following the 30th day. See 29 

C.F.R. § 2700.8. 

39 FMSHRC Page 1569
Distribution: 

Abel Parker 

Luck Stone Corporation 

P.O. Box 29682 

Richmond, VA 23242 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1570
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 7, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

801 et seq. (2012) (“Mine Act”). On September 22, 2015, the Commission received from 

Fairfax Materials (“Fairfax”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on August 17, 2015, and became 

a final order of the Commission on September 16, 2015. Fairfax asserts that the proposed 

assessment contained two penalties, Citation Nos. 8915870 and 8915871. Fairfax timely 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

FAIRFAX MATERIALS 

 

Docket No. WEVA 2015-1016-M 

A.C. No. 46-08620-389553 

39 FMSHRC Page 1571
contested Citation No. 8911571 and paid the $100 penalty for Citation No. 8911570.1

 Fairfax 

contends that it had inadvertently selected the wrong penalty to contest. The Secretary does not 

oppose the request to reopen, but urges the operator to take steps to adopt procedures to ensure 

that future penalty contests are timely filed. 

 Having reviewed Fairfax’s request and the Secretary’s response, we find that Fairfax 

inadvertently checked the wrong penalty to contest, but took prompt action to correct the mistake 

when it became known. 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/ William I. Althen 

 William I. Althen, Acting Chairman 

 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

 1

 Citation No 8915171 was docket as WEVA 2015-974. On November 9, 2015, the Chief 

Administrative Law Judge approved a settlement of this case whereby Fairfax agreed to pay the 

penalty for Citation No. 8915171 in full. 

39 FMSHRC Page 1572
Distribution: 

Dennis Sullivan 

Fairfax Materials, Inc. 

14504 Greenview Dr., Suite 210 

Laurel, MD 20708 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1573
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 7, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On November 19, 2015, the Commission received from 

Greenbrier Minerals, LLC (“Greenbrier”) a motion seeking to reopen three penalty assessments 

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

U.S.C. § 815(a).1

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

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

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

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

 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

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEVA 2016-103, WEVA 2016-104, and WEVA 2016-105 involving similar 

procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

GREENBRIER MINERALS, LLC 

Docket No. WEVA 2016-103 

A.C. No. 46-09172-388781 

Docket No. WEVA 2016-104 

A.C. No. 46-09172-394014 

Docket No. WEVA 2016-105 

A.C. No. 46-09154-391339

39 FMSHRC Page 1574
 Greenbrier asserts that it timely contested the three penalty assessments at issue here, but 

the contest forms were mailed to an older address for the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”). After learning that MSHA apparently had not received the 

contest form for Assessment No. 000388781, Greenbrier preemptively requested the 

Commission reopen all three assessments and provided records showing that the operator had 

timely contested the assessments at issue. 

 MSHA’s records indicate that Assessments Nos. 000388781 (WEVA 2016-103) and 

000394014 (WEVA 2016-104) were timely contested. However, MSHA has no record of 

receiving a contest of Assessment No. 000391339 (WEVA 2016-105). 

 We note that on July 15, 2015, MSHA moved its headquarters, and that in the subsequent 

months, mail sent to MSHA’s old address was often not forwarded to its new location. See

Allstate Materials, LLC, et al., 38 FMSHRC 645, 646 (Apr. 2016). When mail was forwarded to 

MSHA’s new headquarters, it often arrived so late that MSHA was already acting under the 

presumption that the proposed penalties had become final orders of the Commission. Blue 

Diamond Coal Co., et al., 38 FMSHRC 640 (Apr. 2016). 

 The record indicates that, in the three months following the move of MSHA’s 

headquarters, Greenbrier filed timely contests in the three above-captioned cases. However, 

these contests were all mailed to MSHA’s former address. The contests for Assessment Nos. 

000388781 and 000394014 appear to have eventually been forwarded to MSHA’s new location. 2 

As these cases were not final orders of the Commission at the time the motion to reopen was 

filed, the motion to reopen Docket Nos. WEVA 2016-103 and WEVA 2016-104 is moot. 

 The proposed assessment in WEVA 2016-105 was delivered on September 14, 2015, and 

became a final order of the Commission on October 14, 2015 when it appeared that the operator 

had not filed a timely contest. Greenbrier, however, provided the Commission with a copy of a 

letter dated September 22, 2015, which purports to demonstrate that it timely mailed its contest 

to MSHA headquarters’ old address. The Secretary does not oppose the request to reopen. 

 2

 Assessment No. 00388781 was docketed as WEVA 2016-92 and was disposed on July 

22, 2016, after the parties reached a settlement. Assessment No. 000394014 was docketed as 

WEVA 2016-109 and WEVA 2016-110. On September 28, 2016, these cases were also disposed 

after the parties reached a settlement. 

39 FMSHRC Page 1575
Having reviewed Greenbrier’s request and the Secretary’s response, we find that 

Greenbrier’s failure to timely contest WEVA 2016-105 was the result of it mistakenly mailing its 

contests to MSHA’s old address. While Greenbrier should have mailed its contests to the 

address provided by MSHA in its contest instructions, we find Greenbrier’s mistake excusable in 

light of the fact that its prior contests had been successfully forwarded to MSHA and deemed 

timely filed. Accordingly, in the interest of justice, we hereby reopen WEVA 2016-105 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/ William I. Althen 

 William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1576
Distribution: 

Lorna M. Waddell, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1577
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 16, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. WEST 2015-635 

 WEST 2015-676-R 

v. WEST 2015-677-R 

CANYON FUEL COMPANY, LLC 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

DECISION 

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act” or “Act”). The case involves two citations issued to Canyon

Fuel Company by the Department of Labor’s Mine Safety and Health Administration

(“MSHA”).1 Both citations address the surface conditions at the mine opening where the

alternate escapeway for Canyon Fuel’s Sufco Mine terminates. Citation No. 8483766 alleges that

those surface conditions make the mine opening unsuitable for safe evacuation, in violation of 30

C.F.R. § 75.380(d)(5).2 Citation No. 8480766 alleges that emergency services could not reliably

reach injured persons at the mine opening, and therefore Canyon Fuel had failed to provide 24-

hour emergency transportation, as required by 30 C.F.R. § 75.1713-1(b).3

After a hearing on the merits, an Administrative Law Judge issued a decision affirming 

both citations. 38 FMSHRC 2205 (Aug. 2016) (ALJ). Canyon Fuel filed a petition for 

discretionary review, which the Commission granted. 

The Commission unanimously affirms the Judge’s finding that Canyon Fuel violated 

section 75.1713-1(b), which requires 24-hour availability of ambulance service. With regard to 

1

 A third citation, No. 8483666, was vacated by the Judge, and the Secretary of Labor did 

not appeal. 38 FMSHRC 2205, 2227 (Aug. 2016) (ALJ). Accordingly, Docket No. WEST 2015-

677-R is no longer at issue.

2

 The standard requires that escapeways “shall be . . . [l]ocated to follow the most direct, 

safe and practical route to the nearest mine opening suitable for the safe evacuation of miners.” 

30 C.F.R. § 75.380(d)(5). 

3

 The standard requires operators to “make arrangements with an ambulance service, or 

otherwise provide, for 24-hour emergency transportation for any person injured at the mine.” 30 

C.F.R. § 75.1713-1(b).

39 FMSHRC Page 1578
the citation issued for a violation of section 75.380(d)(5), two Commission members vote to 

affirm the Judge’s decision, and two Commission members vote to reverse. As a result of the 

split votes, the Judge’s decision as to that citation will stand as if affirmed. Pennsylvania Elec. 

Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 

1992). 

I. 

Factual and Procedural Background 

A. Factual Background 

 Canyon Fuel’s Sufco Mine is an underground coal mine in Utah, with approximately 20 

miners per shift in the working sections. The mine’s primary escapeway exits at the West Lease 

Portal, which has road access, and where Canyon Fuel maintains a 24-hour ambulance. 

 The alternate escapeway terminates at the 4 East Fan Portal, which exits onto a flat area 

on a mountain slope approximately 150 feet above the canyon floor. This area is approximately 

200 feet long and 50 feet wide. Three buildings housing the fan motor, a diesel generator, and 

spare parts take up more than half of the surface area. There is no road access. To leave the area 

on foot, one could hike down to a creek bed at the bottom of a canyon, then follow an unpaved 

trail for a few miles to a gravel road. This path took Canyon Fuel’s operations manager two 

hours to walk, in good weather, while uninjured. Alternatively, one could hike uphill 400-500 

yards up to a plateau, then follow a ridge for a short way to a Forest Service road which was not 

plowed in winter months. This route was not tested. 

 During an inspection in June 2014, MSHA Coal District 9 Manager Russell Riley viewed 

the mine’s escapeway maps and noticed that the 4 East Fan Portal did not have road access. He 

asked mine personnel how miners would be evacuated away from the portal in the event of an 

emergency. They responded that they did not know, and had never been asked. During the 

closeout conference, Riley expressed his concerns to mine management. He was told that the 

alternate escapeway followed the shortest path out of the mine, and that MSHA had never 

previously taken issue with the route since it was developed in 1991. Riley described MSHA’s 

failure to raise the issue for 21 years as an oversight. He left the mine without issuing a citation, 

because he was under the impression that the mine planned to take steps to relocate the alternate 

escapeway. 

 In March 2015, Riley learned that the mine did not intend to relocate the escapeway, and 

issued Citation No. 8483766. The citation alleges that the 4 East Fan Portal is not provided with 

surface road access or any dependable alternative evacuation methods in the event of a mine 

emergency, and therefore the mine’s alternate escapeway does not terminate at a mine opening 

suitable for safe evacuation as required by section 75.380(d)(5). Riley explained that miners at 

the portal would be exposed to potential hazards such as exposure to gas and smoke, and would 

be cut off from medical assistance. 

39 FMSHRC Page 1579
 MSHA proposed a new alternate escapeway which would run parallel to the primary 

escapeway and terminate at the West Lease Portal. This route would require rehabilitation, 

including widening entries, adding support, and installing signs, lifelines, reflectors, and caches 

of Self-Contained Self-Rescuers (“SCSRs”). Riley conceded that the existing route is more direct 

than the proposed route. The 4 East route is 2.34 miles long with 5 overcast crossings,4 and 

would require 2 SCSR change-outs. The West Lease route is 5.88 miles long with 12 overcast 

crossings, and would require 5 SCSR change-outs. However, Riley believed the proposed route 

to be the safer and more practical option. He noted that two-thirds of the distance could be 

travelled by vehicle, that the extra overcasts had well-built stairs and would only take a few 

seconds to traverse (assuming that miners were not injured), that miners would be unlikely to 

require SCSRs since the route was ventilated with intake air, and that it would exit at a portal 

with road access. 

In May 2015, Canyon Fuel contacted Intermountain Life Flight to arrange for helicopter 

rescue services at the 4 East Fan Portal. Although helicopters would not be able to land on the 

area outside the portal, miners could be evacuated two at a time using a hoist. However, 

helicopters would not be able to perform rescue services in winds above 10 mph, in poor weather 

or poor visibility, or at night. Because the mine operates in winter and at night, Riley determined 

that reliable 24-hour emergency transportation was not available at the 4 East Fan Portal as 

required by section 75.1713-1(b), and issued Citation No. 8480766. 

Canyon Fuel contested the first citation, asserting that the alternate escapeway met the 

requirements of section 75.380(d)(5) by following the most direct, safe and practical path to the 

surface. Contrary to the Secretary’s interpretation, Canyon Fuel argues that the purpose of the 

section is to permit the fastest, safest route to the surface. Alternatively, Canyon Fuel argues the 

conditions on the bench were safe. Canyon Fuel also contested the second citation, asserting that 

the mine complied with section 75.1713-1(b) by providing 24-hour ambulance services at the 

West Lease portal, or alternately, that the second citation should be vacated due to lack of notice. 

B. The Judge’s Decision 

With respect to the citation issued for the failure to provide a safe escapeway, the Judge 

deferred to the Secretary’s interpretation of the standard, finding it reasonable to consider surface 

conditions outside the mine when determining whether a mine opening is suitable for safe 

evacuation. 38 FMSHRC at 2214-16. The Judge rejected Canyon Fuel’s argument that the 

Secretary’s interpretation was inconsistent with MSHA’s prior practice, finding instead that the 

Secretary simply had not previously considered the issue at this mine. Id. at 2217. Having 

accepted the Secretary’s interpretation, the Judge found that the escapeway violated section 

75.380(d)(5). He found that the 4 East Fan Portal was not suitable for safe evacuation because 

miners would be stranded and exposed to hazards once they exited the mine, particularly if 

dealing with harsh weather or injury. He concluded that the Secretary’s proposed alternative, 

 4

 An overcast is an “enclosed airway that permits an air current to pass over another one 

without interruption.” Am. Geological Institute, Dictionary of Mining, Mineral, and Related 

Terms 384 (2d ed. 1997). Ramps or stairs are built to allow miners to cross over the overcast. Tr. 

53-54, 182-83. 

39 FMSHRC Page 1580
although longer and more difficult to traverse, is the most direct, safe and practical route to a 

mine opening suitable for safe evacuation, noting that it terminates at a portal with road access, 

the overcasts had well-built stairs, and it is similar in length to the primary escapeway. Id. at 

2217-18. 

The Judge also affirmed the citation issued for the failure to provide 24 hour ambulance 

service, holding that “a violation is established if, as in this case, an operator has arranged for 

emergency transportation, but that transportation is not available 24 hours a day at the alternate 

escapeway.” Id. at 2220. He explained that the standard requires emergency transportation for 

“any person injured at the mine,” but such transportation was not available for injured miners at 

the 4 East Fan Portal, because they could not be reliably reached by ambulance or helicopter. Id.

The Judge rejected Canyon Fuel’s argument regarding lack of notice, but found that it did 

indicate the operator’s belief that it was in compliance with the standard. Accordingly, he 

reduced the degree of negligence from moderate to low. Id. at 2220 n.11, 2222. 

II. 

Disposition 

For the escapeway citation, Canyon Fuel argues on appeal that the Judge erred in 

deferring to the Secretary’s interpretation and in concluding that the existing escapeway violated 

the standard. It claims that section 75.380(d)(5) requires escapeways to follow the most direct, 

safe and practical evacuation route to permit safe exit from the mine, and that the existing 

escapeway does so. With regard to the 24-hour ambulance service citation, Canyon Fuel argues 

on appeal that the Judge erred in rejecting its claim that the standard did not provide adequate 

notice of what it required. 

A. 24-Hour Ambulance Citation No. 8480766 (Docket No. WEST 2015-676-R) 

 Canyon Fuel challenged the Judge’s finding of a violation of section 75.1713-1(b).5 The 

plain language of the standard requires 24-hour emergency transportation to be provided “for any 

person injured at the mine.” 30 C.F.R. § 75.1713-1(b). Here, injured miners exiting at the 4 East 

Fan Portal may not be able to hike to the nearest road, could not be reliably reached by 

helicopter, and could not be reached at all by ambulance. Injured miners at the 4 East Fan Portal 

would be stranded without reliable immediate access to medical transportation. Common sense 

dictates that compliance requires accessibility; transportation cannot be provided on a 24-hour 

basis if the injured persons cannot be reached. The requirement for ambulance service was not 

available to “any person injured at the mine.” Hence, we conclude that Canyon Fuel was not able 

to provide the requisite 24-hour ambulance service to the portal from its existing alternate 

escapeway and was in violation of the standard. 

 5

 Canyon Fuel devoted little or no attention in its brief to contesting the violation. At oral 

argument counsel for Canyon Fuel prudently stated that its arguments on appeal were focused 

upon the notice issue. PDR at 11; Oral Arg. Tr. 14, 66. 

39 FMSHRC Page 1581
 Alternatively, Canyon Fuel argued that it could not be found to have violated the standard 

because it had never received fair notice that the standard required the 24-hour availability of 

ambulance service to the alternate escapeway portal. For the reasons set forth below, we 

conclude that Canyon Fuel had adequate notice of the requirements of the cited standard. 

 To comport with due process, laws must “give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited, so that [the person] may act accordingly.” 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Lanham Coal Co., 13 FMSHRC 1341, 

1343 (Sept. 1991). In determining whether a safety standard provides adequate notice, the 

Commission generally applies an objective standard, asking “whether a reasonably prudent 

person familiar with the mining industry and the protective purposes of the standard would have 

recognized the specific prohibition or requirement of the standard.” Ideal Cement Co., 12 

FMSHRC 2409, 2416 (Nov. 1990). Adequate notice may also be established when the language 

of the standard provides unambiguous notice of its coverage and requirements, or when an 

agency gives actual notice of its interpretation prior to enforcement. See DQ Fire & Explosion 

Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014) (citing Bluestone Coal Co., 19 

FMSHRC 1025, 1029 (June 1997)); Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 

1996); Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995). 

 As set forth above, the plain language of the standard requires 24-hour emergency 

transportation for persons injured at the mine. In determining whether emergency transportation 

arrangements comply with the standard, a reasonably prudent operator would consider 

accessibility. Had Canyon Fuel considered accessibility as a reasonably prudent mine operator, it 

should reasonably have realized that its existing arrangements at the termination point for the 

alternate escapeway — an area where one would reasonably foresee injured miners — did not 

comport with the requirements of the standard. Helicopter services that cannot operate at night or 

in bad weather, and that could not safely land on the area outside the portal, did not provide 24-

hour access; and ground ambulances simply could not reach the site due to the absence of road 

access. A reasonably prudent operator would have understood that such a situation does not 

comply with section 75.1713-1(b). 

 Indeed, evidence demonstrates that Canyon Fuel was aware of the insufficiency of its 

plan for extracting injured miners. It began making arrangements for helicopter rescue services, 

and was informed by Intermountain Life Flight that there may be a fair number of no-fly days, 

prior to the issuance of the citation. Gov. Ex. 5. These facts indicate awareness that the existing 

ambulance arrangements were insufficient, and that even helicopter services would not be able to 

guarantee 24-hour availability. Canyon Fuel should have been, and may indeed have been, aware 

that existing emergency transportation arrangements did not comply with the standard, given the 

conditions at the 4 East Fan Portal.6

 

 A reasonably prudent operator familiar with the industry and the standard’s protective 

purpose should have recognized that the existing arrangements at the mine did not meet the 

 6

 In addition, the record indicates that Canyon Fuel had never contemplated how injured 

miners would be rescued from the area prior to Inspector Riley’s visit in June of 2014. Tr. 24-25. 

39 FMSHRC Page 1582
requirements of section 75.1713-1(b). The Judge properly rejected Canyon Fuel’s claim of 

inadequate notice. We affirm the Judge’s decision with respect to Citation No. 8480766. 

B. Separate Opinions of the Commissioners Regarding Safe Escapeway 

Citation No. 8483766 (Docket No. WEST 2015-635) 

Commissioners Jordan and Cohen, in favor of affirming the Judge: 

 Canyon Fuel raises both legal issues of interpretation and factual issues as to the 

sufficiency of the cited escapeway. The Commission applies de novo review for legal issues, and 

the substantial evidence test for factual issues. See, e.g., Black Diamond Constr., Inc., 21 

FMSHRC 1188, 1194 (Nov. 1999). For the reasons below, we conclude that surface conditions 

are relevant to and may properly be considered when determining compliance with section 

75.380(d)(5), and that substantial evidence supports the Judge’s conclusion that the cited 

escapeway was not the “most direct, safe and practical route to the nearest mine opening suitable 

for the safe evacuation of miners” as required by the standard. 

1. Interpretation of Section 75.380(d)(5) 

 Section 75.380(d)(5) requires that escapeways be “located to follow the most direct, safe 

and practical route to the nearest mine opening suitable for the safe evacuation of miners.” 

30 C.F.R. § 75.380(d)(5). Citation No. 8483766 alleges that the alternate escapeway is not routed 

to a mine opening suitable for safe evacuation because there is no reliable means of evacuation 

from the surface at the portal where the escapeway terminates. The Secretary claims that “safe 

evacuation” as required by the standard involves conditions at the surface as well as 

underground, while Canyon Fuel argues that the standard only addresses underground conditions 

and the route to the surface. The Judge found that the standard was ambiguous, and that the 

Secretary’s interpretation was reasonable.7

 38 FMSHRC at 2214-16. We would affirm in result, 

finding that the plain meaning of the standard allows for consideration of surface conditions in 

determining whether a mine opening is suitable for safe evacuation. 

 The plain text of the regulation requires that escapeways be routed to the “nearest mine 

opening suitable for the safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5). Basic rules of 

grammar and interpretation dictate that “suitable for safe evacuation” modifies “mine opening,” 

rather than “most direct, safe and practical route.” Cf. Barnhart v. Thomas, 540 U.S. 20, 26 

 7

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

they are written unless the regulator clearly intended the words to have a different meaning, or 

unless such a meaning would lead to absurd results. See Dynamic Energy, Inc., 32 FMSHRC 

1168, 1171 (Sept. 2010); Island Creek Coal Co., 20 FMSHRC 14, 18-19 (Jan. 1998). If the 

language is ambiguous, the Commission generally defers to the Secretary’s interpretation unless 

it is unreasonable, i.e., it is plainly erroneous or inconsistent with the regulation, or there is 

reason to suspect that it does not reflect fair and considered judgment. Drilling and Blasting 

Syst., Inc., 38 FMSHRC 190, 194 (Feb. 2016) (citing Auer v. Robbins, 519 U.S. 452 (1997);

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)); Island Creek, 20 

FMSHRC at 18-19. 

39 FMSHRC Page 1583
(2003) (under the “rule of the last antecedent,” a limiting clause or phrase should be read to 

modify only the noun or phrase that immediately precedes it). As both parties agree, the ordinary 

meaning of “evacuation” is removal from an endangered area to a place of safety. In other words, 

evacuation is a process that ends once the miners being evacuated are no longer exposed to 

hazards. As a general matter, one might expect the majority of portals to be free of surface 

hazards, such that evacuation is complete once miners reach the surface, and compliance 

effectively turns on underground conditions. However, in order to truly provide for safe 

evacuation, the standard must be read to consider surface hazards, if and where they exist. Our 

colleagues agree that the standard requires consideration of surface conditions, rejecting Canyon 

Fuel’s argument that only underground conditions are relevant. See slip op. at 13. 

 Indeed, the Secretary offers a convincing hypothetical: If section 75.380(d)(5) were 

limited to underground conditions, then theoretically, an escapeway would be compliant if it 

followed a safe, direct and practical route to a mine opening which opened onto thin air. Clearly, 

such a mine opening is not suitable for safe evacuation. Indeed, at oral argument Canyon Fuel’s 

counsel conceded that such an escapeway would not provide for “safe evacuation.” Oral Arg. Tr. 

8. While this is obviously extreme, the point stands: To serve the purpose of the standard (safe 

evacuation), miners must be able to safely exit away from the escapeway’s termination point, as 

well as safely reach it. Cf. American Coal Co., 29 FMSHRC 941, 948 (Dec. 2007) (interpreting 

an escapeway standard to find that an escapeway had not been “provided” where it was not 

readily accessible). Section 75.380(d)(5) must logically be read to allow for the consideration of 

surface conditions.8

 Our colleagues disparage the Secretary’s hypothetical of an escapeway leading to a mine 

opening into thin air, slip op. at 15, overlooking the fact that Canyon Fuel’s position was — and 

continues to be — that the standard only addresses underground conditions and the route to the 

escapeway. In this context, the hypothetical makes complete sense. Indeed, Commissioner 

Young addressed this hypothetical to Canyon Fuel’s counsel at oral argument. Oral Arg. Tr. 7-8. 

 Canyon Fuel dismisses the risk of surface hazards, arguing that the expected hazards 

during an emergency in an underground coal mine are underground, and therefore travelling to 

the surface removes miners from the endangered area. In support, Canyon Fuel notes that the 

preamble to the final rule for section 75.380(d)(5) focuses on underground conditions. Canyon 

Fuel correctly characterizes the focus of the preamble. See 61 Fed. Reg. 9764, 9812-13 (Mar. 11, 

1996). This is a logical focus for the preamble. As Canyon Fuel states, it is reasonable to assume 

that most hazards in an underground coal mine emergency will indeed be underground, and most 

mine openings will be safe at the surface. As the Judge stated, “the drafters of the safety standard 

quite naturally assumed that once miners reach the surface, they would be safe.” 38 FMSHRC at 

2216. 

 8

 We fail to understand why our colleagues assert that the Secretary’s interpretation of 

section 75.380(d)(5) “extends beyond the plain language of the standard.” Slip op. at 15. The 

standard requires that the mine opening at which the escapeway terminates be “suitable for the 

safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5). The Secretary’s concern for “safe 

evacuation” at the surface clearly is within the standard’s plain language. See infra p. 6. 

39 FMSHRC Page 1584
 However, the preamble’s failure to address surface conditions does not mean that such 

conditions should never be considered. Rather, it simply indicates that such a scenario was so 

unlikely that the drafters of the preamble did not address it. As the Judge said, “[w]hen MSHA 

promulgated and revised the safety standard, it is unlikely that the drafters of the standard 

thought that a situation would arise in which miners escaping from a mine might be required, 

after arriving at the mine opening, to hike four to five miles along a wildlife/cattle trail over 

rough terrain or hike up to the top of a canyon. Likewise, it is unlikely that MSHA contemplated 

that injured miners would require rescue via baskets suspended from a helicopter.” Id. at 2216. 

 Preambles need not expressly detail every circumstance in which a standard may apply. 

A regulation may be applied to a scenario which was not expressly anticipated by its drafters, as 

long as it serves the regulation’s intended purpose. Oregon Paralyzed Veterans of Am. v. Regal 

Cinemas, Inc., 339 F.3d 1126, 1132–33 (9th Cir. 2003); cf. Simola, empl. by United Taconite 

LLC, 34 FMSHRC 539, 549-50 (Mar. 2012), citing People of Puerto Rico v. Shell Co., 302 U.S. 

253 (1937) (Congress would have intended section 110(c) of the Mine Act to apply to LLCs, if 

they had existed when the statute was drafted); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 

206, 212 (1998) (a statute can apply in situations not expressly anticipated by Congress). 

 Section 75.380(d)(5) requires escapeways to provide for safe evacuation, i.e., the removal 

of miners from an endangered area to a place of safety. That miners will be safe once they reach 

the surface in most situations does not mean that potential surface hazards at the mine opening 

can be ignored if and when they are relevant. The plain language and purpose of the standard 

provide for the consideration of surface conditions when determining if an escapeway follows 

“the most direct, safe and practical route to the nearest mine opening suitable for the safe 

evacuation of miners.”9

 30 C.F.R. § 75.380(d)(5) (emphasis added). 

 9

 Because we rely on the plain meaning of the standard, we need not address Canyon 

Fuel’s claim that the Secretary’s interpretation is undeserving of deference because it is 

inconsistent with prior interpretations. However, even if it were otherwise, the claim would be 

unconvincing. Canyon Fuel notes that MSHA’s Program Policy Manual (“PPM”) focuses on 

underground conditions. V MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 75, at 42-

43 (2015). However, the relevant section almost directly quotes the preamble, so the same 

analysis applies. See supra pp. 7-8. Regardless, “the Commission has never held that the 

Secretary is bound by the recommendations in a PPM.” Big Ridge, Inc., 37 FMSHRC 213, 216 

(Feb. 2015). 

Canyon Fuel also notes that the Secretary has never before taken issue with the surface 

conditions at the portal. However, prior inconsistent enforcement does not constitute a viable 

defense. See U.S. Steel Mining Co., Inc., 15 FMSHRC 1541, 1546-47 (Aug. 1993); King Knob 

Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981). An individual inspector’s decision not to 

issue a citation (or failure to notice a violation) does not create a binding interpretation on behalf 

of the Secretary. As the Judge found, the “Secretary’s failure to enforce the safety standard at the 

Sufco Mine until District Manager Riley’s visit is more accurately attributed to a lack of 

attention by MSHA than to a change in the interpretation of the standard.” 38 FMSHRC at 2217. 

District Manager Riley should be commended for recognizing the potential danger to miners 

evacuating out of the 4 East Fan Portal. 

39 FMSHRC Page 1585
2. Substantial Evidence 

In establishing a violation of section 75.380(d)(5), the Secretary’s burden is “to prove 

that, as compared to the [operator’s] designated route, there is at least one other escapeway route 

that [he] has determined more closely complies with the standard’s requirement.” Southern Ohio 

Coal Co., 14 FMSHRC 1781, 1785 (Nov. 1992). In other words, the Secretary must show that 

the operator’s route is not the most direct, safe and practical route to a mine opening suitable for 

the safe evacuation of miners. The Judge held that the Secretary’s proposed alternative route is 

the safer, more direct and practical route to a mine opening suitable for safe evacuation. We find 

that substantial evidence supports the Judge’s conclusion. 

An escapeway must lead to a “mine opening suitable for the safe evacuation of miners.” 

30 C.F.R. § 75.380(d)(5). The record supports the Judge’s conclusion that the cited escapeway is 

deficient in this respect. The mine is in a mountainous region in Utah, and operates at night and 

in the winter. See Tr. 64-67, 266, 280; Gov. Ex. 11. As previously mentioned, the escapeway 

terminates at the 4 East Fan Portal, which exits onto a flat area approximately 50 feet wide, 200 

feet long, and 150 feet above the canyon floor. Tr. 30-31, 150, 163. There is no road access. 

Tr. 23. To leave on foot, miners have to either walk down the slope to a creek bed and follow a 

cattle trail for 4-5 miles, or hike up the canyon a few hundred yards to a plateau, then walk to a 

Forest Service Road which is unplowed in the winter. Canyon Fuel’s operations manager, John 

Byars, testified that the lower route took two hours to travel on foot, while he was uninjured and 

walking in good weather. The upper route has never been tested. Tr. 232-37, 276, 300-303, 317, 

340. 

Alternatively, miners might stay on the ledge and await helicopter rescue. However, the 

ledge at the 4 East Fan Portal does not have room for a helicopter to land. Tr. 155-56; Gov. Ex. 

10. To perform a rescue, the helicopter crew would have to hover overhead and drop a basket to 

hoist miners up to the helicopter. Tr. 62, 65-66, 265-66; Gov. Exs. 5, 6. Only two miners at a 

time could be transported in the helicopter, and so as many as 10 helicopter trips might be 

necessary to bring all the miners off the ledge. Tr. 156. The hoist operation could not be 

performed at night, in winds over 10 miles per hour, in rain, or in most winter weather. Tr. 62, 

64-68, 265-67; Gov. Exs. 5, 6. Moreover, the helicopter service requires that the lowest level of 

cloud cover be at least 1000 feet above the ground, and that visibility be at least three miles. Tr. 

67; Gov. Ex. 6. Additionally, District Manager Riley and Assistant District Manager James 

Preece expressed concern that the fan at the portal discharges several hundred cubic feet of air 

from the mine up toward any helicopter which is hovering above, trying to drop a basket to hoist 

miners. This could affect the helicopter’s control, and the discharge could contain mine gases or 

smoke. Tr. 65-66, 155. 

 

Essentially, miners exiting at the portal in the event of a mine emergency would have to 

choose between hiking down a slope and then walking some distance along a cattle trail, hiking 

up a slope to a road that may not be passable, or waiting on the ledge until conditions are fair for 

helicopter rescue, all potentially in the dark, in inclement weather. They might need to do so 

while injured, or while assisting other injured miners. Depending on the nature of the injury, a 

miner may not be able to be hoisted up to the helicopter in a basket. 

39 FMSHRC Page 1586
Safe evacuation means removing miners to a place of safety. Miners who may emerge 

from the escapeway to find themselves hiking through or stranded in harsh weather, while 

injured and without access to medical assistance, have not yet reached that place of safety. 10

Based on the record, the Judge reasonably concluded that the 4 East Fan Portal is not a mine 

opening suitable for safe evacuation. 

Escapeways must also follow “the most direct, safe and practical route” to that mine 

opening. 30 C.F.R. § 75.380(d)(5). Canyon Fuel argues that MSHA’s proposed route does not 

meet those criteria, as it forces miners to stay underground in dangerous conditions for a longer 

period of time. The underground portion of the proposed route is indeed longer than the existing 

alternate escapeway, with more overcast crossings. However, substantial evidence supports the 

Judge’s conclusion that, when all relevant factors are considered, the Secretary’s proposed route 

better complies with the standard. 38 FMSHRC at 2217-18. The proposed route may be longer 

than the present alternate escapeway, but it is no longer than the primary escapeway which runs 

parallel to it. Tr. 133. Unlike the existing alternate escapeway, it is drivable for the majority of its 

length. Tr. 133-34. While there are more overcasts, Supervisory Inspector Sydel Yeager testified 

that they would not be difficult to negotiate, as they have well-built stairs. Tr. 182. Perhaps most 

importantly, MSHA’s proposed route leads miners to a portal where there is an ambulance 

continually stationed. Tr. 43. 

Furthermore, as discussed above, compliance with section 75.380(d)(5) is not limited to 

underground considerations. Here, the underground portion of the existing route is more direct 

(2.34 miles with 5 overcasts), but miners following the most likely route away from the ledge 

would still have to descend a canyon slope and walk an additional 4-5 miles before evacuation is 

complete. The underground portion of the proposed route is less direct (5.88 miles with 12 

overcasts), but evacuation is complete once miners reach the surface. When considering both 

 10 With regard to potential hazards, the Judge also noted that miners stranded on the ledge 

could be exposed to gas and smoke. 38 FMSHRC at 2218. Canyon Fuel contests this, stating that 

exhaust from the fan would disperse any gases. Of course, this assumes that the emergency 

which prompted the evacuation did not affect the operation of the fan. Regardless, even without 

the added hazard of exposure to toxic fumes, miners still potentially face being stranded in 

inclement weather without medical assistance. 

Canyon Fuel argues that neither harsh weather nor unavailability of medical care is 

relevant here. It states that concerns regarding exposure are addressed because miners can take 

shelter in the buildings on the ledge. Oral Arg. Tr. 11. However, shelter and evacuation are 

fundamentally different; if a miner is trapped in a building surrounded by hazardous conditions, 

he has not been moved away from the danger — particularly if the miner is injured and in need 

of medical attention. Canyon Fuel also states that medical assistance is more properly addressed 

by section 75.1713-1(b). However, the standards are different in scope. Section 75.1713-1(b) 

focuses on the transportation of injured individuals, whether or not there has been a mine 

emergency. Section 75.380(d)(5) focuses on ensuring that all miners can be evacuated during a 

mine emergency without being unduly exposed to hazards, one of which might be the 

exacerbation of injury due to the unavailability of medical care. 

39 FMSHRC Page 1587
underground and surface conditions, substantial evidence supports the Judge’s conclusion that 

the proposed route better complies with the standard.11

 For the foregoing reasons, we would affirm the Judge’s decision with respect to Citation 

No. 8483766. Substantial evidence supports a finding that the alternate escapeway here violated 

the plain meaning of section 75.380(d)(5). 

Acting Chairman Althen and Commissioner Young, in favor of reversing the Judge: 

We join our colleagues in affirming the violation of 30 C.F.R. § 75.1713-1(b), stated in 

Citation No. 8480766, for a failure to provide 24-hour emergency transportation at the 4 East 

Fan Portal, the site of the alternate escapeway at Canyon Fuel’s Sufco Mine. We write separately 

because we would reverse the Judge’s finding of a violation of 30 C.F.R. § 75.380(d)(5). We 

disagree with our colleagues’ reading of the language of the regulation. Moreover, we do not 

agree that the Secretary has met his burden of proving that the operator’s designated route was 

not “the most direct, safe and practical route to the nearest mine opening suitable for the safe 

evacuation of miners.” 30 C.F.R. § 75.380(d)(5). 

 Section 75.380(d)(5) states that “[e]ach escapeway shall be . . . [l]ocated to follow the 

most direct, safe and practical route to the nearest mine opening suitable for the safe evacuation 

of miners.” The focus of this provision is the route itself and more specifically addresses the 

efficiency of that route for purposes of providing miners, in the event of an emergency, quick 

and safe egress out of the mine. 

 11 Our colleagues assert that the Secretary failed to consider the “relative risks and 

benefits” of each route. Slip op. at 13-14, 16. They overlook that District Manager Riley 

considered various alternative routes for the secondary escapeway, taking into consideration the 

most direct route, among other factors. Tr. 49-56. More importantly, the Secretary’s assessment 

did not rest on a pure cost-benefit analysis. Rather, the Secretary’s finding of a violation is based 

on the fact that the existing escapeway to the 4 East Fan Portal failed to meet a basic requirement 

of section 75.380(d)(5). The termination point of this escapeway failed to provide for “safe 

evacuation of miners,” as the standard requires, and thus was not “suitable.” 30 C.F.R. 

§ 75.380(d)(5); Tr. 40-41; Sec. Br. at 26-27. 

Our colleagues further assert that “the agency has created the tension here between the 

competing obligations of the standard by questioning the previously-approved escapeway.” Slip 

op. at 14. In so arguing, our colleagues overlook the facts that (1) when asked by Riley, mine 

personnel said that they had never considered and did not know how to evacuate miners from the 

ledge at the 4 East Fan Portal (Tr. 24-25); (2) after his discussion with mine personnel in June 

2014, Riley did not issue a citation because he understood that Canyon Fuel would consider 

alternatives to the existing escapeway (Tr. 38); and (3) during the next nine months, Canyon Fuel 

not only failed to consider relocating the escapeway but did not even contact a helicopter service 

to inquire about emergency evacuation from the 4 East Fan Portal. Tr. 267. Hence, rather than 

“creat[ing] the tension,” MSHA acted in a measured way, and only issued a citation after it 

became clear that Canyon Fuel would not act to resolve the problem of unsafe evacuation at the 

termination of the alternate escapeway. 

39 FMSHRC Page 1588
Subsection (d)(5) explicitly requires the mine operator to provide the most direct, safe 

and practical route to the nearest mine opening. These terms clearly identify the characteristics 

the Secretary must use to evaluate whether the operator’s designated escapeway is preferable to 

an alternative route. Hence, the Secretary must evaluate and compare alternatives and determine 

which is the most (1) direct, (2) safe and (3) practical route to (4) the nearest mine opening (5) 

suitable for the safe evacuation of miners. 

The plain, ordinary meaning of the term “direct, safe and practical route” is not in 

dispute. This case turns on the meaning of “suitable for the safe evacuation of miners.” The 

circumstances here present an evident tension between the two clauses. In seeking to resolve that 

tension, the Secretary has not fully considered the implications his solution will have on miner 

safety. This is contrary to fundamental principles of administrative law: 

Proper administrative interpretation of a statute, rule, or regulation 

must meet the following three requirements: (1) the factual 

findings underlying the interpretation must be supported by 

substantial evidence, Greater Orlando Aviation Auth. v. FAA, 939 

F.2d 954, 958 (11th Cir. 1991); HHS v. FLRA, 885 F.2d 911, 915 

(D.C. Cir. 1989) (citations omitted); (2) the agency must offer a 

satisfactory explanation for its actions, Motor Vehicle Mfrs. Ass’n 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 . . . (1983); and 

(3) the interpretation must be consistent with the statute, rule, or 

regulation being interpreted, U.S. v. Larionoff, 431 U.S. 864, 873 

. . . (1977). 

Rocky Mountain Helicopters, Inc. v. FAA, 971 F.2d 544, 547 (10th Cir. 1992). The Secretary’s 

interpretation fails on all three counts. 

First, there is no substantial evidence regarding the comparative safety trade-offs 

presented by the two escapeways. The Secretary can cite nothing in the record showing that he 

even considered this aspect, even though his preferred route would have the miners remain 

underground for hours longer. This also renders the explanation for his policy choice 

unsatisfactory, as explained further below. Finally, in choosing to elevate one clause of the 

standard — that requiring a “safe” location upon evacuation — over the prime imperative to 

choose the most direct, safe and practicable route, the Secretary has made a decision at odds with 

the express terms of the standard. 

The record clearly establishes that the operator’s secondary escapeway to the 4 East Fan 

Portal is safer, more direct, and more practical than the Secretary’s alternative route. First, it is 

much shorter. The Secretary’s chosen alternative escapeway is to the West Lease Fan Portal, 

which at 5.9 miles long is more than twice the distance than the 2.3-mile escapeway via the 4 

East Portal. Canyon Fuel Ex. 7; Tr. 49-50. 

Additionally, the operator’s route has fewer obstacles, such as overcasts, making it easier 

to traverse — especially with injured miners. Further, this opening is the nearest to the active 

39 FMSHRC Page 1589
working sections where miners would be working. The Secretary’s route requires 12 overcast 

crossings compared to 5 in the 4 East Portal. Canyon Fuel Exs. 2, 7; Tr. 244, 247-48, 254. 

While the Secretary downplays these difficulties, Gary Leaming, Canyon Fuel’s safety 

manager, testified that the West Lease Fan Portal is the most difficult escapeway to travel. 

Tr. 243. Thus, the operator’s designated escapeway provides the shortest, most direct route out of 

the active working sections of the mine in the case of an emergency. Tr. 99, 207, 225-26, 297-98. 

This must be the primary consideration, absent extreme conditions that would make the shortest, 

most direct and practical route unsuitable for the safe evacuation of miners. 

The Secretary has not explained why it must be preferable to expose miners to the 

hazards of a longer, more arduous journey through the perils imposed by an underground mine 

disaster. We concede that the conditions outside the mine at the 4 East Fan Portal are not ideal, 

but they are outside the mine. Should an emergency occur, the most urgent and primary concern 

is getting miners out of the mine quickly and safely. 

Once miners have exited the mine, they should ideally be in safe conditions away from 

dangers both underground and on the surface. However, the issue before us is not limited to only 

the route taken from the active workings to the outside, or only the conditions encountered 

outside. The standard requires both. Here, neither option clearly meets both of the standard’s 

criteria, and there is thus no “ideal” alternative. 

The question posed by the standard, then, is “safe compared to what?” The Secretary 

never addresses this, and the failure to do so renders his choice impermissibly arbitrary. It is a 

policy prerogative ungrounded on any consideration of the real problem, whose resolution may 

have real-world, life-and-death consequences for miners. 

Our colleagues seem untroubled by the Secretary’s myopia and are more than willing to 

fill in the interpretive gap by assuming that the Secretary’s alternative is safer, without any 

evidentiary support for this logical leap. This is clear error: 

The Supreme Court has stated that “a rational connection between 

the facts found and the choice made” would be a satisfactory 

explanation, but that where the agency has failed to adequately

supply this, “[t]he reviewing court should not attempt itself to 

make up for such deficiencies; we may not supply a reasoned basis 

for the agency’s action that the agency itself has not given.” 

Rocky Mountain Helicopters, 971 F.2d at 548, (quoting Motor Vehicle Mfrs., 463 U.S. at 43

(citations omitted)). 

Thus, we cannot assume that the Secretary has a good reason for his policy choice: It 

must be shown. The Secretary is obliged to supply a rationale and a factual basis that takes into 

account the relative risks and benefits of each route and must articulate a reasoned judgment as 

to why his route — clearly not the most direct, safe or practical, in terms of the route itself — 

must be adopted. The record is entirely barren of such proof. 

39 FMSHRC Page 1590
We note that the agency has created the tension here between the competing obligations 

of the standard by questioning the previously-approved escapeway. The Secretary must thus 

“acknowledge and account for a changed regulatory posture the agency creates.” Portland 

Cement Ass’n v. EPA, 665 F.3d 177, 187 (D.C. Cir. 2011). This duty, too, has been ignored. 

Indeed, the Secretary appears entirely oblivious to the requirement to exercise a thoughtful, 

comparative analysis before choosing between two less-than-perfect alternatives. 

When the question of regulatory interpretation involves a choice between two options, 

neither of which clearly meets the requirements of the standard, the question is not really one of 

interpreting the meaning of each term contained in the regulatory standard. Rather, the inquiry 

focuses on whether the Secretary has demonstrated that the operator’s choice is either not 

compliant with the plain terms of the standard or, as is the issue in this case, is not a “suitable” 

choice. Cf. Peabody Coal Co., 18 FMSHRC 686, 690-91 (May 1996) (stating that in plan 

disputes, the Secretary bears the burden of proving to the Judge that an operator’s proposed plan 

or revision was unsuitable to the mine, which is reviewed by the Commission under the 

substantial evidence standard); Prairie State Generating Co. v. Sec’y of Labor, 792 F.3d 82, 90-

91 (D.C. Cir. 2015) (noting that the plan approval process is akin to notice-and-comment 

rulemaking, in which mine operators receive written notice of reasoning and bases for the 

Secretary’s initial plan-suitability determination). 

Here, the issue is whether the Secretary has proven that the operator’s 4 East Fan Portal, 

which clearly is the most direct, safe and practical route to the nearest mine opening, was not 

“suitable for the safe evacuation of miners.” When viewed properly against the gravamen of the 

Secretary’s policy choice, the evidence does not support the Secretary’s finding of a violation of 

section 75.380(d)(5). 

As our colleagues acknowledge, the Secretary’s burden is “to prove that, as compared to 

the [operator’s] designated route, there is at least one other escapeway route that [he] has 

determined more closely complies with the standard’s requirement.” Southern Ohio Coal Co., 14 

FMSHRC 1781, 1785 (Nov. 1992) (emphasis added). Hence, our colleagues explain that the 

Secretary must show “that the operator’s route is not the most direct, safe and practical route to a 

mine opening suitable for the safe evacuation of miners.” Slip op. at 9. 

Having correctly stated the law, our colleagues fail to apply it. The Secretary’s failure to 

meet the burden stated in Southern Ohio Coal is manifest in this case. He has not explained why 

the most direct, safe and practical route out of the mine is less acceptable — indeed, 

unacceptable — because the relative safety of the operator’s route likely puts them in greater 

danger than the alternative route. 

The facts clearly do not support the Judge’s finding that the operator’s route does not 

meet the requirements of section 75.380(d)(5) because the Secretary focused entirely on only one 

part of a binary standard. The Secretary must concede that the operator’s route is superior as an 

evacuation route. But he asserts that the imperfect refuge available at the 4 East Fan Portal 

renders the escapeway “[un]suitable for the safe evacuation of miners.” 

 

39 FMSHRC Page 1591
In so doing, the Secretary posits the extreme example of a route which terminates at a 

plummet into space. Yet this amounts to a reductio ad absurdum. Obviously, an escapeway that 

exposes miners to a deadly hazard on their exit from the mine would not constitute a “safe 

evacuation.” But miners exiting from the 4 East Fan Portal would not have faced the certain 

death postulated by the Secretary’s hypothetical. On the contrary, the miners would have been 

“safely evacuated from the mine.” 

Whether they would be safe enough, relative to the alternative approach — which would 

have confined them inside the mine for hours longer, but would have ensured better egress from 

the mine site to medical treatment facilities — is a valid question. The problem is that the 

Secretary never seeks to address that question. 

The answer is essential. As the Supreme Court has noted, “[n]o regulation is 

‘appropriate’ if it does significantly more harm than good.” Michigan v. EPA, 135 S. Ct. 2699, 

2707 (2015). In order to determine whether the Secretary’s approach conforms to this standard, 

he must consider the alternatives and compare their relative costs and benefits. He has failed to 

do so here. 

Instead of making a qualified determination that the record cannot support, our 

colleagues focus instead on the surface conditions outside the 4 East Fan Portal in isolation, and 

argue for an interpretation of section 75.380(d)(5) that extends beyond the plain language of the 

standard. This interpretation disregards Commission precedent governing the interpretation and 

application of, and compliance with, standards applicable during emergency conditions. 

We have previously agreed with the Secretary’s contention that violations of standards 

that become relevant only during a mine emergency must take into account the occurrence of the 

emergency when determining if the violation is S&S. Cumberland Coal Res., LP, 33 FMSHRC 

2357, 2366-67 (Oct. 2011), aff’d, 717 F.3d 1020 (D.C. Cir. 2013). Ironically, the Secretary has 

generally failed to contemplate the type of emergency that would require an evacuation in this 

case. 

We must assume that this would be a severe emergency requiring evacuation of the 

workforce. The emergency must be of such nature as to render the primary escapeway 

unsuitable, because our concern in this case lies entirely with the secondary escapeway. Further, 

we must acknowledge certain conditions the Secretary does take into account, including 

numerous injured miners, some with serious injuries that would require professional medical 

attention, and the presence of noxious gases emanating from the mine. Indeed, section 75.380 is 

in Subpart D of Part 75, which provides the mandatory standards for mine ventilation. The 

problem with the Secretary’s thesis is that it utterly disregards the fact that these conditions, 

especially smoke and gases, would also exist inside the mine, an environment in which the 

miners would be confined for several hours longer if egress were required instead from the West 

Lease Fan Portal alternative preferred by the Secretary. 

As noted above, the Secretary offers no proof that he ever has considered the relative 

risks and benefits of the two alternatives or that he has reached a determination that fairly 

contemplates the qualitative differences between a route that is more direct, safer and more 

39 FMSHRC Page 1592
practical — increasing the likelihood of a successful escape from the dangers inside the mine — 

versus a route that may afford better survivability once the miners have exited the mine. Instead 

of assuming the emergency, the Secretary assumes a safe exit through a more arduous route. This 

is, tragically, not a valid assumption in a mine-wide emergency. 

Clearly, the standard at issue is not concerned solely, or even primarily, with surface 

conditions outside a mine portal. In skewing the analysis toward that consideration, though, the 

Secretary, the Judge, and our colleagues fail to take into consideration the overwhelming 

evidence that the 4 East Portal is the most direct, safe and practical route to the nearest mine 

opening. 

As we noted before, this is not a case of self-evident unsuitability.12 There is no 

contention that the portal was obscured, inaccessible, or otherwise unusable. Our colleagues’ 

entire decision rests on the theory that the surrounding area outside the portal was not suitable 

because it failed to ensure ready and immediate access to professional medical care. However, 

that is not what the standard requires, and pretending as though it does disregards the fact that 

miners inside the mine would also be denied such care until they have been successfully 

evacuated. 

Our colleagues contend that to interpret the regulation in any limiting manner that 

excludes consideration of the surface conditions would undermine the purpose of the standard. 

However, they fail to address the fact that the regulation makes no mention of surface conditions 

and does not identify specific requirements that would apply to surface conditions surrounding a 

mine portal access to an escapeway.13 Significantly, the remaining provisions of section 

 12 Our colleagues somehow believe otherwise, asserting that the Secretary’s 

representative did make a determination that the East Fan Portal route was per se unsuitable 

because it would not safely evacuate the miners. See slip op. at 11 n.11. That is patently false. 

The miners would in fact be outside the mine, with indoor shelter, provisions, and rudimentary 

first-aid available, not a plummet into the abyss as suggested by the Secretary. The problem is 

the Secretary’s utter failure to consider the vast, gray expanse between evacuation to perfect 

safety and ejection into the abyss. This case is thus entirely about relative safety, because neither 

condition of the standard may be ideally served. 

 13 Our colleagues even dismiss that the agency limited its consideration of escapeway 

factors, in both the rule’s preamble and MSHA’s Program Policy Manual, to only underground 

conditions. They state that the agency could not have foreseen every possibility that could arise 

and would need to be addressed by the rule. Slip op. at 7-8. However, underground coal mining, 

which is an inherently dangerous occupation, clearly occurs in remote geographic regions, and 

the requirement for 24-hour access to emergency medical care was clearly contemplated by 

MSHA and is addressed in a separate rule. See 30 C.F.R. § 75.1713-1(b); slip op. at 4-5. Crafting 

an interpretation that extends the application of the rule to matters beyond the explicit terms of 

the rule is tantamount to creating a rule without engaging in mandatory rulemaking, which is a 

violation of the APA. See RAG Shoshone Coal Corp., 26 FMSHRC 75, 82-87 (Feb. 2004) 

(holding that a change in occupational code amounted to substantive rule change, rather than an 

interpretation, requiring rulemaking). 

39 FMSHRC Page 1593
75.380(d) in particular address other characteristics of the escapeway, such as suitability for 

injured miners to traverse, the height and width of the passageway, clear markings along the 

route, and the provision of certain safety equipment on the route, among other requirements 

related to the underground conditions of the escapeway. Nowhere in the entire provision does it 

address or define suitable surface conditions at the mine portal. 

The concerns our colleagues raise about emergency vehicle access to injured miners after 

they have left the mine is addressed in another provision, which the Secretary cited in this case 

and which the Commission has unanimously sustained. Slip op. at 4-5. We agree that miners 

need access to emergency services and remote locations present problems with facilitating that. 

However, section 75.380(d)(5) does not address this requirement, expressed in section 75.1713-

1(b). Interpreting section 75.380(d)(5) to require expedited access to medical care is 

unnecessarily duplicative of section 75.1713-1(b). 

Our colleagues also rely on speculative evidence of contaminated air exiting from the 

mine portal onto the miners at the landing as evidence of the unsuitability of this escapeway. Slip 

op. at 10 n.10. But the Secretary did not offer reliable evidence about the operation of the fan, 

and our colleagues’ affirmance of the Secretary’s opinion disregards that the noxious air that 

concerns them so would be coming from inside the mine.14 

In sum, the Secretary proposes a half-considered regulatory solution in contravention of 

well-settled tenets of administrative law. See Motor Vehicle Mfrs Ass’n, 463 U.S. at 43 (“[A]n 

agency rule would be arbitrary and capricious if the agency . . . entirely failed to consider an 

important aspect of the problem. . . .”). We understand our colleagues’ concerns and agree that 

an effective escapeway must not only provide a safe passage for miners to get out of the mine, 

but must also lead them to a safe location once outside of the mine. But substantial evidence does 

not demonstrate that the Secretary even considered, let alone made a reasoned determination in 

concluding, that the operator’s designated route was inherently unsuitable for the safe evacuation 

of miners. 

 

Accordingly, we would vacate and reverse the Judge’s decision and vacate Citation 

No. 8483766 as the product of arbitrary and capricious decision making. 

 14 The Secretary has argued that the mine’s ventilation system “could be blowing toxic 

gases out of the air.” Oral Arg. Tr. 40. There is no factual basis for assuming that the ventilation 

system in the mine will continue to function in an emergency that requires evacuation of the 

workforce. Indeed, numerous standards presume that miners will be inundated in smoke and will 

require supplemental air. See, e.g., 30 C.F.R. § 75.380(d)(7) (lifelines required due to presumed 

poor visibility); 30 C.F.R. §§ 75.1506(c)(2), 75.1714-3, 75.1714-4 (SCSRs mandated at intervals 

to ensure miners will have access to emergency air supplies). 

39 FMSHRC Page 1594
III. 

Conclusion 

 For the foregoing reasons, we conclude that Canyon Fuel had adequate notice that it was 

not in compliance with section 75.1713-1(b) and affirm the Judge’s decision with respect to 

Citation No. 8480766. With respect to Citation No. 8483766, two Commissioners vote to affirm 

the Judge’s decision and two Commissioners vote to reverse. Accordingly, the Judge’s decision 

as to that citation stands as if affirmed. Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 

(Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992). 

 /s/ William I. Althen 

 William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 /s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1595
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 17, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

SHERWIN ALUMINA COMPANY, LLC. 

Docket No. CENT 2017-25-M 

A.C. No. 41-00906-417961

39 FMSHRC Page 1596
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

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

order. See 29 C.F.R. § 2700.28. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

39 FMSHRC Page 1597
Distribution: 

Christopher V. Bacon, Esq. 

Vinson & Elkins, LLP 

1001 Fannin St. 

Suite 2500 

Houston, TX 77002-6760 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1598
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 17, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

EMBER ENERGY, LLC 

Docket No. KENT 2017-67 

A.C. No. 15-19459-412128

39 FMSHRC Page 1599
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

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

order. See 29 C.F.R. § 2700.28. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young_ 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

39 FMSHRC Page 1600
Distribution: 

Joseph G. Jacobs 

Revelation Energy, LLC 

P.O. Box 249 

Stanville, KY 41659 

John Collins 

P.O. Box 249 

Stanville, KY 41659 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1601
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 17, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

LHOIST NORTH AMERICA OF 

 VIRGINIA, INC. 

 Docket No. VA 2017-9-M 

 A.C. No. 44-00082-417992 

39 FMSHRC Page 1602
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

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

See 29 C.F.R. § 2700.28. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 

39 FMSHRC Page 1603
Distribution: 

Charles H. Morgan, Esq. 

Alston & Bird, LLP 

1201 West Peachtree St. 

Atlanta, GA 30309 

Mike Riggs, Foreman 

Lhoist North America of Virginia, Inc. 

2093 Big Stoney Creek Rd. 

Ripplemead, VA 24150 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1604
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 17, 2017 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CROELL REDI-MIX INC. 

 

 

 Docket No. WEST 2017-45-M 

 A.C. No. 39-01494-414819 

39 FMSHRC Page 1605
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

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

See 29 C.F.R. § 2700.28. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1606
Distribution: 

Croell Redi-Mix 

230 Croell Drive 

P.O. Box 1352 

Sundance, WY 82729 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

39 FMSHRC Page 1607

ADMINISTRATIVE LAW JUDGE DECISIONS
39 FMSHRC Page 1608
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 

August 2, 2017 

 

DECISION AND ORDER

Appearances: Daniel Brechbuhl, Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado for Petitioner 

 Daniel P. Foltyniewicz, Risk Management Network, Inc., Wheaton, 

Illinois for Respondent 

Before: Judge McCarthy 

I. STATEMENT OF THE CASE 

 This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Docket No. 

LAKE 2016-0365 involves one 104(d)(1) Order charging Respondent Morris Sand and Gravel, 

Inc. (“Respondent”) with an unwarrantable failure to comply with the Secretary of Labor’s 

mandatory safety standard set forth in 30 C.F.R. § 56.9300(a). 

 A hearing was held in Chicago, Illinois on March 20, 2017. During the hearing, the 

parties offered testimony and documentary evidence.1

 Witnesses were sequestered. The issues 

presented are whether Respondent violated the cited standard, and if so, whether the significant 

and substantial (S&S), gravity, negligence, and unwarrantable failure designations were 

appropriate, and what civil penalties should be assessed. For the reasons discussed below, I 

affirm Order No. 8890960, as written, and assess a civil penalty of $2,000.

 1

 In this decision, “Tr. #” refers to the hearing transcript, “Jt. Ex. #” refers to joint 

exhibits, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex. #” refers to the Respondent’s 

exhibits. Jt. Ex. 1, P. Exs. 1-9, and R. Exs. 1-9 were received into evidence. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MORRIS SAND & GRAVEL, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2016-0365 

A.C. No. 11-03114-412496 

Mine: Morris Sand & Gravel, Inc. 

39 FMSHRC Page 1609
II. PRINCIPLES OF LAW 

A. Gravity and Significant and Substantial (S&S) 

The Mine Act describes an S&S violation as one “of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or other mine safety or health 

hazard.” 30 U.S.C. § 814(d)(1). By contrast, the gravity of a violation “is often viewed in terms 

of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 

1996). The gravity component of the penalty assessment is not synonymous with finding that a 

violation is S&S, but may be based on the same evidence. The gravity inquiry is concerned with 

the effects of a hazard, while the S&S analysis focuses on the reasonable likelihood of serious 

injury. See Consolidation Coal Co., 18 FMSHRC at 1550 (explaining that “the focus of the 

[gravity inquiry] is not necessarily on the reasonable likelihood of serious injury . . . but rather on 

the effect of the hazard if it occurs”). Alternatively, 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.” Cement Div., 

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety –

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4. (Jan. 1984).2

 The S&S 

determination should be made assuming “continued normal mining operations.” U.S. Steel

Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). This evaluation considers the length of time 

that the violative condition existed prior to the citation and the time it would have existed if 

normal mining operations had continued, without any assumptions regarding abatement. Elk 

Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984).3 

 2

 The Secretary, mine operators, and the federal appellate courts have accepted the

Mathies test as authoritative. See Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 160 

(4th Cir. 2016) (noting federal appellate courts’ uniform adoption of Mathies test and parties’ 

recognition of authority of the test); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 

(D.C. Cir. 2016) (applying Mathies criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health 

Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); 

Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies

criteria). 

 

3 See also Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. 

Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 

11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek, 811 F.3d at 165-66 (upholding 

Commission’s rejection of “snapshot” approach to evaluating S&S for accumulations violation); 

Mach Mining, 809 F.3d at 1267-68 (discussing the operative timeframe for violations in the 

context of S&S analyses). 

39 FMSHRC Page 1610
Once the fact of the violation has been established, step two of the Mathies analysis 

focuses on “the extent to which the violation contributes to a particular hazard.” The 

Commission has recently clarified that this step is “primarily concerned with likelihood of the 

occurrence of the hazard against which a mandatory safety standard is directed.” Newtown 

Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016) (citing Knox Creek Coal Corp., 

811 F.3d at 163). Step two of the Mathies test involves a two-part analysis: 1) identification of 

the hazard created by the violation of the safety standard; and 2) “a determination of whether, 

based on the particular facts surrounding the violation, there exists a reasonable likelihood of 

occurrence of the hazard against which the mandatory safety standard is directed.” Newtown 

Energy, 38 FMSHRC at 2038. 

The third step of the Mathies analysis is “primarily concerned with gravity,” and whether 

the hazard identified in step two “would be reasonably likely to result in injury.” Id. at 2037 

(internal citations omitted). The third step’s inquiry is whether the hazard, assuming it occurred, 

would likely result in serious injury. Knox Creek, 811 F.3d at 161-65. The question in applying 

the third step of Mathies “is not whether it is likely that the hazard . . . would have occurred[,]” 

but “whether, if the hazard occurred (regardless of likelihood), it was reasonably likely that a 

reasonably serious injury would result.” Peabody Midwest Mining, LLC v. Fed. Mine Safety & 

Health Rev. Comm’n, 762 F.3d 611, 616 (7th Cir. 2014). The Secretary “need not prove a 

reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Res., LP, 33 

FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc., 32 FMSHRC 1257, 1281 

(Oct. 2010)). Further, “the absence of an injury-producing event when a cited practice has 

occurred does not preclude a determination of S&S.” Musser Engineering, Inc., 32 FMSHRC at 

1281 (citing Elk Run Coal Co., 27 FMSHRC at 906); Blue Bayou Sand & Gravel, Inc., 

18 FMSHRC 853, 857 (June 1996). 

The fourth Mathies factor requires the Secretary to show a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3. As a 

practical matter, the last two Mathies factors are often combined in a single showing. Id. 

Consistent with this approach, MSHA inspectors determine whether a violation meets the criteria 

for S&S by the likelihood of injury and the expected severity of injury, which correspond to the 

third and fourth Mathies factors.4

 

B. Negligence 

Negligence is not defined in the Mine Act. The Commission has found that “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

 4

 Per training, MSHA inspectors do not designate a violation as S&S unless item 10.A on 

the citation form is marked “reasonably likely,” “highly likely,” or “occurred,” and item 10.B is 

marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See MSHA, 

PROGRAM POLICY MANUAL, Vol. I, § 104 (2003). 

39 FMSHRC Page 1611
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 

6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 

(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by 

standard violated); Spartan Mining, 30 FMSHRC 669, 708 (Aug. 2008) (negligence inquiry 

circumscribed by scope of duties imposed by regulation violated). In this regard, the gravamen 

of high negligence is “an aggravated lack of care that is more than ordinary negligence.” Brody 

Mining, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344, 350 

(Apr. 1998)). Commission judges are not required to apply the level-of-negligence definitions in 

Part 100 penalty regulations and may evaluate negligence from the starting point of a traditional 

negligence analysis rather than from the Part 100 definitions. Brody Mining, 37 FMSHRC at 

1701; accord Mach Mining, 809 F.3d at 1263-64. Thus, in making a negligence determination, a 

Commission judge is not limited to an evaluation of allegedly mitigating circumstances, but may 

consider the totality of the circumstances holistically. Under such an analysis, an operator is 

negligent if it fails to meet the requisite high standard of care under the Mine Act. Brody 

Mining, 37 FMSHRC at 1701. 

C. Unwarrantable Failure 

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 

30 U.S.C. § 814(d). The Commission has defined an unwarrantable failure as aggravated 

conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 

2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Emery Mining 

Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, 52 F.3d at 136. 

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is 

determined by looking at all the facts and circumstances of each case to see if aggravating factors 

exist. The Commission examines seven aggravating factors, which include the duration of the 

violation, the extent of the violative condition, whether the operator has been placed on notice 

that greater efforts are necessary for compliance with the standard, the operator's efforts in 

abating the violative condition, whether the violation is obvious, whether the violation poses a 

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

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 

31 FMSHRC 1346, 1350-51 (Dec. 2009); Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000). The Commission and its judges must take into account all of the factors, but may 

determine, when exercising discretion, that some factors are not relevant, or are much more or 

less important than other factors under the circumstances. IO Coal Co., 31 FMSHRC at 1351; 

Excel Mining, LLC, 497 F. App'x 78, 79 (D.C. Cir. 2013); Consolidation Coal Co., 

23 FMSHRC 588, 593 (2001). 

D. Penalty Criteria 

 

The Commission has the independent authority to assess all civil penalties. 

30 U.S.C. § 820(i). In so doing, Commission Judges must consider six statutory criteria set forth 

in section 110(i), and the deterrent purpose of the Mine Act. The six statutory criteria are: 1) the 

operator’s history of previous violations, 2) the appropriateness of the penalty to the size of the 

business, 3) the operator’s negligence, 4) the operator’s ability to stay in business, 5) the gravity 

39 FMSHRC Page 1612
of the violation, and 6) any good-faith compliance after notice of the violation. See, e.g., 

Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). Equal 

weight need not be given to each criterion. Spartan Mining, 30 FMSHRC at 723. 

 Commission Judges are neither bound by the Secretary’s proposed assessment nor by his 

Part 100 regulations governing the penalty proposal process. American Coal Co., 

38 FMSHRC 1987, 1993-94 (Aug. 2016) (citing Sellersburg Stone Co. v. FMSHRC, 

736 F.2d 1147, 1150-51 (7th Cir. 1984); Mach Mining, 809 F.3d at 1263-64 (MSHA Part 100 

regulations are not in any way binding in Commission proceedings)). The Judge must provide 

an explanation for a substantial divergence between the Secretary’s proposed penalty and the 

Judge’s assessed penalty. Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983). The 

Commission reviews a Judge’s civil penalty assessment under an abuse of discretion standard. 

Douglas R. Rushford Trucking, 22 FMSHRC at 601 (citation omitted). 

III. FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW 

A. Stipulations of Fact and Law 

The parties have stipulated to the following: 

1. Morris Sand & Gravel, Inc. (“Morris”) is subject to the jurisdiction of the Federal Mine 

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

2. The Administrative Law Judge has jurisdiction over this proceeding pursuant to §105 of 

the Act. 

3. The citation at issue in this proceeding was properly served upon Morris as required by 

the Mine Act. 

4. The citation at issue in this proceeding may be admitted into evidence by stipulation for 

the purpose of establishing its issuance. 

5. Morris demonstrated good faith in abating the violation. 

6. The penalty proposed by the Secretary in this case will not affect the ability of Morris to 

continue in business. 

7. Morris was at all times relevant to this proceeding engaged in mining activities at the 

Morris Sand & Gravel Mine located in or near Morris, Grundy County, Illinois. 

8. Morris’ mining operations affect interstate commerce. 

9. Morris is an “operator” as that word is defined in §3(d) of the Mine Act, 30 U.S.C. 

§803(d), at the Morris Sand & Gravel Mine (Federal Mine I.D. No. 11-03114) where the 

contested citation in this proceeding was issued. 

39 FMSHRC Page 1613
10. On the date the citation in this docket was issued, the issuing MSHA metal/non-metal 

mine inspector was acting as a duly authorized representative of the United States 

Secretary of Labor, assigned to MSHA, and was acting in his official capacity when 

conducting the inspection and issuing the citation. 

Jt. Ex. 1. 

B. General Factual Background of Order No. 8890960 

Order No. 8890960 was issued on April 20, 2016 by MSHA inspector Peter Ackley, who 

was conducting a regular E01 inspection at Respondent’s Morris Sand & Gravel mine.5 P. Ex. 3. 

Respondent’s sand and gravel mine contains two dredging lakes, referred to as the “north” or 

“blue” lake, and the “south” or “white” lake. Tr. 38-39.6

Prior to beginning his inspection, Ackley reviewed the mine’s records and held a preinspection conference with Tom Van Cura, who had been working as a mechanic at 

Respondent’s mine for about 35 years. Tr. 30-31, 36-38, 143-44; see also P. Ex. 7 at 16; P. Ex. 5 

at 17.7 During the pre-inspection conference and his review of mine records, Ackley learned that 

on May 20, 2015, Respondent had opened the south lake for dredging operations. Tr. 30-32. 

Although the north lake had been previously inspected by MSHA during past E01 inspections, 

the south lake had not. The most recent inspection prior to Ackley’s inspection was conducted 

by MSHA inspector Don Reed on November 12, 2014, about five months prior to when 

Respondent opened the south lake. Tr. 29-32; P. Ex. 8 at 1. Therefore, the south lake had never 

been inspected by MSHA prior to Ackley’s arrival at the mine site on April 21, 2016. 

 After the pre-inspection conference, Ackley inspected the north lake where miners were 

actively working. Tr. 36. Van Cura accompanied Ackley as Respondent’s representative. Tr. 

144-46. After inspecting the north lake, Ackley and Van Cura used a public highway to access 

the south lake. Tr. 39. As they approached the south lake, Ackley noted that there were no 

berms separating the road and the edge of the lake on the west and south sides of the lake, and 

only partial berms on the north side. Tr. 39; P. Ex. 5 at 1-13. Ackley also observed tire and 

excavator tracks on the south, west, and north sides of the lake. Some of the tire tracks were as 

close as two feet from the edge of the lake. Tr. 41, P. Ex 5 at 2-6 (south side), 7-12 (west side), 

 5

 Ackley estimated that he has inspected ten different dredging operations during his 

seven-and-a-half years as an MSHA inspector. Tr. 27. 

6

 The two dredging lakes are divided by a public highway that runs from west to east 

between the lakes. Tr. 50-51. 

7

 Despite working at Respondent’s mine site, Van Cura is employed by Respondent’s 

parent company, D Construction, rather than by Respondent. Ackley was not aware of this fact. 

Tr. 30-31, 143-44. Van Cura testified that he was instructed—presumably by Mike Lenzie, 

Respondent’s supervisor—to accompany Ackley during his E01 inspection. Tr. 144-46; see also 

Tr. 97. In any event, I find that Van Cura acted as Respondent’s walk around agent with 

apparent authority during Ackely’s inspection. 

39 FMSHRC Page 1614
13 (north side). The path on the south side of the lake was used by vehicles traveling around the 

south lake. The path on the west side went to the stripping area, and the path on the north side 

was similarly used to store mobile equipment. Tr. 74-75. There was no sign of activity on the 

east side of the south lake, so Ackley determined that there was no need for berms there. Tr. 88. 

Based on the proximity of the tire tracks to the three-to-four-foot drop-off at the edge of 

the lake, Ackley issued Order No. 8890960, alleging a violation of 30 C.F.R. § 56.9300(a),8

based on the following condition: 

There were no berm [sic] or guardrail [sic] provided for the travel way 

around the south dredge lake. The unbermed area was on three sides of 

the lake. The south side drop off to the water was approximately 3 to 4 

feet. Mobile equipment tracks were observed approximately 2 feet from 

the edge. With no berms or guardrails provided to serve as a warning, 

mobile equipment may travel over the edge of the roadway. Should the 

mobile equipment using the roadway go over the edge it would result in 

the operator receiving serious injuries. The supervisor has been at the 

south lake daily to do work place exams. The supervisor engaged in 

aggravated conduct constituting more than ordinary negligence in that he 

did not take any action to correct the condition. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

P. Ex. 3. 

Ackley brought the alleged violation to Van Cura's attention and explained that there was 

a drop-off sufficient to cause a vehicle to overturn or endanger persons in equipment. Tr. 73-74. 

While Van Cura agreed with Ackley’s assessment concerning the depth of the drop-off, Van 

Cura opined that he was unsure whether the grade of the drop-off would cause a vehicle to 

overturn. Tr. 73-74; Tr. 14, 147. After this conversation, miners put up cones around the 

violative condition at the south lake. Tr. 67; P. Ex. 5 at 13. Respondent installed berms around 

the lake and abated the violation by the time Ackely arrived the next day. Tr. 86; P. Ex. 3 at 1; 

P. Ex. 5 at 18-22. 

C. The Violation in Order No. 8890960 was S&S. 

The Secretary requests that I affirm Order No. 8890960, as written, and assess the 

Secretary’s proposed penalty of $2,000. The Respondent argues that Order No. 8890960 should 

be vacated. In the alternative, Respondent challenges the fact of the violation, the S&S, high 

negligence, and unwarrantable failure designations, and the proposed penalty. Tr. 13-14. 

 In applying the Commission’s Mathies factors, I must first determine whether the 

conditions cited by Ackley in Order No. 8890960 constitute a violation of section 56.9300(a). 

Section 56.9300(a) requires that “[b]erms or guardrails shall be provided and maintained on the 

 8

 Section 56.9300(a) requires that “[b]erms or guardrails shall be provided and 

maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a). 

39 FMSHRC Page 1615
banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to 

overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a). The Commission’s 

decision in Lakeview Rock Products, 33 FMSHRC 2985 (Dec. 2011), identified three relevant 

inquiries for alleged violations of section 56.9300(a): (1) whether there was an established 

roadway, (2) whether “a drop-off exists of sufficient grade or depth to cause a vehicle to overturn 

or endanger persons in equipment,” and (3) whether any berms or guardrails exist. See Lakeview 

Rock Products, Inc., 33 FMSHRC at 2988. I address each element in turn. 

 

While the term “roadway” is not defined in Part 56 of the Secretary’s regulations, the 

Commission has looked to the “common usage” and “a common-sense application of the 

standard to the facts” to determine whether a roadway exists. Capitol Aggregates, Inc., 4 

FMSHRC 846, 846-47 (May 1982) (upholding the ALJ’s determination that an elevated ramp 

used by a front-end loader to dump petroleum coke into a loading hopper is an “elevated 

roadway”). The Commission has generally found roadways to exist “where a vehicle commonly 

travels over a surface during the normal mining routine.” Black Beauty Coal Co., 34 FMSHRC 

at 1735; see, e.g., El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981) (finding that an 

elevated bench used for haulage is a roadway); Peabody Midwest Mining, LLC, 762 F.3d at 615 

(finding that a bench regularly used by service trucks during regular mining operations 

constitutes a roadway). 

Ackley observed what he determined to be bulldozer, excavator, and service vehicle or 

pick-up truck tracks around the south, west, and north edges of the lake. Tr. 41, 74-76, 117-18; 

P. Ex. 5 at 5-12. Ackley also observed a black truck (likely the dredge operator’s vehicle) 

parked near the south lake, and a dozer and an excavator parked on the north side of the lake. 

Tr. 75, 104-105. The numerous tracks from tire-mounted and track-mounted equipment were 

sufficient indicia for Ackley to determine that the travel route around the lake had been used 

frequently and recently. Tr. 74-75; P. Ex. 5 at 5-12.9

 Although Respondent argued at hearing 

that the south lake accounted for only twenty percent of the mine’s total production, and the 

travel ways were not used frequently enough to constitute a roadway within the meaning of 

section 56.9300(a), I do not find this argument persuasive. Tr. 156-161. Even with the reduced 

activity level, the dredge operator will likely be using the south lake paths as roadways with 

regularity. I find that vehicles commonly travel around the edges of the south lake during the 

normal mining routine, and those travel ways constitute roadways within the meaning of section 

56.9300(a). 

I turn next to the question of whether “a drop-off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a). Ackley 

testified that the three-to-four-foot drop-off at the edge of the lake was sufficient to cause a 

vehicle to overturn. Tr. 67, 73-74. Van Cura agreed with the depth of the drop-off but opined 

that a vehicle would not overturn. Tr. 147. I credit Ackley’s contrary determination based on his 

years of experience as an MSHA inspector and the fact that the drop-off was three to four feet, 

which could cause track-mounted equipment, in particular, and tire-mounted equipment to topple 

over. Ackley designated the violation as reasonably likely to result in injury or illness resulting 

 9

 There was no sign of activity on the east side of the south lake and Ackley determined 

that there was no need for berms on that side. Tr. 88. 

39 FMSHRC Page 1616
in lost work days or restricted duty, because overtraveling the drop-off would result in, at 

minimum, “sprain[s], broken bone[s], [or] strain[s].” P. Ex. 3; Tr. 75. Ackley also credibly 

testified that mobile equipment accidents have sometimes resulted in miners being knocked 

unconscious, which poses a drowning risk for any vehicle that over traveled the drop-off and 

became submerged in the lake.10 Tr. 76-77. I therefore find that the three-to-four-foot drop off 

was “of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

equipment.” See 30 C.F.R. § 56.9300(a). 

Neither party disputes that the roadways around the south, west, and north sides of the 

lake lacked berms or guardrails. Tr. 77-78; P. Ex. 5 at 2-12.11 I therefore find that the lack of 

berms or guardrails around the roadways surrounding the south lake constitutes a violation of 

section 56.9300(a). 

I next identify the hazard in the first part of step two of the clarified Mathies test as set 

forth in Newtown Energy, 38 FMSHRC at 2038. As the Commission explained, “a clear 

description of the hazard at issue places the analysis of the violation’s potential harm in context, 

by requiring a determination of the relative likelihood that the violation will have a meaningful, 

adverse effect on conditions miners will encounter during normal mining operations.” Id. Under 

Mathies, the hazard contributed to by the violation is defined “in terms of the prospective danger 

the cited safety standard is intended to prevent,” and therefore “the starting point for determining 

the hazard is the actual cited section [of the Code of Federal Regulations].” Id. The clear 

purpose of section 56.9330(a) is to prevent vehicles from over traveling the roadway and 

overturning or endangering occupants as a result of traveling too close to drop-offs.

Having determined that the lack of berms presents an over traveling and overturning 

hazard or an endangerment hazard to vehicle occupants near drop-offs, I now consider whether 

“there exists a reasonable likelihood of the occurrence of the hazard against which the [standard] 

is directed.” Newtown Energy, 38 FMSHRC at 2037. In the context of Citation No. 8890960, I 

must determine whether the unbermed condition of the roadways around the south lake would 

lead to a vehicle traveling too close to the edge of the lake and overturning or endangering 

occupants. I note that, under Commission precedent, “[t]he question of whether a violation is 

S&S must be resolved on the basis of the conditions as they existed at the time of the violation 

and as they might have existed under continued normal mining operations.” Manalapan Mining 

Co., 18 FMSHRC 1375, 1382 (Aug. 1996) (Comm'rs Holden and Riley, plurality) (citing

Eastern Associated Coal Corp., 13 FMSHRC 178, 183 (Feb. 1991); U.S. Steel Mining Co., 7 

FMRHC at 1130. 

 10 Van Cura testified that the lake was 25 feet deep at its deepest point, but the majority 

of the lake was probably between 15 and 17 feet deep. Tr. 161. He also testified that January 

2016 flooding of the nearby Illinois River resulted in abnormally high water levels in the lake 

around the time of Ackley’s inspection. Tr. 162. 

11 While there remains a factual question as to whether a berm ever existed on the north 

shore of the south lake, the point is inconsequential because the photographs and testimony 

concerning the south shore of the south lake clearly show that if there had been berms, they had 

deteriorated to the point where they were ineffective. Tr. 39; Tr. 60; P. Ex. 5 at 6. 

39 FMSHRC Page 1617
Workplace examination records initialed by Respondent’s supervisor Mike Lenzie 

indicate that miners were actively preparing the south lake to begin production in the week prior 

to the issuance of Order No. 8890960. P. Ex. 5 at 15-17; Tr. 134-135. On April 14, 2016, 

miners installed a new cable on the winch for the south lake dredge. P. Ex. 5 at 15. On April 16, 

three miners (Kevin Mattox, the dredge operator, Mike Nelson, the excavator operator, and Van 

Cura) were involved in using the excavator to push the dredge from its winter storage location on 

the shore out into the main part of the lake. Tr. 164-166; P. Ex. 5 at 16. The three miners 

accessed the lake by driving trucks via the public road to the lake and then around the lake to 

where the dredge was parked. Id. Production began on the south lake on April 19, 2016. 

Tr. 103. On April 20, Kevin Maddox, the south dredge operator, performed maintenance on the 

south lake dredge prior to Ackley’s arrival. Tr. 102. On April 21, Nelson used the excavator to 

move the dredge’s anchor blocks. Tr. 140; P. Ex. 7 at 13. 

Respondent argues that this elevated level of activity around the south lake was unusual, 

and that the activity level would be greatly decreased in the course of continued normal mining 

operations. Van Cura testified that the area had a limited use, accounting for only twenty percent 

of the mine’s production, and that there had only been two days of active dredging in 2016. 

Tr. 159, 161. Moreover, the dredge operator would be the only person traveling around the south 

lake for the rest of the production season, which Respondent argues would reduce the number of 

miners potentially exposed to the hazard. Tr. 152. However, given the high level of activity in 

the week preceding Ackley’s inspection, I find that at least four miners were exposed to the 

hazardous condition, and at least one miner would be regularly exposed under continued normal 

mining operations. P. Ex. 5 at 15-16; Tr. 103, 164-166. Significantly, the vehicle tracks that 

Ackley observed were within two feet of the edge of the drop off, indicating that the vehicles that 

had recently traveled around the lake had already come in close proximity to the drop-off hazard. 

Tr. 41, 68, 76, 171; P. Ex. 3. 

Furthermore, while there may have been fewer miners exposed to the hazardous 

condition under continued normal mining operations, there was no indication that the 

Respondent would have corrected the violation had Ackley not issued Citation No. 8890960. 

Immediately after issuing the citation, Ackley spoke with Lenzie, Nelson, and Mattox regarding 

the need to berm the south lake. They indicated to him that “they didn’t notice that [berms] were 

missing,” despite having been actively preparing the south lake dredge for production during the 

preceding week. Tr. 35, 121, 132. Consequently, it is likely that the unbermed condition of the 

south lake would have continued to exist uncorrected under continued normal mining operations. 

Given these facts, and considering the totality of circumstance surrounding the violation, 

including the nature of the vehicle tracks observed in close proximity to the three-to-four-foot 

drop-off, I find that the Secretary has shown that the hazard of a vehicle over traveling the dropoff and overturning or endangering occupants as it traversed the unbermed south lake roadways 

was reasonably likely to occur. 

I now turn to the third and fourth Mathies steps, i.e., whether the hazard identified in step 

two—an overturning or an endangerment hazard to vehicle occupants traveling near a three-tofour-foot drop off of unbermed roadways—would be reasonably likely to result in an injury of a 

reasonably serious nature. Newtown Energy, 38 FMSHRC at 2038. Common sense suggests 

that people are likely to be injured when a vehicle overtravels a roadway and overturns into a 

39 FMSHRC Page 1618
drop-off. As noted, Ackley designated the violation as reasonably likely to result in injury or 

illness resulting in lost work days of restricted duty, because overtraveling the drop-off would 

result in, at minimum, “sprain[s], broken bone[s], [or] strain[s].” P. Ex. 3; Tr. 75. As also noted, 

Ackley credibly testified that mobile equipment accidents have resulted in miners being knocked 

unconscious, which poses a drowning risk for any vehicle that over traveled the drop-off and 

became submerged in the lake. Tr. 76-77. Although Respondent argues that its vehicles were 

equipped with seatbelts and life jackets, redundant safety measures are not to be considered in 

determining whether a violation is S&S. Tr. 129, 174; Cumberland Coal Res., 717 F.3d 1020, 

1029 (D.C. Cir. 2013); Knox Creek Coal Corp., 811 F.3d at 162; Buck Creek Coal, 52 F.3d at 

135; Brody Mining, 37 FMSHRC at 1691. Moreover, even seatbelts and life jackets would not 

prevent an unconscious miner from drowning while trapped inside the submerged vehicle. 

Given these facts, I determine that the injuries reasonably expected to occur from a vehicle 

overturning or over traveling the three-to-four-foot unbermed drop-offs are likely to be of a 

reasonably serious nature resulting in at least lost work days and restricted duty, if not 

permanently disabling or fatal injuries. 

 

In conclusion, I find that the violation of section 56.9300(a) occurred as alleged by the 

Secretary, satisfying the first prong of the Mathies test. I have found that that the hazards created 

by the violation were reasonably likely to result in a reasonably serious injury. I therefore find 

that the violation of section 56.9300(a) was S&S and reasonably likely to result in at least lost 

work days or restricted duty for one person. 

D. The Violation in Order No. 8890960 was the Result of Respondent’s High Negligence 

and Unwarrantable Failure to Comply with 30 C.F.R. § 56.9300(a). 

Ackley designated the violation in Order No. 8890960 as the result of Respondent’s high 

negligence and unwarrantable failure to comply with section 56.9300(a). The Secretary requests 

that I affirm the high negligence and unwarrantable failure designations, as written. Tr. 181-87. 

Respondent requests that I delete the unwarrantable failure designation and disputes the 

Secretary’s high negligence designation. Tr. 191-95. 

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is 

determined by looking at all the facts and circumstances of each case to see if any aggravating 

factors exist. As noted, the Commission specifically considers seven aggravating factors: the 

duration of the violation, the extent of the violative condition, whether the operator has been 

placed on notice that greater efforts are necessary for compliance with the standard, the 

operator's efforts in abating the violative condition, whether the violation is obvious, whether the 

violation poses a high degree of danger, and the operator's knowledge of the existence of the 

violation. See, e.g., Manalapan Mining Co., 35 FMSHRC at 293; IO Coal Co., 31 FMSHRC at 

1350-51; Consolidation Coal Co., 22 FMSHRC at 353. 

 

39 FMSHRC Page 1619
i. The Extent of the Violative Condition

 

Determining the extent of a violative condition requires consideration of the scope or 

magnitude of the violation. See Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 

(Oct. 2010), citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, 

Inc., 10 FMSHRC 705, 708 (June 1988). Extensiveness often concerns the degree of the 

violation and is a question of fact regarding the material increase in the degree of risk posed to 

miners as a result of the violation. Eastern Associated Coal, 32 FMSHRC at 1189. In some 

situations, extensiveness depends on the number of people affected by the violation. See Watkins 

Eng'rs & Constructors, 24 FMSHRC 669, 681 (July 2002). 

I find that the violation in Order No. 8890960 was extensive. The lack of berms extended 

to three sides of the lake, and Ackley observed vehicle tracks on all three sides. Tr. 74-75; 

P. Ex. 5 at 2-13.12 While Ackley designated the violative condition as affecting only one miner, 

the Secretary has shown that at least four miners (Lenzie, Nelson, Van Cura, and Mattox) were 

involved in readying the lake for active production in the week preceding the issuance of Order 

No. 8890960. P. Ex. 5 at 14-17; Tr. 102-103, 134-135, 140, 164-66; P. Ex. 7 at 13. I therefore 

find that this factor weighs in favor of an unwarrantable failure finding. 

 

ii. The Duration of the Violation

 

The duration of the violative condition is a necessary consideration in the unwarrantable 

failure analysis. See, e.g., Windsor Coal Co., 21 FMSHRC 997, 1001-04 (Sept. 1999) 

(remanding for consideration of duration evidence regarding cited conditions). The duration or 

length of time that the violation exists is particularly critical, because the longer a violative 

condition or practice exists, the more likely miners will be injured. Coal River Mining, LLC, 

32 FMSHRC 82, 92 (Feb. 2010); see also Buck Creek Coal, 52 F. 3d at 136 (7th Cir. 1995) 

(violation that lasted more than one shift was properly designated as unwarrantable failure); 

Consol Coal Co., 23 FMSHRC 588, 594 (June 2001) (violation was unwarrantable failure where 

the violation existed for several shifts). 

Ackley issued the citation on April 20, 2016. The testimony and workplace examinations 

indicate that preparation work for the 2016 dredging season began on April 14, 2016. Tr.134-35; 

P. Ex. 5 at 15. As previously noted, the Secretary presented extensive evidence regarding the 

traffic along the south lake roadways and the activity level on the south lake between April 14 

and April 20, 2016. P. Ex. 5 at 14-17; Tr. 102-103, 134-135, 140, 164-66; P. Ex. 7 at 13. 

Furthermore, mine records indicate that the south lake was actively mined as early as May 20, 

2015. Tr. 30; P. Ex. 7 at 13. Thus, the hazardous condition existed for at least a week, and 

possibly a year. I find that the duration of the violation weighs heavily in favor of an 

unwarrantable failure finding. 

 

 12 As noted above, there was no sign of activity on the east side of the south lake. Ackley 

concluded that berms were not necessary on that side. Tr. 88. 

39 FMSHRC Page 1620
iii. Whether Respondent was Placed on Notice that Greater Efforts were Necessary for 

Compliance with 30 C.F.R. § 56.9300(a)

 

The Commission has stated that repeated, similar violations are relevant to an 

unwarrantable failure determination to the extent that they serve to put an operator on notice that 

greater efforts are necessary for compliance with the cited standard. IO Coal, 31 FMSHRC at 

1353-55; Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also Consolidation Coal Co., 

23 FMSHRC at 595. The purpose of evaluating the number of past violations is to determine the 

degree to which those violations have “engendered in the operator a heightened awareness of a 

serious . . . problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007) (citing MidContinent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)). The Commission has also 

recognized that “past discussions with MSHA” about a problem “serve to put an operator on 

heightened scrutiny that it must increase its efforts to comply with the standard.” San Juan Coal, 

29 FMSHRC at 131 (citing Consolidation Coal, 23 FMSHRC at 595). 

The Secretary failed to establish that the Respondent was placed on notice that greater 

efforts were necessary to comply with section 56.9300(a). Respondent has no prior violation 

history regarding section 56.9300(a). P. Ex. 9. Moreover, Ackley’s inspection was the first 

inspection of the south lake since it opened for production in May 2015. P. Ex. 7 at 13; P. Ex. 8; 

Tr. 29-30. I therefore find that Respondent was not on notice that greater efforts were necessary 

for compliance with section 56.9300(a). Accordingly, this factor weighs against a finding of 

unwarrantable failure. 

 

iv. Respondent Should Have Known of the Existence of the Violation 

 

The Commission has held that knowledge is established by showing “the failure of an 

operator to abate a violation [that] he knew or should have known existed.” Emery Mining 

Corp., 9 FMSHRC at 2002-03 (emphasis added); see also Senate Subcommittee on Labor, 

Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 1602 (1975). In the absence of past 

violations, an operator's knowledge may be established “where an operator reasonably should 

have known of a violative condition.” IO Coal Company, Inc., 31 FMSHRC at 1356-57; 

Drummond Co., Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991) (quoting Eastern Assoc. Coal 

Corp., 13 FMSHRC 178, 187 (Feb. 1991)). The Commission has held that the extent of the 

involvement of supervisory personnel in a violation should be taken into account in determining 

whether an unwarrantable failure occurred, because supervisors are held to a higher standard of 

care. Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001); REB Enters., Inc., 

20 FMSHRC 203, 225 (Mar. 1998). Further, the knowledge or negligence of an agent may be 

imputed to the operator. See Excel Mining, LLC, 37 FMSHRC 459, 467-68 (Mar. 2015). 

As noted above, despite being actively engaged in preparing the south lake dredge for the 

2016 production season, none of the miners working in and around the south lake in the week 

prior to the issuance of Order No. 8890960 noticed that any berms were missing. Tr. 35, 

121, 132. As a supervisor, Lenzie was responsible for conducting routine workplace 

examinations and for safety and training. Tr. 126; P. Ex. 4 at 1. Although Lenzie did not 

necessarily conduct each daily workplace examination, he signed off on each of them. Tr. 150; 

39 FMSHRC Page 1621
P. Ex. 5 at 14-17. Moreover, berms were installed on the north lake, and Ackley did not issue 

any citations regarding insufficient berms in that area. Tr. 36. Given the elevated activity level 

around the south lake just prior to the Order’s issuance and the proximity of the tire tracks to the 

edge of the three-to-four-foot drop-off, I conclude that a reasonably prudent person familiar with 

the mining industry, the relevant facts, and the protective purpose of section 56.9300(a), would 

have recognized the over traveling and overturning or endangerment hazards created by the lack 

of berms. Respondent should have known of the violation, and demonstrated indifference or a 

serious lack of reasonable care by allowing the violation to continue unabated for a week while 

significant activity took place to prepare the south lake for the 2016 season. I find that this factor 

strongly weighs in favor of find an unwarrantable failure. 

 

v. Whether the Violation was Obvious 

Inspector Ackley credibly testified that the hazardous conditions were obvious and could 

“be seen as soon as you pull into the south side.” Tr. 75, 126; P. Ex. 4 at 1. The conditions 

existed for at least a week (if not an entire year). Tr. 30; P. Ex. 7 at 13. Ackley credibly 

testified that a reasonably prudent miner should have known that berms were necessary around 

the south lake. Tr. 127. I find that the obviousness of the violation weighs in favor of an 

unwarrantable failure finding. 

vi. Whether the Violation Posed a High Degree of Danger

 

A high degree of danger posed by a violation may also support an unwarrantable failure 

finding. See e.g., BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland 

Coals, 10 FMSHRC at 709. The degree of danger is a relevant factor, but not a threshold 

requirement for determining whether a violation is an unwarrantable failure. Manalapan Mining 

Company, Inc., 35 FMSHRC at 294 (citing Windsor Coal Co., 21 FMSHRC at 1001 

(Commission recognizes a number of factors relevant to determining whether a violation is the 

result of an operator's unwarrantable failure)). The factor of dangerousness may be so severe 

that, by itself, it warrants a finding of unwarrantable failure, but the converse is not true, i.e., that 

the absence of danger precludes a finding of unwarrantable failure. Manalapan, 35 FMSHRC at 

294. Furthermore, a violation may be aggravated and unwarrantable based on “common 

knowledge that certain equipment, such as power lines, are hazardous and that precautions are 

required.” Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). For purposes of 

evaluating whether violative conditions pose a high degree of danger, it may be appropriate to 

consider the same facts already considered as part of the gravity evaluation in an S&S analysis. 

See San Juan Coal, 29 FMSHRC at 125, 132-33 (remanding for failure to apply S&S findings to 

danger factor in unwarrantable failure analysis). 

As noted above, Ackley designated the violation as reasonably likely to result in injury or 

illness resulting in lost work days or restricted duty, because overtraveling the drop-off would 

result in, at minimum, “sprain[s], broken bone[s], [or] strain[s].” P. Ex. 3; Tr. 75. He also 

credibly testified that mobile equipment accidents have sometimes resulted in miners being 

knocked unconscious, which poses a drowning risk for any vehicle that over traveled the dropoff, overturned, and became submerged in the lake. Tr. 76-77. That result could very well be 

39 FMSHRC Page 1622
life-threatening or fatal. I therefore find that the violation underlying Order No. 8890960 posed 

a high degree of danger. 

 

vii. Respondent's Efforts to Abate the Violative Condition

 

An operator's efforts to abate a violation are relevant to an unwarrantable failure 

determination. Thus, where an operator has been placed on notice of a problem, the level of 

priority that the operator places on abatement of the problem is relevant. IO Coal, 31 FMSHRC 

at 1356 (citing Enlow Fork Mining, 19 FMSHRC 5, 17 (Jan. 1997)). The focus is on abatement 

efforts made prior to issuance of the citation or order. Id. An operator's efforts to abate a 

violation before a citation or order issues, even during an inspection, may be a mitigating factor 

in an unwarrantable failure analysis. Utah Power & Light Co., 11 FMSHRC 1926, 1934 (Oct. 

1989). 

Here, although Respondent was not placed on notice that greater efforts were necessary 

to comply with the cited standard, Respondent presented no evidence that it attempted to abate 

the obvious violation in advance of the issuance of Order No. 8890960. Respondent’s supervisor 

and rank-and-file miners admitted that they did not even notice that the required berms were not 

present. Tr. 35, 121, 132. Although a reasonable, good-faith belief that a condition did not exist 

may excuse a lack of abatement efforts, I do not find that Respondent’s failure to notice that 

berms were missing was based on a reasonable good-faith belief that a violative condition did 

not exist. See IO Coal, 31 FMSHRC at 1356. In fact, the record suggests the contrary. 

Respondent had adequately bermed the north lake, but nevertheless neglected to berm the south 

lake. Tr. 36. I find that Respondent’s failure to abate the violative condition prior to issuance of 

the citation weighs in favor of an unwarrantable failure finding. 

Based on the foregoing discussion, I have found that the violative condition in Order No. 

8890960 was extensive, obvious, and of sufficient duration to warrant a finding of unwarrantable 

failure. In addition, I have found that Respondent should have known of the violative condition, 

failed to abate it prior to issuance of the citation, and that a reasonable person familiar with the 

mining industry would have recognized that the lack of berms around the south lake posed a high 

degree of danger to the miners preparing the lake for the 2016 production season. I therefore 

find that the violation in Order No. 8890960 was the result of Respondent’s high negligence and 

an unwarrantable failure to comply with section 56.9300(a). 

E. Penalty Assessment 

The Secretary proposed a penalty of $2,000 for Order No. 8890960. P. Ex. 2. 

Respondent’s miners worked 9,021 hours in 2016. Consequently, I find that Respondent is a 

small-operator. Id.; 30 C.F.R. § 100.3, Table III. The parties have stipulated that the proposed 

penalty will not affect Respondent’s ability to continue in business. Jt. Ex. 1. The parties have 

also stipulated that Respondent demonstrated good faith in abating the violation. Id. 

Respondent’s Assessed Violation History report indicated that in the 15-months preceding Order 

No 8890960, Respondent received only three 104(a) citations, none of which alleged violations 

of section 56.9300(a). P. Ex. 9. I have affirmed the Secretary’s gravity, high negligence, and 

39 FMSHRC Page 1623
unwarrantable failure designations. Based upon my consideration of the section 110(i) penalty 

criteria, and the deterrent purposes of the Act, I assess a penalty of $2,000. 

IV. ORDER 

For the reasons set forth above, Order No. 8890960 is AFFIRMED, as written. 

Respondent, Morris Sand & Gravel, is ORDERED to pay a total civil penalty of $2,000 within 

thirty days of the date of this Decision and Order.13 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

 

Daniel P. Foltyniewicz, Morris Sand & Gravel, Inc., P.O. Box 5312, Wheaton, IL 60189 

Daniel Brechbuhl, U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez Memorial 

Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204 

/adh 

 13 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. 

39 FMSHRC Page 1624
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

August 4, 2017 

 

DECISION AND ORDER

Appearances: Ryan Kooi, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner 

 Edmund C. Neidlinger, Pine Grove, Pennsylvania, for Respondent 

Before: Judge Rae 

I. STATEMENT OF THE CASE 

These cases are before me upon two petitions for assessment of civil penalties under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine 

Act”), 30 U.S.C. § 815(d). In dispute are five violations issued by the Secretary of Labor (“the 

Secretary”) to mine operator Little Buck Coal Company #2 (“Little Buck”): Citation No. 

8000756 in Docket No. PENN 2015-100 and Citation No. 8000752 and Order Nos. 8000753, 

8000754, and 8000755 in Docket No. PENN 2015-232. 

These matters were initially assigned to a different Administrative Law Judge but were 

reassigned to me in May 2016, after which a hearing was scheduled. The hearing was held in 

Allentown, Pennsylvania on January 24, 2017, at which time the parties presented testimony, 

arguments, and documentary evidence. The Secretary also filed a post-hearing brief. Little Buck 

did not file a brief. 

I have reviewed all of the evidence at length and have cited to the testimony, exhibits, 

and arguments I found critical to my analysis and ruling herein without including a detailed 

summary of the testimony given by each witness. Based on the entire record and my 

observations of the demeanor of the witnesses, I uphold the violations as written and assess 

penalties totaling $8,308.00, for the reasons discussed below. 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

LITTLE BUCK COAL COMPANY #2, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 2015-100 

A.C. No. 36-09860-369007 

Docket No. PENN 2015-232 

A.C. No. 36-09860-380876 

Mine: Buck Mountain Vein 

39 FMSHRC Page 1625
II. STIPULATIONS 

The parties have entered into the following stipulations: 

1. Little Buck was an “operator” as defined in section 3(d) of the Mine Act, 30 U.S.C. § 

802(d), at the mine at which the citations and orders at issue in these proceedings were 

issued. 

2. Operations of Little Buck at the mine at which the citations and orders were issued are 

subject to the jurisdiction of the Mine Act. 

3. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to sections 

105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823. 

4. Buck Mountain Vein is owned by Little Buck. 

6. The individual whose name appears in Block 22 of the citations and orders in contest was 

acting in an official capacity and as an authorized representative of the Secretary when 

the citations and orders were issued. 

7. The citations and orders contained in Dockets PENN 2015-100 and PENN 2015-232 

were properly issued and served by a duly authorized representative of the Secretary 

upon an agent of Little Buck at the date, time, and place stated in the citations and orders, 

as required by the Mine Act. 

8. Exhibit A attached to the Secretary’s Petitions in Dockets PENN 2015-100 and PENN 

2015-232 contain authentic copies of the citations and orders with all modifications 

and/or abatements. 

9. MSHA’s Data Retrieval System, publicly available at http://www.msha.gov/drs/drshome. 

htm, accurately sets forth: 

a. The size of Little Buck in production tons or hours worked per year; 

b. The size, in production tons or hours worked per year, of the mine; 

c. The total number of assessed violations for the time period listed; and 

d. The total number of inspection days for the time period listed therein. 

10. Exhibit A of the Secretary’s Petitions for the Assessment of Civil Penalty accurately sets 

forth: 

a. The size of Little Buck in production tons or hours worked per year; 

b. The size, in production tons or hours worked per year, of the mine; 

c. The total number of assessed violations for the time period listed; and 

d. The total number of inspection days for the time period listed therein. 

11. The R-17 Certified Assessed Violation History Report is an authentic copy and may be 

admitted as a certified business record of MSHA. 

12. As of the time the citations and orders in Dockets PENN 2015-100 and PENN 2015-232 

were issued, the Buck Mountain Vein mined a total of 5,117 tons of coal. 

13. Little Buck was the controller for the Buck Mountain Vein when the citations and orders 

in Dockets PENN 2015-100 and PENN 2015-232 were issued. 

39 FMSHRC Page 1626
14. On October 8, 2014, Little Buck had developed the Bottom Split Mammoth Vein 

approximately 80 feet east off the First Level Intake Rock Tunnel. 

15. On October 8, 2014, Little Buck had developed the Intake Rock Tunnel approximately 20 

feet south off the Bottom Split Mammoth Vein and intersected the Middle Split 

Mammoth Vein. 

16. Little Buck’s Roof Control Plan Addendum (submitted February 27, 2014 and approved 

March 13, 2014) allowed for Little Buck to develop the Intake Rock Tunnel Gangway 

only as far as the Bottom Split Mammoth Vein. 

17. On October 8, 2014, the entry cited in Order Number 8000753 was not provided with a 

crosscut or ventilation controls. 

19. On or before October 8, 2014, two miners worked inby the entry described in Citation 

Number 8000756. 

Joint Ex. 1; Tr. 5-6.1

 

III. FACTUAL BACKGROUND 

The Buck Mountain Vein mine is a small underground anthracite mine located in 

Schuylkill County, Pennsylvania. Tr. 7, 19-20; GX 8. Anthracite, a type of coal that is harder and 

purer than the more common bituminous coal, is deposited in parallel veins pitched on an angle 

and separated by layers of rock.2

 Tr. 27-29. It is mined using conventional mining methods and 

blasting. Tr. 7, 36. The operator first digs a slope that follows the vein underground and serves as 

the mine’s main entry way, haulageway, and air intake. Tr. 7, 28-29, 32, 34. Gangways are 

driven off the slope horizontally to carry intake air and serve as the primary escapeway for the 

working section. Tr. 29, 34-36. Thirty-five feet above each gangway and running parallel to it, a 

“monkey” heading is driven to serve as both the return air course and secondary escapeway. Tr. 

29, 34-36. The gangway and monkey are connected at intervals by crosscuts referred to as 

chutes. Tr. 29. Mining is accomplished by blasting upward from the monkey to create rooms 

referred to as breasts with pillars of coal between them. Tr. 29, 34-36. Coal blasted from the top 

of the breasts is allowed to feed down through the chutes by gravity to the gangway, where it 

lands in carts that are pushed to the slope to be transported out of the mine. Tr. 34-36. After the 

coal is mined out at one level, the operator sinks the slope another 100 or 150 feet, develops a 

new gangway, and starts the process over again. Tr. 35-36. Alternately, the operator can tunnel 

through the overlying layer of rock to reach the next vein. 

 1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary submitted exhibits numbered GX 1-6, 8-15, and 17-18 and Little Buck submitted 

exhibits numbered LBCC 1 and 2. 

 

2

 Thus, while bituminous coal often lies flat underground like a sheet of paper, an 

anthracite coal vein more closely resembles a sheet of paper turned on its edge and slid into the 

ground at an angle. To view a cross-section of the anthracite veins at the Buck Mountain Vein 

mine, see the third page of GX 12 (numbered “MSHA072”). Tr. 30-33.

39 FMSHRC Page 1627
The events that led to this proceeding began with Little Buck’s decision to tunnel into a 

new coal vein. The mine’s main slope is cut into the Buck Mountain Vein, which runs east to 

west and pitches south at an angle of roughly 65 degrees. Tr. 19-20, 32. As of 2013, the active 

working section where two miners worked on a normal basis was the Buck Mountain Vein first 

level west section. Tr. 23, 72. In December 2013, Little Buck submitted an addendum to its roof 

control plan proposing to develop a rock tunnel southward through the top rock of the Buck 

Mountain Vein first level west gangway to the next overlying vein, the Seven Foot Vein. After 

intersecting the Seven Foot Vein, Little Buck planned to develop a second rock tunnel back to 

the Buck Mountain Vein to serve as a return airway. The operator would then develop a 

gangway and begin mining the Seven Foot Vein. If the vein were found to be unsuitable for 

mining, Little Buck would continue its rock tunnel south to the next vein, the Bottom Split 

Mammoth Vein (referred to hereinafter as “the Bottom Split”). GX 9; Tr. 31, 49-50. After 

submitting this proposal to MSHA, Little Buck began developing the rock tunnel without waiting 

for MSHA to review and approve it. Tr. 81-82. On January 22, 2014, an MSHA inspector issued 

a citation for this conduct (which is not at issue in this proceeding). GX 15. That same day, 

MSHA approved the proposed plan addendum so it could be incorporated into Little Buck’s roof 

control plan and development of the rock tunnel could continue. GX 9. 

The next month, Little Buck submitted addenda to its roof control and ventilation plans 

explaining that it had continued to tunnel south and had reached the Seven Foot Vein, which was 

discovered to be completely faulted to the east. GX 10; GX 11; Tr. 52-53. A “faulted” area is one 

that cannot safely be mined due to unsuitable geological conditions such as weak rock strata or a 

twist in the coal seam. Tr. 65. To avoid the faulted area to the east, Little Buck proposed to drive 

40 feet west on the Seven Foot Vein and then develop the return rock tunnel back to the Buck 

Mountain Vein from that location. Mining would then proceed to the west on the Seven Foot 

Vein. MSHA approved the proposal on March 13, 2014. GX 10; GX 11; Tr. 52-55, 65. 

Several months later, Little Buck submitted yet another proposed plan addendum 

explaining that, after advancing west on the Seven Foot Vein and developing two chutes and a 

return rock tunnel, it had encountered more faulting and severely unstable roof and bottom rock, 

meaning that the Seven Foot Vein could not safely be mined any further west. Thus, Little Buck 

planned to stop developing the Seven Foot Vein and continue the rock tunnel south to the 

Bottom Split. After intersecting the Bottom Split, Little Buck would develop a return rock tunnel 

from the Bottom Split to the Seven Foot Vein “using the same procedure” described in the 

March 2014 addendum. MSHA approved this proposal on August 19, 2014. GX 12; Tr. 41-43, 

55-56, 137-39. 

On October 8, 2014, MSHA Inspector Michael J. Dudash3

 traveled to the mine to 

conduct a regular quarterly inspection. Tr. 18, 21. He had already reviewed the mine’s roof 

control and ventilation plans, which were on file with MSHA, and had conducted an imminent 

 3

 Dudash has worked for MSHA for approximately 19 years. He became a coal mine 

inspector in 1999 after undergoing a year of training at MSHA’s Mine Academy in Beckley, 

West Virginia, and later underwent additional specialized training to become a roof control and 

ventilation specialist. Dudash had previously worked for a small family-owned anthracite mining 

business for more than 15 years, gaining experience in “all of the aspects of underground mining 

and then later surface mining.” Tr. 14-17. 

39 FMSHRC Page 1628
danger run two days earlier. Tr. 18-19, 73, 119-20, 157-58. When he arrived at the mine at 6:00 

AM, the working shift had not yet begun and the only person onsite was mine examiner and 

foreman Edmund Neidlinger, who is also the mine’s co-owner, operator, and pro se 

representative in this proceeding and is the person who prepared and submitted the three roof 

control addenda described above. Tr. 4, 21-22, 72, 189-91. Inspector Dudash reviewed the 

preshift exam record on the surface then accompanied Neidlinger underground on his preshift 

examination of the active working section. Tr. 23-24, 167. 

At hearing, Dudash notated a map to show what he had observed underground. See GX 

194; Tr. 42-44, 54, 56-67, 74. He had expected to encounter mining consistent with the projected 

development depicted on the map – that is, he expected to find that the rock tunnel had been 

extended to the Bottom Split, a return rock tunnel had been developed back to the Seven Foot 

Vein workings, and the Bottom Split was being developed to the west. Tr. 44. Instead, Little 

Buck had developed a gangway 80 feet east on the Bottom Split with no monkey heading or 

return rock tunnel. Tr. 56-57, 63-64. Ventilation was being provided by a blowing fan that was 

pushing air approximately 180 feet through 12-inch ventilation tubing to the face. Tr. 61-62, 

125-26. 

In addition, Little Buck had continued to develop the rock tunnel south of the Bottom 

Split. Tr. 57-58. A barricade had been erected at the top rock of the Bottom Split, but Dudash 

asked Neidlinger to remove it so he could see how far south the rock tunnel had been developed. 

Tr. 13, 69, 94-95, 121. After it was removed, Inspector Dudash could travel only about ten feet 

south before reaching an area where the roof had collapsed at the point where the rock tunnel 

intersected another coal vein, which Neidlinger identified as the Middle Split.5 Tr. 59-60, 73-74, 

95. Although Dudash could not travel beyond the roof fall, he testified he could see into a coal 

face in the Middle Split which he estimated to be about 30 feet away. Tr. 59, 63, 95. (Later, after 

the roof had been supported, Dudash returned to the area to measure it and found that the 

distance from the barricade to the end of the rock tunnel was 20 feet, and the operator had driven 

east from the end of the rock tunnel into the Middle Split for an additional 20 feet. Tr. 95-96.) 

There were no ventilation controls in the area beyond the barricade and no detectable air 

movement. Tr. 71, 75, 94, 96. The alarm on Dudash’s Solaris multi-gas detector went off, 

signaling low oxygen. Tr. 68-71, 96-97, 100. The reading was 19.4% oxygen, whereas the 

regulations require the air to be maintained at 19.5% oxygen. Tr. 69-70, 96, 99. Dudash took an 

air sample with a vacuum bottle which he later submitted to an MSHA laboratory for analysis 

and which confirmed his oxygen reading. Tr. 97-99; GX 18. 

 4

 GX 19 is a blown-up copy of the map that appears in the August 2014 addendum (GX 

12) on the page numbered “MSHA073.” The court reporter labeled the marked-up map “GX 18” 

after hearing. See Tr. 3. I have relabeled it “GX 19” because another exhibit is already 

designated as GX 18. See Tr. 110. 

5

 Neidlinger later decided this was actually the Top Split. Tr. 207-08. Because the parties 

more frequently called it the Middle Split throughout the hearing, it is referred to as such in this 

decision. The Bottom Split, Middle Split, and Top Split are three coal veins that together 

comprise one larger formation called the Mammoth Vein. Tr. 27-28. 

39 FMSHRC Page 1629
Inspector Dudash believed that both the mining to the east on the Bottom Split and the 

further development to the south were outside of what was allowed under Little Buck’s roof 

control and ventilation plans. Tr. 64-68, 81. Accordingly, he issued Citation No. 8000752 and 

Order No. 8000755 for violations of the roof control plan and ventilation plan, respectively. Tr. 

67-68, 115-16; GX 1; GX 4. Little Buck abated the violations by submitting an addendum 

proposing to convert the existing rock tunnel into a return air course and develop a separate rock 

tunnel to the east to serve as the intake air course. MSHA approved the proposal on October 14, 

2014. GX 13; Tr. 82-88, 141-43, 148-51. The new rock tunnel branched off of the existing rock 

tunnel just north of the Seven Foot Vein and connected to the Bottom Split gangway. GX 13. 

Little Buck was also required to develop a monkey heading in the Bottom Split. GX 13. Despite 

taking these corrective measures and seemingly admitting to violating his plans, Tr. 175, 

Neidlinger maintains that the plan violations were not as serious as Inspector Dudash indicated, 

for several reasons, including that the plans did not specify whether development of the Bottom 

Split would proceed to the east or west and that Little Buck mined past the Bottom Split by 

accident. Tr. 12-13, 168-70. 

In addition to the plan violations, Inspector Dudash also issued Order Nos. 8000753 and 

8000754 on the day of the inspection alleging that Little Buck failed to conduct an adequate 

preshift examination or install ventilation controls in the area south of the Bottom Split. GX 2; 

GX 3; Tr. 115-16. Later, after the MSHA laboratory analysis of the air sample he had taken in 

that same area confirmed that low oxygen had been present, Dudash issued a fifth violation, 

Citation No. 8000755, alleging an air quality violation. GX 5; Tr. 116. The narrative portions of 

Order Nos. 8000753 and 8000754 state that, to abate the violations, Little Buck extended 

ventilation controls into the Middle Split entry and traveled the entire area south of the Bottom 

Split to conduct an adequate examination, both of which would have required the operator to 

timber up the roof in the area where it had collapsed so that men could walk under it. GX 2; GX 

3. However, Neidlinger disputes that the area where the roof collapsed was re-timbered and 

contends that ventilation tubing was not extended all the way to the end of the Middle Split 

entry. Tr. 185-87. He further argues that the area south of the Bottom Split did not need to be 

examined because it was part of a return air course, and he also believed that Little Buck was not 

required to install ventilation controls or conduct examinations because it had already fulfilled its 

duty to protect miners by barricading the area off. Tr. 13-14, 116-17. 

IV. LEGAL PRINCIPLES 

A. Violation 

A mine operator is strictly liable for Mine Act violations that occur at its mine. Spartan 

Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any 

alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. 

Keystone Coal Mining Corp., 153 F.3d 1096 (D.C. Cir. 1998). 

 

39 FMSHRC Page 1630
B. S&S (Significant and Substantial) and Gravity Findings 

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). A 

violation is properly designated S&S “if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Company, the Commission set forth the following four-part test to 

determine whether a violation is properly designated S&S: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor 

must prove: (1) the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard – 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. 

6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation 

Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). 

 The Commission recently stated that the focus of the Mathies analysis “centers on the 

interplay between the second and third steps.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 

(Aug. 2016). The second step “addresses the extent to which the violation contributes to a 

particular hazard” and “is primarily concerned with likelihood of the occurrence of the hazard 

against which a mandatory safety standard is directed.” Id. Thus, the second step requires the 

judge to first identify the hazard, which the Commission defines “in terms of the prospective 

danger the cited safety standard is intended to prevent,” then determine whether the violation 

sufficiently contributed to this hazard by considering “whether, based upon the particular facts 

surrounding the violation, there exists a reasonable likelihood of the occurrence of the hazard.” 

Id. at 2038. At the third step, the judge must determine whether the occurrence of the hazard 

would be reasonably likely to result in injury, assuming the hazard were to occur. Id. 

 

The S&S determination must be based on the particular facts surrounding the violation at 

issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); see, e.g., Wolf Run Mining Co., 

36 FMSHRC 1951, 1957-59 (Aug. 2014). Evaluation of the reasonable likelihood of injury 

should be made assuming “continued normal mining operations,” U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made “in consideration of the 

length of time that the violative condition existed prior to the citation and the time it would have 

existed if normal mining operations had continued.” Black Beauty Coal Co., 34 FMSHRC 1733, 

1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). The inspector’s 

judgment is also an important element of the S&S determination. Wolf Run, 36 FMSHRC at 

1959; Mathies, 6 FMSHRC at 5.

39 FMSHRC Page 1631
The S&S nature of a violation and the gravity of the violation are not synonymous, 

although they are frequently based on the same or similar factual circumstances. Quinland Coals, 

Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987). The Secretary assesses gravity in terms of the 

reasonable likelihood of injury, the severity of the expected injury, the number of persons 

affected, and whether the violation is S&S. The Commission generally expresses gravity as the 

degree of seriousness of the violation. Hubb Corp., 22 FMSHRC 606, 609 (May 2000); 

Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The Commission has pointed

out that the focus of the gravity inquiry “is not necessarily on the reasonable likelihood of serious 

injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” 

Consolidation, 18 FMSHRC at 1550; see also Harlan Cumberland Coal Co., 12 FMSHRC 134, 

140-41 (Jan. 1990) (ALJ) (explaining that some violations are serious notwithstanding the 

likelihood of injury, such as a violation of an important safety standard, a violation 

demonstrating recidivism or defiance on the operator’s part, or a violation that could combine 

with other conditions to set the stage for disaster). 

C. Negligence and Unwarrantable Failure 

Negligence is conduct that falls below the standard of care established under the Mine 

Act. Under the Secretary’s regulations, an operator is held to a high standard of care and is 

required to be on the alert for conditions and practices that may cause injuries and to take 

necessary precautions to prevent or correct them. 30 C.F.R. § 10.0(d). The Secretary defines high 

negligence as having occurred in connection with a violation when “[t]he operator knew or 

should have known of the violative condition or practice, and there were no mitigating 

circumstances.” Id. § 100.3, Table X. The Commission generally assesses negligence by 

considering what actions a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the cited regulation would have taken under the 

circumstances. Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016); see also Brody Mining, LLC, 

37 FMSHRC 1687, 1701-03 (Aug. 2015) (explaining that Commission ALJs “may evaluate 

negligence from the starting point of a traditional negligence analysis” rather than adhering to the 

Secretary’s Part 100 definitions); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 

1263-64 (D.C. Cir. 2016). 

 More serious consequences can be imposed under the Mine Act for violations that result 

from the operator’s unwarrantable failure to comply with mandatory health or safety standards. 

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 

814(d), and refers to more serious conduct by an operator in connection with a violation. The 

Commission has determined that unwarrantable failure is aggravated conduct constituting more 

than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987). 

Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

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

Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 136 (7th Cir. 1995). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors or 

mitigating circumstances exist. These factors often include (1) the extent of the violative 

39 FMSHRC Page 1632
condition, (2) the length of time the violative condition existed, (3) whether the violation posed a 

high degree of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of 

the existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) 

whether the operator had been placed on notice prior to the issuance of the violation that greater 

efforts were necessary for compliance. See CAM Mining, LLC, 38 FMSHRC 1903, 1909 (Aug. 

2016); Wolf Run Mining Co., 35 FMSHRC 3512, 3520 (Dec. 2013); IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009). Because supervisors are held to a high standard of care, another 

important factor supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001). 

The factors listed above must be viewed in the context of the factual circumstances of a 

particular violation, and it is not necessary to find that all factors are relevant or deserving of 

equal weight in order to determine that the violation is unwarrantable. Wolf Run, 35 FMSHRC at 

3520-21; E. Assoc’d Coal Corp., 32 FMSHRC 1189, 1193 (Oct. 2010); IO Coal, 31 FMSHRC at 

1351. However, all factors that are relevant should be considered. San Juan Coal Co., 29 

FMSHRC 125, 129 (Mar. 2007). 

V. ANALYSIS AND CONCLUSIONS 

A. Citation Number 8000752 (Roof Control Plan Violation) 

1. Violation of 30 C.F.R. § 75.220(a)(1) 

Citation No. 8000752 was issued on October 8, 2014 under section 104(d)(1)6

 of the 

Mine Act and alleges: 

The operator is not following his roof control addendum, approved August 

19, 2014. The operator has developed the 1st level Bottom Split Mammoth 

Vein gangway east approximately 80 feet off the first level intake rock 

tunnel gangway (MMU-001-0)[.] In addition, the operator has developed 

the same intake rock tunnel gangway approximately 20 [feet] south of the 

Bottom Split Mammoth Vein, and intersected the Middle Split Mammoth 

Vein. The Middle Split Mammoth Vein gangway is developed 

approximately 30 feet east off the same intake rock tunnel gangway. Pages 

one and three of the operator’s approved roof control addendum clearly 

states [sic] that he will only develop the rock tunnel gangway to the 

Bottom Split Mammoth Vein and he will only develop the Bottom Split 

Vein west off the same rock tunnel gangway. The operator does not have 

an approved plan to develop the intake rock tunnel gangway beyond the 

Bottom Split Mammoth Vein or to develop the Bottom Split Mammoth 

Vein east of the intake rock tunnel gangway. The preshift exam record 

states that the east Bottom Split Mammoth Vein gangway was started 

 6

 The issuance of a citation under section 104(d)(1) denotes that the alleged violation was 

S&S and was caused by the mine operator’s “unwarrantable failure” to comply with a mandatory 

health or safety standard. See 30 U.S.C. § 814(d)(1). 

39 FMSHRC Page 1633
September 15, 2014 and that the Middle Split Mammoth Vein was worked 

September 16, through September 29, 2014. The preshift examiner, 

Edmund Neidlinger, is also the mine foreman and co-owner of this mine. 

He has been conducting the preshift examinations since at least July 30, 

2014 to present. The operator, Edmund Neidlinger, was issued Citation 

8000809, January 22, 2014 for starting this same intake rock tunnel 

gangway from the Buck Mountain Vein without an approved roof control 

plan. 

GX 1. 

 The standard alleged to have been violated is 30 C.F.R. § 75.220(a)(1), which states: 

“Each mine operator shall develop and follow a roof control plan, approved by the District 

Manager, that is suitable to the prevailing geological conditions, and the mining system to be 

used at the mine. Additional measures shall be taken to protect persons if unusual hazards are 

encountered.” The purpose of the roof control plan is to set parameters governing how the mine 

roof and ribs will be supported to prevent them from collapsing and causing harm to miners. Tr. 

45. For example, Little Buck’s plan (admitted to the record as GX 8) specifies the size, 

configuration, and spacing of the timbers the operator is required to install to support the roof in 

each different area of the mine, including the slope, gangway, monkey, chutes, and breasts. GX 

8; Tr. 46, 48. An operator can amend or supplement its roof control plan by submitting a 

proposed addendum, which must be approved by the District Manager before it can be 

incorporated into the plan and implemented at the mine. Tr. 47, 134, 155-56, 204-06. After a roof 

control plan or plan addendum has been approved by the District Manager and adopted by the 

operator, its provisions are enforceable at the mine as mandatory safety standards. Martin County 

Coal Corp., 28 FMSHRC 247, 254 (May 2006). 

In this case, as discussed above, Little Buck submitted a series of addenda that were 

incorporated into its roof control plan to permit it to tunnel south from the Buck Mountain Vein 

to the Seven Foot Vein and eventually the Bottom Split. The Secretary contends that Little Buck 

violated its plan in five different ways: by continuing to develop the rock tunnel beyond the 

Bottom Split; by failing to adequately support the roof in the rock tunnel; by mining for 20 feet 

on the Middle Split; by mining to the east, rather than the west, on the Bottom Split; and by 

mining 180 feet without connecting a return airway or alternate escapeway. Sec’y Br. 15-17. 

Regarding the first allegation, Little Buck has essentially conceded that it committed a 

plan violation by developing the rock tunnel south of the Bottom Split. Little Buck stipulated that 

although its March 2014 addendum allowed for development of the rock tunnel only as far as the 

Bottom Split, the tunnel had been extended approximately 20 feet south and had intersected the 

Middle Split by the date of the inspection, and Neidlinger admitted as much at hearing. Joint Ex. 

1; Tr. 12-13, 169-70. Although the stipulations specifically reference the March addendum, I 

note that Little Buck’s other two plan addenda did not permit development south of the Bottom 

Split either. See GX 9; GX 12. Continuing to tunnel south without permission from the District 

Manager was clearly a violation. 

39 FMSHRC Page 1634
I also agree with the Secretary’s allegation that Little Buck failed to adequately support 

the roof in the rock tunnel south of the Bottom Split in the area where the roof fall occurred. 

Neidlinger asserts that the rock tunnel was timbered in accordance with the roof control plan. Tr. 

170. However, the plan and its addenda were specific to the veins where Little Buck was 

expected to be mining, not the rock tunnel or any of the veins south of the Bottom Split. See Tr. 

48-49, 147-48. Moreover, the plan requires Little Buck to use whatever measures are necessary 

to support the top when adverse roof conditions are encountered. Tr. 146; GX 8 at 19. The roof 

collapsed in the rock tunnel at the point where it intersected with the Middle Split because the 

coal was so thick in the Middle Split vein that the roof support installed at that location 

admittedly “wasn’t sufficient.” Tr. 170. Thus, Little Buck violated the roof control plan and § 

75.220(a)(1) by mining into a new area without implementing any measures to adequately 

address the adverse geological conditions that were present there in the form of an unusually 

thick coal seam. 

Mining coal on the Middle Split was also a violation. Inspector Dudash’s sketch of the 

development below the Bottom Split shows an L-shaped area with an entry or gangway driven 

eastward on the Middle Split vein at a 90 degree angle to the rock tunnel. GX 19. Dudash 

initially could not determine exactly how far east the Middle Split had been developed, but 

estimated approximately 30 feet, which he noted in the citation. Tr. 59, 63, 95; GX 1. He 

testified that later, after the roof had been supported, he returned to the area to measure the 

tunnels and found that, in addition to driving the rock tunnel 20 feet south of the barricade at the 

Bottom Split, the operator had driven 20 feet east from the end of the tunnel into the Middle 

Split. Tr. 95-96. 

Neidlinger denied engaging in any mining on the Middle Split and characterized 

Dudash’s sketch as inaccurate. Tr. 178-81. According to Neidlinger, the rock tunnel veered 

slightly southeast beyond the Middle Split to avoid a patch of conglomerate rock that could not 

be mined without special equipment, but there was no gangway leading east nor a coal face in 

that vein. Tr. 180-86. Neidlinger further contended that his men intersected the Middle Split by 

accident. He explained that when they began developing the rock tunnel, they did not have an 

engineering cross-section or any bore holes to tell them exactly where the veins were or how far 

apart they lay. Tr. 12-13, 169-70. When they first reached the Bottom Split, they tunneled 

through it and continued driving south because the coal was only 10 inches thick and they 

believed it to be a small leader vein, a type of formation that is commonly found between larger 

veins in anthracite mines. Tr. 13, 169-70. It was only when they reached the Middle Split that 

they realized their error. Neidlinger testified that the coal in the Middle Split was so thick that he 

knew right away they had tunneled too far and immediately withdrew his men and equipment to 

the Bottom Split. Tr. 13, 170, 177-78. 

Although Little Buck may have initially intersected the Bottom Split unwittingly, the 

evidence does not bear out Neidlinger’s assertions that he withdrew his men from the Middle 

Split immediately upon intersecting it and did not engage in any mining on that vein. The mine’s 

preshift examination records tell a different story. According to Dudash, the records reveal that 

 

39 FMSHRC Page 1635
the Middle Split was examined from September 15 or 16 until on or about September 30,7

indicating that men were working in the vein for almost two weeks. Tr. 60, 63, 73. Neidlinger 

does not dispute Dudash’s description of the exam records. Moreover, Neidlinger testified that 

he abandoned the area south of the Bottom Split only after the roof collapsed, contradicting his 

own testimony that he withdrew immediately. Tr. 170. It was not inconsistent with Little Buck’s 

past behavior to commence or continue mining into an area without permission from MSHA, as 

the operator had previously received a citation for beginning this very rock tunnel without 

waiting for MSHA’s approval. Tr. 81-82; GX 15. In addition, Inspector Dudash testified that he 

measured the tunnels beyond the Bottom Split after the collapsed roof in the area had been retimbered and definitively determined that Little Buck had driven 20 feet east on the Middle Split. 

Tr. 95-96. Twenty feet of development in the coal vein is obviously inconsistent with 

Neidlinger’s account that he withdrew as soon as he intersected it. 

Neidlinger disputes that Dudash actually walked into the entry on the Middle Split and 

measured it, arguing that the area where the roof collapsed was never timbered up and it was too 

wet for Dudash to travel beyond the roof fall. Tr. 186-87. I reject these contentions. I have no 

doubt that Dudash, a roof control specialist bearing no apparent ill will toward Little Buck who 

testified from memory without referring to his notes once and who quite candidly admitted Little 

Buck likely could have taken the same actions without incurring any violations if it had simply 

obtained MSHA’s approval first, Tr. 154, was a credible witness. Dudash testified there was only 

a small amount of water on the mine floor beyond the roof fall, and he could and did travel 

through it to take measurements and terminate the violations. Tr. 203. He also explained that the 

roof needed to be re-timbered so that mine personnel could travel under it to extend ventilation 

tubing to within 17 feet of the face of the Middle Split to abate Order No. 8000754 (the 

ventilation control violation). Tr. 202-04. The abatement narratives in that order and Order No. 

8000753 (the preshift exam violation) support this testimony, indicating that after the inspection, 

Little Buck extended ventilation tubing into the Middle Split and a preshift examiner accessed 

the area to conduct an adequate examination so the violations could be terminated. GX 2; GX 3. 

Considering all the foregoing, I credit Dudash’s allegation that he measured the entry on the 

Middle Split and found that Little Buck had mined 20 feet in this vein, which violated the roof 

control plan. 

Mining east rather than west on the Bottom Split also violated the roof control plan. 

Neidlinger claims that characterizing the eastward development as a violation is “a total 

misunderstanding” of his plan addenda. Tr. 168. He admits the addenda he submitted were 

confusing, but asserts that his original plan was to drive east on both the Seven Foot Vein and the 

Bottom Split and eventually connect the return to the east side of the Buck Mountain Vein 

workings across the main slope or connect the return in the same manner as set forth in the 

October 2014 addendum that was submitted to abate the violation. Tr. 153, 178, 194, 200. The 

map submitted with the January 2014 addendum appears to support this assertion, as it shows 

projected development to the east of the rock tunnel on both the Seven Foot Vein and the Bottom 

Split. See GX 9 (page numbered “MSHA053”); Tr. 136-37. 

 7

 There is some discrepancy regarding the timeframe in which the area was worked and 

when it was or should have been preshifted – specifically as to whether the examinations ended 

on September 26, 29, or 30. See Tr. 60, 63, 73, 114, 206; GX 1; GX 2; GX 3; GX 4; GX 6 at 12, 

28. Regardless, men were working in the Middle Split for almost two weeks. 

39 FMSHRC Page 1636
However, the fifth paragraph in the narrative portion of the addendum clearly states that 

development of the veins will proceed to the west. GX 9; Tr. 159-61. Likewise, both the text and 

the maps8

 in the March and August 2014 addenda, which supersede the January addendum, 

indicate that the Seven Foot Vein and Bottom Split will be mined to the west because the Seven 

Foot Vein was unmineable to the east. GX 10; GX 12; Tr. 53-56, 161-65, 189-91. Neidlinger has 

been working in the mining industry for forty years. Tr. 171. An operator with his experience 

should be well aware that the wording of the roof control plan and addenda and the maps 

submitted in support of them must be precise and accurate in order for MSHA to be able to 

approve them. Neidlinger prepared the maps and narratives at issue in this case and would have 

used terms with specific meanings. There are only two directions mining could have proceeded 

off the rock tunnel, east or west, and Neidlinger made it very clear which directions he was 

referencing whenever he encountered faulting and proposed ways to work around it. It is not 

plausible to believe he was simply confused about which direction he was permitted to mine. 

Further, the August addendum stated that Little Buck would connect a return airway from 

the Bottom Split to the Seven Foot Vein “using the same procedure” described in the March 

addendum, which would be impossible or very difficult to accomplish if the Bottom Split were 

developed to the east. GX 12. The referenced procedure was to develop a chute upward in the 

front/overlying/south vein (in this case, the Bottom Split) then develop a rock tunnel to meet it 

from the back/underlying/north vein (in this case, the Seven Foot Vein) in order to “have [the] 

return connected in like an apex,” which would be infeasible if the workings in the front vein 

were not aligned at least roughly parallel to the workings in the back vein. GX 10; Tr. 65, 140-

41, 192-93. Here, the workings in the two veins were not aligned at all. 

Considering all the foregoing evidence, I find that the March and August addenda 

permitted mining on the Bottom Split only to the west of the rock tunnel. Little Buck violated its 

approved roof control plan by developing a gangway to the east instead. 

Finally, I find that Little Buck also violated its roof control plan by mining approximately 

180 feet without developing a return airway or secondary escapeway. The roof control plan 

mandates that chutes (crosscuts) will be developed at least every 60 feet along each gangway. 

GX 8 at 18; Tr. 64, 147-48. The chutes are an important feature because they connect the 

gangway to the monkey heading, which carries return air and serves as a secondary escapeway. 

Little Buck’s plan addenda indicated that chutes would be developed on 40 foot centers. Tr. 66; 

GX 10; GX 12. The addenda also indicated that, whenever it was feasible to do so, Little Buck 

would immediately develop a return after intersecting a new vein. GX 9; GX 12; Tr. 133-34. 

Nonetheless, starting at the Seven Foot Vein, Little Buck drove a rock tunnel south 

 8

 The map in the August addendum on the page numbered “MSHA073” shows projected 

westward development that has been sketched in by hand and labeled “Bottom Split Vein.” GX 

12. At hearing, Neidlinger admitted he prepared the addendum but denied sketching in the 

projected westward development on the map and suggested that someone in the MSHA District 

Office must have added it. Tr. 191, 195-98. However, the handwriting on the map is consistent 

with all the other materials submitted with the addenda and appears to be Neidlinger’s. Tr. 196. 

Further, Inspector Dudash testified that operators are responsible for submitting maps in support 

of plan proposals and MSHA never prepares them or marks them up. Tr. 205-06. I reject 

Neidlinger’s assertion that he did not add the markings on the map in question. 

39 FMSHRC Page 1637
approximately 100 feet to intersect the Bottom Split and then drove a gangway directly east for 

80 more feet on the Bottom Split without developing a return rock tunnel, a monkey heading, or 

any chutes, in violation of the roof control plan. Tr. 63-64, 148. 

I conclude that Little Buck violated the mandatory safety standard at § 75.220(a)(1) by 

violating its approved roof control plan and addenda in the multiple ways discussed above. 

2. S&S and Gravity 

 Inspector Dudash marked this violation as S&S and reasonably likely to cause a lost 

workdays or restricted duty type injury to two miners. GX 1. He testified that mining outside of 

the roof control plan is generally considered highly unsafe, but multiple other more specific 

factors influenced his opinion that this particular violation was S&S, including that intake air 

was being pushed 180 feet by a fan, no secondary escapeway was provided for that entire 

distance, there were no ventilating devices in place to move air south of the barricade at the 

Bottom Split, and low oxygen was present in that area. Tr. 68-72. 

 With regard to the S&S determination, the first prong of the Mathies test is satisfied by 

my finding of a violation of a mandatory safety standard. 

 The second element of the test is also satisfied because mining outside of the roof control 

plan contributed to several discrete safety hazards that were reasonably likely to occur. First, by 

tunneling south of the Bottom Split and mining into the Middle Split without developing a plan 

to support the roof in this very thick coal seam and without obtaining MSHA’s input and 

approval of the plan, Little Buck contributed to the hazard that a roof or rib fall would occur with 

continued normal mining operations due to the lack of roof control parameters tailored to the 

geological conditions in the newly developed area. A roof fall did, in fact, occur due to 

inadequately supported roof. 

Second, the violation also created a hazard in that there was no secondary escapeway in 

the entire area south of the Seven Foot Vein. The operator had driven the rock tunnel a total of 

approximately 120 feet south (about 100 feet from the Seven Foot Vein to the Bottom Split and 

20 feet beyond the Bottom Split) and developed two entries to the east (the 80-foot entry on the 

Bottom Split and the 20-foot entry on the Middle Split) without driving a second rock tunnel or 

monkey heading to carry return air separately and to serve as an alternate escapeway. If an 

emergency had arisen, miners working anywhere south of the Seven Foot Vein along the entirety 

of the rock tunnel and the Bottom Split and Middle Split workings would have had only one 

possible escape route – the existing rock tunnel. If passage through the rock tunnel had been 

impeded, they would have had no escape route at all. 

The likelihood an emergency would occur with continued normal mining operations was 

increased by the ventilation hazards present in the area, which Inspector Dudash cited in the 

other four violations at issue in these proceedings and which are discussed in greater detail 

below. To briefly summarize, there was no monkey or return tunnel south of the Seven Foot 

Vein to separate the return air from the areas where miners worked and traveled. Tr. 63-64. 

Instead, the operator was using tubing and an air-moving fan to ventilate the Bottom Split. Tr. 

39 FMSHRC Page 1638
125. The fan was pushing clean air through 180 feet of tubing, a much longer distance than the 

40 to 60 feet (the distance between crosscuts) contemplated in the ventilation plan, and air that 

had swept the face was then allowed to flow back outside of the tubing. Tr. 68, 76, 126. For this 

reason, miners on the active MMU in the Bottom Split were required to work in 180 feet of dirty 

air that had already swept the face, including air that had passed the barricaded-off area south of 

the Bottom Split. Tr. 118, 126. The entire 40 feet of development in the barricaded area south of 

the Bottom Split was found to have no ventilation controls and no air movement, and low 

oxygen was detected there. Tr. 70-71, 96-99, 112; GX 3; GX 5. The barricade was not airtight 

and would not have prevented bad air from rolling out onto the working section, and moreover, 

by blocking access to the area, it prevented the operator from conducting preshift examinations 

to identify and address the hazardous ventilation conditions described above. Tr. 69-70, 80. In 

sum, ventilation was inadequate south of the Seven Foot Vein. If an emergency were to arise 

stemming from inadequate ventilation, Little Buck’s violation of its roof control plan contributed 

to the discrete hazard that the miners on the active working section would be unable to escape 

the area due to the lack of a secondary escapeway. 

The third and fourth Mathies elements inquire whether the hazard, assuming it were to 

occur, would be reasonably likely to result in a reasonably serious injury. A roof fall actually 

occurred in this case. Fortunately, no one was injured. However, roof or rib collapses are 

historically a leading cause of injury in underground mines and are reasonably likely to cause 

serious or fatal crushing injuries to anyone in their vicinity. In this case, two miners were 

regularly working underground on the active working section at the time of the violation and 

were therefore exposed to the hazard. Tr. 72-73. With regard to Little Buck’s failure to maintain 

a secondary escapeway, assuming an emergency were to occur underground such as a mine fire 

or encroachment of bad air on the working section that would necessitate the use of an alternate 

escapeway, any miners on the section would be trapped underground and would be reasonably 

likely to incur serious injuries or perish. Accordingly, the third and fourth Mathies elements are 

satisfied. 

Because the four Mathies elements are met, I find that this violation was S&S. I also find 

that this was a serious violation because it could have caused death or serious injury to the two 

miners working south of the Seven Foot Vein due to a roof or rib collapse arising out of Little 

Buck’s failure to comply with an approved roof control plan or due to entrapment in the mine 

during an emergency arising out of Little Buck’s failure to maintain a secondary escapeway. 

3. Unwarrantable Failure and Negligence 

Dudash marked this violation as involving a high degree of negligence and designated it 

an unwarrantable failure to comply with a mandatory safety standard. GX 1. He reasoned that 

Neidlinger is the owner, operator, and foreman of the mine who puts together the plans, signs 

them, and examines the mine on a daily basis, and who had received a citation less than a year 

earlier for mining outside of his roof control plan, yet he knowingly violated his plans again by 

mining to the south and east without seeking MSHA’s approval. Tr. 76-77. 

 

39 FMSHRC Page 1639
Extensiveness of Violation; Duration; Degree of Danger Posed 

The extensiveness of a violation is usually analyzed in terms of the physical dimensions 

of the affected area, the number of miners endangered, the efforts required to abate the violation, 

or other similar factors. This violation was extensive in that Little Buck mined 80 feet outside of 

its roof control plan on the Bottom Split and another 40 feet in the areas south of the Bottom 

Split. See Tr. 77. In addition, all of the miners on the working section would have been exposed 

to the dangers presented by the violation. Neidlinger suggested that he was required to do almost 

nothing to abate the violation and simply carried on with his plans to drive east, see Tr. 141, 153, 

but I find that the violation required extensive abatement actions. Little Buck was required to 

develop a monkey heading and crosscuts and drive a second rock tunnel all the way from the 

Bottom Split gangway to the rock tunnel north of the Seven Foot Vein. 

At the time of the October 8, 2014 inspection, the examination records revealed that 

Little Buck had been mining on the Bottom Split and Middle Split since September 15 or 16, 

2014. Tr. 77-78. Accordingly, the duration of this violation was approximately 23 days. 

During this entire time period, as discussed above, all the miners on the active working 

section were subjected to the danger of roof or rib falls because they were working in locations 

that were not covered by an approved roof control plan. In addition, they were exposed to the 

hazards posed by working on a section without a secondary escapeway. Accordingly, I find that 

the degree of danger posed by the violation was high. 

Knowledge of Violation; Obviousness 

 Knowledge of a violation is established where the operator knew or reasonably should 

have known of the violation. Coal River Mining, LLC, 32 FMSHRC 82, 95 (Feb. 2010). The 

knowledge or negligence of an agent may be imputed to the operator. Excel Mining, LLC, 37 

FMSHRC 459, 467-68 (Mar. 2015); Martin Marietta Aggregates, 22 FMSHRC 633 (May 2000). 

 

Inspector Dudash testified that he himself did not notice that Little Buck was mining in 

the wrong direction until he had looked over the plans in detail, but he believed the violation 

should have been obvious to Neidlinger because he was the person who had drafted and 

submitted the plan addenda, was responsible for implementing them and ensuring compliance 

with them, and was the foreman responsible for directing the everyday work of the miners. Tr. 

21-23, 78-80, 165. Neidlinger had been examining the mine since at least July 29, 2014. Tr. 21-

22. He admitted he wrote the plans at issue in this case and submitted them to MSHA. Tr. 189-

91, 193. In Inspector Dudash’s opinion, Neidlinger was well aware of the requirements of the 

roof control plan and simply ignored them. Tr. 166. I agree. As the mine’s co-owner, operator, 

foreman, and preshift examiner who regularly traveled underground to inspect the active 

working section, I find that Neidlinger had knowledge of this violation. Because he is an agent of 

the company, his knowledge is imputable to Little Buck. 

 

39 FMSHRC Page 1640
Notice of Need for Greater Compliance Efforts 

An operator’s history of past similar violations or other specific warnings from MSHA is 

relevant to the unwarrantable failure analysis to the extent the past violations and warnings 

placed the operator on notice, before the citation was issued, that greater efforts were necessary 

for compliance with the cited safety standard. 

Dudash testified that, at the time this citation was issued, Little Buck had already been 

warned not to mine outside of its roof control plan because it had received a citation in January 

2014 (GX 15, Citation No. 8000809) for beginning development of this very rock tunnel without 

an approved plan. Tr. 81-82, 144-46. Neidlinger had also received a citation for mining outside 

his roof control plan at a previous mine when he was leaving pillars that were not wide enough. 

Tr. 82. However, Inspector Dudash believed that the January citation, alone, placed the operator 

on notice of the need not to initiate new development without submitting a plan and waiting for 

approval. Tr. 146. I find that the January citation placed Little Buck and Neidlinger on notice of 

the need for greater compliance efforts before the subject citation was issued. 

Abatement Efforts 

Although Little Buck knew of this violation and had prior notice of the need for greater 

compliance efforts, the operator made no effort to abate the violation and did not submit a plan 

addendum addressing the many problems created by mining outside its approved plan until after 

the citation was issued. 

Little Buck did erect a barricade to prevent travel south of the Bottom Split, which was 

an abatement measure of sorts in that it stopped miners from accessing some of the areas that had 

previously been mined without an approved roof control plan. However, the barricade did not 

resolve any of the ventilation issues affecting the working section because it was not airtight, and 

it also prevented anyone from conducting a proper preshift examination of the barricaded area. 

Tr. 69-70, 80. Moreover, the barricade was erected and the men and equipment were withdrawn 

from the area beyond it only after the roof had collapsed, at which point miners had already been 

working in the area for more than two weeks. Tr. 80-81. Thus, I do not consider Little Buck’s 

installment of a barricade to be a significant mitigating factor. 

 Conclusions 

The evidence shows that Neidlinger flatly disregarded the requirements of § 75.220(a)(1) 

and knowingly forged ahead with development of new areas of the mine without an approved 

roof control plan. At hearing, Inspector Dudash seemed to lament the senselessness of these 

actions, noting that “if you [Neidlinger] would have put in for a plan like that originally, you 

could have done it legally. And you would have not had any problems. The district manager 

could have looked it over, provided whatever safeguards he deemed necessary to protect you and 

then allowed you to do it. It all just came for naught that you did it before you got the plan.” Tr. 

154. Neidlinger should have submitted another plan addendum and waited for MSHA’s 

approval, and his negligence in failing to do so is imputable to Little Buck. Based on all the 

factors discussed above, particularly the obviousness of this violation, the fact that Little Buck 

39 FMSHRC Page 1641
had recently received a citation for beginning this very same rock tunnel without an approved 

roof control plan to do so, the extensiveness and degree of danger posed by the violation, and the 

knowledge and involvement of supervisor and co-owner Neidlinger, I find that Little Buck 

exhibited aggravated conduct constituted more than ordinary negligence. Accordingly, I find that 

this violation constituted an unwarrantable failure to comply with the roof control plan and with 

§ 75.220(a)(1), and it was appropriate for Inspector Dudash to issue the citation under 104(d)(1). 

For the same reasons, I also find that Little Buck’s negligence was high. 

B. Order Number 8000755 (Ventilation Plan Violation) 

This order was issued on October 8, 2014 under section 104(d)(1)9

 of the Mine Act and 

alleges, in pertinent part: 

The operator is not following his ventilation control addendum to develop 

a rock tunnel gangway, approved March 13, 2014. ... The operator’s 

approved ventilation addendum clearly shows all development will be on 

the west side of the intake rock tunnel gangway. The operator’s approved 

roof control addendum indicates the same. In addition, the operator can 

not develop a return through the 7 Foot Vein to the Buck Mountain Vein, 

as stated in the approved ventilation addendum. There is no 7 Foot Vein 

developed east of the intake rock tunnel gangway for a return connection 

and connecting to the Buck Mountain Vein would put the return on the 

intake side of the Buck Mountain gangway. The approved ventilation 

addendum also states that the 7 Foot Vein is totally faulted on the east side 

and this would make it impossible to develop a complete return rock 

tunnel. Thus, this addendum is to develop the return to the west. ... Two 

miners work on this MMU-001-0 on a daily basis and are exposed to this 

violation. 

GX 4. 

The standard alleged to have been violated is 30 C.F.R. § 75.370(a)(1), which states in 

pertinent part: “The operator shall develop and follow a ventilation plan approved by the district 

manager. The plan shall be designed to control methane and respirable dust and shall be suitable 

to the conditions and mining system at the mine.” Inspector Dudash explained that the purpose of 

the ventilation plan is to show how the operator will maintain a complete air circuit to ensure the 

faces are swept with clean air and any methane and noxious gases are removed from the areas 

where men are actively working. Tr. 46. As is the case for roof control plan provisions, the 

provisions of a mine’s approved ventilation plan are enforceable as mandatory safety standards 

at the mine. Martin County Coal Corp., 28 FMSHRC 247, 254 (May 2006). 

 9

 The issuance of an order under section 104(d)(1) denotes that the alleged violation was 

caused by the mine operator’s “unwarrantable failure” to comply with a mandatory health or 

safety standard and that the operator had already received a 104(d)(1) citation within the past 90 

days. See 30 U.S.C. § 814(d)(1). 

39 FMSHRC Page 1642
Little Buck’s main ventilation plan for this mine was not submitted as evidence. The only 

portion of the ventilation plan submitted to the record is GX 11, a March 2014 plan addendum 

that is substantively identical to the March 2014 roof control plan addendum. Tr. 163; compare 

GX 10 with GX 11. Dudash testified that Little Buck also submitted an August 2014 ventilation 

plan addendum containing the same information as the August 2014 roof control addendum. Tr. 

44-45. The Secretary contends that Little Buck violated its approved ventilation plan and 

addenda in the same ways it violated the roof control plan. Sec’y Br. 15-17. 

I have already found that Little Buck’s roof control plan addenda did not discuss or 

permit developing the rock tunnel south of the Bottom Split, engaging in mining on the Middle 

Split, or mining east rather than west on the Bottom Split. Little Buck’s ventilation plan addenda 

were substantively identical to the roof control plan addenda. Therefore, I find that Little Buck 

also violated its ventilation plan by extending the rock tunnel 20 feet south of the Bottom Split, 

mining 20 additional feet on the Middle Split, and mining to the east rather than the west on the 

Bottom Split. 

Little Buck also violated the ventilation plan by driving approximately 180 feet without 

developing a monkey heading or a return rock tunnel. As previously discussed, the Bottom Split 

workings were being ventilated with the aid of a fan that was pushing intake air through 12-inch 

tubing from a point 180 feet outby the face. Tr. 125. After sweeping the face, the air was then 

allowed to flow back along the entirety of the 180-foot intake airway before being swept up into 

the Seven Foot Vein. Tr. 125-26. Dudash testified that miners normally are not allowed to work 

in return air, which is generally defined under 30 C.F.R. § 75.301 as air that already ventilated 

the working place, unless the work is “rehabilitating.” Tr. 118, 127-28. Dudash further explained 

that in an anthracite mine with chutes on 40 to 60 foot centers, the mine operator is permitted to 

use an air mover to ventilate the area inby the last open crosscut only because miners are 

working in dirty air for a relatively short distance of 40 to 60 feet (the distance from the face to 

the last open crosscut). Tr. 68, 76, 117-18. By contrast, under the setup that was in place on the 

day of the inspection, miners working on the active section would have been exposed to 180 feet 

of dirty air that had already swept the face, as no separate return structures had been developed to 

carry this air away. Tr. 118. The District Manager likely would not have approved this 

arrangement or permitted Little Buck to continue mining east without implementing safeguards 

such as requiring the operator to develop a monkey heading and return rock tunnel, which were 

some of the measures taken to abate the violation. See Tr. 142-43. I find that driving 180 feet 

without developing a return violated the mine’s ventilation plan. 

Because Little Buck violated its approved ventilation plan in multiple ways, I find that a 

violation of § 75.370(a)(1) occurred. 

2. S&S and Gravity 

 Inspector Dudash marked this violation as S&S and reasonably likely to cause a lost 

workdays or restricted duty type injury to two miners. GX 4. 

 The first prong of the Mathies test for S&S is satisfied by my finding of a violation of a 

mandatory safety standard. 

39 FMSHRC Page 1643
 The second element of the test is also satisfied because mining outside of the ventilation 

plan contributed to the discrete safety hazard of inadequate ventilation controls, a hazard which 

was more than reasonably likely to occur. It is inherently dangerous to engage in mining without 

an approved ventilation plan because this creates a risk that miners will be working in an area 

without the appropriate safeguards and parameters in place to ensure that clean air is being 

delivered to the face and air carrying potentially harmful gases is being safely swept away. In 

this case, submission and approval of a ventilation plan covering the areas where Little Buck was 

mining would have likely required the operator to develop a return tunnel and monkey heading 

in the Bottom Split to prevent miners from working in 180 feet of dirty air. Also, Little Buck 

likely would have been required to install ventilation controls to move air through the area south 

of the Bottom Split and would have been required to conduct regular preshift examinations in 

that area to ensure there were no air quality problems developing such as low oxygen that might 

affect the working section if air were to pass through the barricade. However, these safeguards 

were never implemented because Little Buck failed to develop and follow a roof control plan 

tailored to the areas in question, and by the time of the inspection the barricaded-off area was 

found to be a dead-air space with low oxygen, high carbon dioxide, and no air detectable 

movement. Tr. 68, 96, 99. Considering all the foregoing, Little Buck’s failure to develop and 

follow a roof control plan did not just contribute to a potential hazard, but actually exposed all 

the miners working in the areas south of the Seven Foot Vein to the discrete hazard of inadequate 

ventilation controls. 

This hazard was reasonably likely to result in a reasonably serious injury to the two 

miners who were regularly present on the active working section. With continued normal mining 

operations, inadequate ventilation leads to the accumulation of explosive dusts and gases and of 

noxious gases such as carbon dioxide that can cause suffocation. This was not a gassy mine and 

there is no evidence an explosion was likely. Tr. 76. However, low levels of oxygen and high 

levels of carbon dioxide were in fact detected in the unventilated dead-end area south of the 

Bottom Split, and no preshift examinations were being conducted in the area that would have 

timely identified the problem. The bad air could have seeped through the barricade erected at the 

Bottom Split, which was not airtight, and mixed with the atmosphere in the areas where miners 

were actively working. Tr. 68-72, 107. This condition, if allowed to worsen with continued 

normal mining operations, would be reasonably likely to result in serious and potentially fatal 

injuries to miners rendered unconscious and unable to escape the area due to oxygen deprivation, 

as miners can be overcome by oxygen deficient air and lose consciousness without even realizing 

what is happening. Tr. 103-04. Accordingly, the third and fourth Mathies elements are satisfied. 

Because the four Mathies elements are met, I find that this violation was S&S. I also find 

that this was a serious violation because it could have caused death or serious injury to the two 

miners on the active working section due to inadequate ventilation in all the areas to the south of 

the Seven Foot Vein. 

3. Unwarrantable Failure and Negligence 

Dudash marked this violation as involving a high degree of negligence and designated it 

an unwarrantable failure to comply with a mandatory safety standard, for largely the same 

reasons he had assessed the roof control plan violation as an unwarrantable failure. Tr. 76-77. 

39 FMSHRC Page 1644
Extensiveness of Violation; Duration; Degree of Danger Posed 

This violation was extensive in that Little Buck mined 80 feet outside of its ventilation 

plan on the Bottom Split, mined 40 feet outside of its plan in the areas south of the Bottom Split, 

and developed a 120-foot rock tunnel with two east-facing entries without creating any separate 

return structure. The violation was also extensive in that all of the miners on the active working 

section would have been exposed to the dangers it posed. As was the case for the other plan 

violation, Little Buck was required to take the fairly extensive abatement measures of developing 

a monkey heading and crosscuts and driving a second rock tunnel all the way from the Bottom 

Split gangway to the rock tunnel north of the Seven Foot Vein. 

Based on the preshift examination records showing that Little Buck had started mining on 

both the Bottom Split and Middle Split on September 15 or 16, I find that the duration of this 

violation was approximately 23 days. Tr. 77-78. 

During this entire time period, all the miners on the active working section were exposed 

to the dangers of inadequate ventilation, for the reasons mentioned above in my discussion of 

S&S and gravity. Accordingly, I find that the degree of danger posed by the violation was high. 

Knowledge of Violation; Obviousness 

 As was the case with the roof control plan violation, the ventilation plan violation would 

have been very obvious to Neidlinger because he was the co-owner, operator, foreman, and 

examiner of the mine and had prepared and submitted the ventilation plan and addenda, which he 

was responsible for faithfully implementing at the mine. Tr. 21-23, 79-80, 189-93. Accordingly, 

I find that Little Buck had knowledge of this violation through its agent, Neidlinger. 

Notice of Need for Greater Compliance Efforts 

As previously noted, Little Buck received a citation for mining outside of its roof control 

plan in January 2014 after it began developing the same rock tunnel at issue in this case without 

waiting for the District Manager’s approval. GX 15; Tr. 81-82. Although the January citation 

does not pertain to ventilation, it pertains to a plan violation and is factually related to the events 

leading to the issuance of the instant violation. The January citation should have placed Little 

Buck on notice of its general need not to embark on new development without creating plan 

addenda, submitting them to the District Manager, and waiting for approval to proceed. 

The record also shows that Little Buck received acitation for a violation of the standard 

cited here, § 75.370(a)(1), within the fifteen months preceding the issuance of the instant 

violation. GX 14. This should have further placed Little Buck on notice of the need to make 

greater efforts to comply with this regulation. 

Abatement Efforts 

Although Little Buck knew of this violation, the operator made no effort to abate the 

violation or address the ventilation problems on the section until after the order was issued. For 

39 FMSHRC Page 1645
the reasons previously mentioned in my discussion of Citation No. 8000752, I do not consider 

Little Buck’s erection of the barricade at the Bottom Split to be an adequate abatement effort or a 

significant mitigating factor. 

 Conclusions 

As was the case with the roof control plan violation, the evidence shows that Little Buck 

flatly disregarded the requirements of the operative regulation and intentionally developed new 

areas of the mine without an approved plan or addendum in place to assure adequate ventilation. 

Based on all the factors discussed above, particularly the obviousness of this violation, 

Neidlinger’s knowledge of it, and the extensiveness and degree of danger it posed, I find that 

Little Buck exhibited aggravated conduct constituting more than ordinary negligence. 

Accordingly, this violation constituted an unwarrantable failure to comply with the ventilation 

plan and with § 75.370(a)(1), and it was appropriate for Inspector Dudash to issue the order 

under 104(d)(1). 

For the same reasons, I also find that Little Buck’s negligence was high. 

C. Order Number 8000753 (Preshift Examination Violation) 

This 104(d)(1) order was issued on October 8, 2014 and alleges:

The operator has not been conducting an adequate preshift examination, 

on the 1st level MMU-001-0, since September 26, 2014. The preshift 

examiner has not been traveling an entry developed over 20 feet off the 

intake rock tunnel gangway air course. This entry has been boarded and 

dangered off. This entry is not provided with a cross cut or ventilation 

controls. Air passes by this entry to reach the working section working 

face, MMU-0010, approximately 80 feet inby the entry. The calibrated 

permissible multi-gas detector (Ser. No. A5-146096 & Approval No. 22-

A040001-0) measured 19.4% oxygen ten feet in this entry. The preshift 

examiner, Edmund Neidlinger, is also the mine foreman and co-owner of 

this mine. The preshift exam record indicates that this entry has been 

abandoned since September 26, 2014. Two miners normally work on this 

section on a daily basis and are exposed to this hazard. 

GX 2; Tr. 90-91. 

The standard alleged to have been violated is a subsection of 30 C.F.R. § 75.360, which 

governs preshift examinations. The cited subsection requires mine operators to conduct preshift 

examinations of any “[e]ntries and rooms developed after November 15, 1992, and driven more 

than 20 feet off an intake air course without a crosscut and without permanent ventilation 

controls where intake air passes through or by these entries or rooms to reach a working section 

where anyone is scheduled to work during the oncoming shift.” 30 C.F.R. § 75.360(b)(6)(ii). 

39 FMSHRC Page 1646
The parties stipulated that the entry cited in this order, the entry on the Middle Split, was 

not provided with a crosscut or ventilation controls. Joint Ex. 1. As discussed above, this entry 

was driven 20 feet off the southernmost end of the rock tunnel, which had been driven 20 feet off 

of the intake air course located at the Bottom Split. The entire area south of the Bottom Split was 

not being examined as of the inspection date because it was barricaded off. Thus, the remaining 

inquiry under § 75.360(b)(6)(ii) is whether intake air was passing by or through the cited area to 

reach the working section. 

 The Secretary defines the working section to include “[a]ll areas of the coal mine from 

the loading point of the section to and including the working faces” where the coal is extracted. 

30 C.F.R. § 75.2. Intake air is “[a]ir that has not yet ventilated the last working place on any split 

of any working section, or any worked-out area, whether pillared or nonpillared.” 30 C.F.R. § 

75.301. The working place is “[t]he area of a coal mine inby the last open crosscut,” 30 C.F.R. § 

75.2, and the last open crosscut is the crosscut closest to the working face that does not have a 

stopping. Jim Walter Res., Inc., 11 FMSHRC 21, 26 (Jan. 1989); 30 C.F.R. § 75.360(c)(1). 

In this case, Dudash testified that the last open crosscut was the Seven Foot Vein, so the 

entire area south of the Seven Foot Vein constituted the working place where miners would work 

and travel all day long; further, he considered all the air flowing through the working place to be 

intake air. Tr. 62, 72, 123-28, 158. Thus, intake air was flowing by the barricade to reach 

portions of the working section. 

Neidlinger agreed that the Seven Foot Vein was the last open crosscut and that the active 

working section included the Bottom Split workings and the 100-foot segment of the rock tunnel 

between the Bottom Split and Seven Foot Vein. Tr. 173, 187-88. However, he characterized the 

air flowing by the barricade into the rock tunnel as return air because it was moving outby after 

sweeping the face of the Bottom Split gangway. Tr. 117, 167, 171-74. Generally, return air is 

defined as air that has ventilated the last working place or that mixes with other return air, 

although the Commission has noted that the term may have different meanings for purposes of 

different standards. Zeigler Coal Co., 15 FMSHRC 949, 952 n.3 (June 1993); 30 C.F.R. § 

75.301. Relying on this definition, Neidlinger insisted that the area south of the Bottom Split did 

not need to be examined each shift because it was part of the return air course and the only air 

passing by it was return air. Tr. 13-14, 116-17, 167, 198-99. 

Inspector Dudash noted that even if the area south of the barricade were part of a return 

air course, it would need to be examined on a weekly basis, which Little Buck was not doing. Tr. 

117; see 30 C.F.R. § 75.364(b)(2) (requiring weekly examinations of return air courses). But he 

did not consider the area to be part of a return air course. Tr. 117. For one thing, although the 

ambient air passing by the barricade had already swept the face in the Bottom Split and was 

flowing outby, the 12-inch tubing carrying fresh air to the face also passed by the barricade and 

could have been contaminated with and recirculated dirty air seeping from the barricade if there 

were any flaws or tears in the tubing. Tr. 128-30. More importantly, Inspector Dudash explained 

that while return air is generally defined as air that has swept the last working face, in this type of 

mine it is not considered return air until it hits the last open crosscut and travels up into the 

monkey heading. Tr. 118-19. Thus, all the air inby the Seven Foot Vein would still be 

considered intake air. This makes sense because everything inby the last open crosscut is part of 

39 FMSHRC Page 1647
an active working place where men work and travel daily. For purposes of ventilation standards 

such as § 75.360(b)(6)(ii), any air ventilating areas inby the last open crosscut should be 

considered intake air regardless of which direction it is flowing and whether it has already swept 

the face. Accordingly, I accept Dudash’s testimony that the air passing the barricade was intake 

air because it had not yet reached the last open crosscut. 

The area south of the barricade was not being regularly examined from the time Little 

Buck withdrew from the Middle Split and erected the barrier until the date of the inspection. 

Because this was an entry developed after November 15, 1992 and driven more than 20 feet off 

an intake air course without a crosscut or permanent ventilation controls, and because intake air 

passed by it to reach portions of the working section, I find that Little Buck violated § 

75.360(b)(6)(ii) by failing to regularly examine it as part of the required preshift examination of 

the working section. 

 

2. S&S and Gravity 

Inspector Dudash marked this violation as S&S and reasonably likely to cause a lost 

workdays or restricted duty type injury to two miners. GX 2. He was concerned that dangerous 

gases and low oxygen could accumulate in the area south of the barrier because this was a deadend space driven more than 20 feet with no ventilation controls, and therefore it should have 

been examined to ensure nothing harmful was seeping out onto the active working section 

through the barricade. Tr. 108-10. 

 The first element of the Mathies test for S&S is satisfied by my finding of a violation of a 

mandatory safety standard. 

 The second Mathies element is also satisfied because the violation contributed to the 

discrete safety hazard that the operator would not recognize and address hazardous conditions 

arising in the barricaded area that could have affected miners on the working section. This hazard 

was reasonably likely to occur, and did in fact occur. Inspector Dudash identified several 

hazardous conditions that were present in the barricaded area and had not been addressed, 

including low oxygen and lack of ventilation controls. GX 3; GX 5. If normal mining operations 

had continued and the operator had continuously failed to examine the unventilated area, noxious 

gases or oxygen-deficient air could have accumulated there and seeped onto the active working 

section through the barricade undetected. Tr. 68-72, 107. Any air seeping past the barricade 

would mix with the ambient air in the rock tunnel where miners worked and traveled on a daily 

basis, exposing the miners to a discrete safety hazard. For example, carbon dioxide is invisible 

and odorless, and a miner exposed to high levels of this gas would not be aware of it unless he 

happens to be wearing a detector that alarms. Tr. 104. Because high levels of carbon dioxide 

cause a reduction in oxygen levels, the miner could be “overcome with the carbon dioxide 

without even really knowing it.” Tr. 103-04. For these reasons, I find that Little Buck’s failure to 

conduct preshift examinations in the cited area contributed to the discrete safety hazard that the 

operator would fail to detect hazardous ventilation conditions that would affect the area north of 

the barricade where miners worked and traveled. 

39 FMSHRC Page 1648
This hazard, assuming it were to occur, would be reasonably likely to result in serious 

injuries or death under the circumstances of this case, satisfying the remaining two Mathies 

elements. Only two miners were present on the active working section on a regular basis, and 

they were required to work and travel in 180 feet of air that had already swept the face, including 

100 feet of air that had passed by the barricaded area. If bad air were to accumulate behind the 

barricade and roll past it, both miners could be overcome and lose consciousness, preventing 

them from escaping the section. This would likely result in death or serious injuries due to 

suffocation. 

Because the four Mathies elements are met, I find that this violation is S&S. I also find 

that this was a serious violation because it could have caused death or serious injury to the two 

miners working south of the Seven Foot Vein, for the reasons discussed above. 

3. Unwarrantable Failure and Negligence 

Dudash marked this violation as involving high negligence and unwarrantable failure. 

GX 2. He testified that he assessed it as an unwarrantable failure because Little Buck knew the 

cited area was not ventilated, yet barricaded it off, preventing anyone from conducting regular 

preshift examinations of it. Tr. 106-07. 

Extensiveness of Violation; Duration; Degree of Danger Posed 

Although only a 40-foot-long area was not being examined, this violation was extensive 

because it affected the entire working section south of the Seven Foot Vein and all of the miners 

working there. 

At the time of the October 8, 2014 inspection, the examination records revealed that 

Little Buck had stopped examining the area at some time between September 26 and 30. 

Therefore, the area had not been preshifted for more than a week. 

As discussed above, the violation posed a risk that hazardous conditions, particularly air 

quality issues, arising in the unexamined area would go undetected and would affect areas where 

miners were actively working, potentially causing death or serious injuries to those working and 

traveling in the rock tunnel north of the barricade. Thus, I find that this violation presented a high 

degree of danger. 

Knowledge of Violation; Obviousness 

Once again, this violation would have been obvious to Neidlinger in his capacity as the 

mine’s co-owner and operator, the foreman in charge of daily operations underground, and the 

preshift examiner who had been examining the active working section since July 2014. 

Neidlinger knew the area south of the Bottom Split was a dead-end space with no ventilation 

controls, but after the roof collapsed, he decided to simply abandon the area without installing 

ventilation controls or constructing an airtight seal. Under the circumstances, he should have 

known that the area needed to be examined regularly to ensure that air quality problems were not 

developing that could affect the active areas of the mine. Yet he barricaded it off instead, 

39 FMSHRC Page 1649
affirmatively preventing anyone from traveling the area to check for bad air or other hazards. Tr. 

110. I find that he knew of this violation, and his knowledge is imputable to Little Buck. 

Notice of Need for Greater Compliance Efforts 

There is no evidence that Little Buck received past similar violations or other specific 

warnings from MSHA that would have placed it on notice that greater efforts were necessary for 

compliance with the cited safety standard. 

Abatement Efforts 

Although Little Buck knew of this violation and could have easily abated it by conducted 

an examination of the cited area, no abatement efforts were undertaken until after Inspector 

Dudash issued the order. 

 Conclusions 

Based on the factors discussed above, particularly Little Buck’s knowledge of this 

violation, the danger it posed, and the fact that the operator knowingly erected a non-airtight 

barricade which had the effect of preventing anyone from looking into or examining the cited 

area, I find that Little Buck exhibited aggravated conduct constituting more than ordinary 

negligence in violating § 75.360(b)(6)(ii). Accordingly, this violation was an unwarrantable 

failure to comply with the regulation, and Inspector Dudash properly issued the order under 

section 104(d)(1). 

For the same reasons, I also find that Little Buck’s negligence was high. 

D. Order Number 8000754 (Ventilation Control Violation) 

This 104(d)(1) order was issued on October 8, 2014 and alleges:

The Middle Split Mammoth Vein east is developed over 20 feet off the 

intake rock tunnel gangway without a crosscut or line brattice installed to 

provide adequate ventilation. The calibrated permissible multi-gas detector 

(Ser. No. A5-146096 & Approval No. 22-040001-0) measured 19.4% 

oxygen ten feet in this entry. Air passes by this entry to reach the working 

section working face, MMU-001-0, approximately 80 feet inby the entry. 

The preshift examiner, Edmund Neidlinger, is also the mine foreman and 

co-owner of this mine. The preshift exam record indicates that this entry 

has been abandoned since September 26, 2014. Two miners normally 

work on this section on a daily basis and are exposed to this hazard. 

GX 3. 

The standard alleged to have been violated is 30 C.F.R. § 75.333(g), which states in 

pertinent part: “Before mining is discontinued in an entry or room that is advanced more than 20 

39 FMSHRC Page 1650
feet from the inby rib, a crosscut shall be made or line brattice shall be installed and maintained 

to provide adequate ventilation.” The purpose of this provision is to “prevent the creation of 

‘dead-air’ spaces” where harmful gases could accumulate. 57 Fed. Reg. 20868, 20885 (May 15, 

1992). 

The location cited in the order was the entry driven east on the Middle Split, where 

mining had been discontinued. The parties stipulated that this entry was not provided with a 

crosscut or other ventilation controls. Joint Ex. 1; Tr. 71, 75, 93-94. As discussed above, the 

entry was driven approximately 20 feet off the rock tunnel, which had been driven 20 feet 

beyond the barricade at the Bottom Split where air coursed by. This created a 40-foot dead-air 

space. Inspector Dudash testified there was no air movement in the area beyond the barricade. 

Tr. 96. 

Considering the foregoing, I find that Little Buck violated § 75.333(g) by failing to 

develop a crosscut or install any temporary or permanent ventilation controls to ensure that the 

face of the Middle Split workings was being ventilated properly and to prevent the accumulation 

of oxygen-deficient air, methane, or carbon dioxide. 

 

2. S&S and Gravity 

Inspector Dudash initially marked this violation as S&S and reasonably likely to cause a 

lost workdays or restricted duty type injury to two miners, citing the potential for carbon dioxide 

to escape to the active working section and cause harm to miners and the likelihood it would 

accumulate to deadly levels if normal mining operations were to continue. GX 3; Tr. 112. In 

hindsight, he said he would consider marking the severity of the expected injury as “fatal” 

because analysis of the air sample he had taken in the cited area had revealed high carbon 

dioxide and low oxygen. Tr. 113. 

 The first element of the Mathies test for S&S is satisfied because a violation of a 

mandatory safety standard occurred. 

 The second Mathies element is also satisfied because the violation contributed to the 

discrete safety hazard that, if normal mining operations had continued, oxygen-deficient air or 

high levels of carbon dioxide could have accumulated in the dead-air space and seeped through 

the barricade into the areas where miners were actively working and traveling. As discussed 

above in connection with the previous violations, the likelihood of this hazard occurring was 

especially high considering that the barricaded area was not being regularly examined to ensure 

that no bad air was accumulating; that the miners on the active section were working in 100 feet 

of air (in the rock tunnel between the Bottom Split and Seven Foot Vein) that had passed by the 

barricaded area; and that there was no alternate travelway or escapeway in which they could 

have sought refuge from bad air. 

As was also discussed above, the two miners regularly working on the active section 

could be overcome by the low levels of oxygen or high levels of carbon dioxide and could lose 

consciousness without even recognizing the hazard. Tr. 103-04. Thus, the injuries expected to 

39 FMSHRC Page 1651
result from this hazard, if it were to occur, would likely be serious or even fatal injuries resulting 

from suffocation. This satisfies the third and fourth elements of the Mathies test. 

 

Because the four Mathies elements are met, this violation is S&S. I also find that this was 

a serious violation because it could have caused death or serious injury to the two miners on the 

active working section. 

3. Unwarrantable Failure and Negligence 

Inspector Dudash assessed Little Buck’s negligence as high and designated this violation 

an unwarrantable failure because Neidlinger had been onsite directing the workforce and 

conducting preshift examinations when the area south of the barricade was developed, but when 

he withdrew his men and equipment from the area, he made no efforts to ventilate it. Tr. 114. 

Extensiveness of Violation; Duration; Degree of Danger Posed 

Although only a 40-foot-long area was unventilated, this violation was extensive because 

it affected the entire working section south of the Seven Foot Vein and all of the miners working 

there. In addition, the efforts required to abate the violation were somewhat extensive in that 

Little Buck was required to re-timber the area where the roof had collapsed so that ventilation 

tubing could be extended toward the face of the Middle Split. GX 3; Tr. 202-04. 

At the time of the October 8, 2014 inspection, the examination records indicated that 

Little Buck had discontinued mining in the cited area between September 26 and 30. Thus, this 

violation had existed for more than a week. 

As discussed above in the S&S analysis, this violation posed a danger that bad air would 

develop in the unventilated dead-air space, would accumulate to harmful levels, and would seep 

out across the barricade into areas where miners were actively working, potentially causing death 

or serious injuries. Accordingly, I find that this violation presented a high degree of danger. 

Knowledge of Violation; Obviousness 

Inspector Dudash testified that this violation should have been obvious to Neidlinger 

because he was the preshift examiner and had years of mining experience. Tr. 114-15. “He 

knows that MSHA requires you to ventilate dead end faces, whether it be a[n] intake or a return 

air course,” Dudash stated. Tr. 115. I find that Neidlinger undoubtedly knew of this violation, as 

he was the mine foreman and preshift examiner during the time the cited area was developed and 

directed his men to withdraw without installing a crosscut or any other ventilation controls. Tr. 

170. Neidlinger’s knowledge of the violation is imputable to Little Buck. 

Notice of Need for Greater Compliance Efforts 

There is no evidence that Little Buck received past similar violations or other specific 

warnings from MSHA that would have placed it on notice that greater efforts were necessary for 

compliance with the cited safety standard. 

39 FMSHRC Page 1652
Abatement Efforts 

Despite Little Buck’s knowledge of this violation, no abatement efforts were undertaken 

until after Inspector Dudash issued the order. Again, I do not find the erection of the barricade to 

constitute a mitigating factor because although the barricade prevented miners from traveling 

into the dead-air space, it was not airtight and therefore did not eliminate the hazard that bad air 

would escape and affect miners elsewhere on the active working section. 

 Conclusions 

Based on the factors discussed above, particularly Little Buck’s knowledge of the 

violation and the fact that it posed a high degree of danger, especially when considered in 

conjunction with the other violations present on the date of the inspection (such as failure to 

regularly examine the cited area and failure to maintain a secondary escapeway and a separate 

return airway on the active working section where miners would be affected by bad air seeping 

from the dead-air space), I find that Little Buck exhibited aggravated conduct constituting more 

than ordinary negligence. Accordingly, this violation was an unwarrantable failure to comply 

with the regulation, and Inspector Dudash properly issued the order under section 104(d)(1). 

For the same reasons, I also find that Little Buck’s negligence was high. 

E. Citation Number 8000756 (Air Quality Violation) 

This 104(a) citation was issued on October 22, 2014 and alleges: 

The air, 10 feet inby an entry along the primary intake air course to the 

working section (MMU-001-0), contained 19.4% oxygen and 0.52% 

carbon dioxide according to MSHA laboratories analysis of air samples 5 

gas report (MSIS Batch Date: 10-19-2014). This analysis is the result of a 

bottle sample taken October 08, 2014, after a calibrated permissible multigas detector (Ser. No. A5-146096 & Approval No. 22-A040001-0) 

measured 19.4% oxygen. This entry was approximately 80 feet outby the 

working section’s working face where 2 miners normally worked on a 

daily basis. 

GX 5. 

The standard alleged to have been violated is 30 C.F.R. § 75.321(a)(1), which states in 

pertinent part: “The air in areas where persons work or travel ... shall contain at least 19.5 

percent oxygen and not more than 0.5 percent carbon dioxide, and the volume and velocity of the 

air current in these areas shall be sufficient to dilute, render harmless, and carry away flammable, 

explosive, noxious, and harmful gases, dusts, smoke, and fumes.” MSHA has noted that normal 

air contains about 20.9% oxygen and 0.03% carbon dioxide, while percentages outside the range 

specified in the regulation indicate an air quality problem that needs attention. 57 Fed. Reg. 

20868, 20877 (May 15, 1992). 

 

39 FMSHRC Page 1653
In this case, Inspector Dudash first detected low oxygen when his Solaris multi-gas 

detector alarm went off at 19.4% percent oxygen while he was in the rock tunnel about 10 feet 

south of the barricade at the point where the roof had collapsed, which was as far in as he could 

safely travel at the time. Tr. 69-70, 96, 99-100. Although the gas detector alerts whenever it 

detects 19.5% oxygen or lower, 19.4% was the lowest percentage Dudash observed on the day of 

the inspection. Tr. 96. As previously noted, there were no ventilation controls and no air 

movement in the area south of the barricade where the low oxygen was detected. Tr. 96. 

Consistent with the lack of air movement, Dudash explained that low oxygen usually develops 

when carbon dioxide accumulates in stagnant air, which reduces the proportion of oxygen from 

the normal level of approximately 20.8%. Tr. 70. 

Neidlinger was carrying the same type of multi-gas detector, but his alarm did not go off. 

Tr. 97, 121-22, 175. However, when he asked Inspector Dudash on cross-examination whether a 

calibration issue could have caused the one detector to go off when the other did not, Dudash 

testified that he checks the calibration on his detector every morning and further noted that he 

took an air sample that later confirmed the low oxygen reading. Tr. 122. As previously 

mentioned, he had taken the sample using a vacuum bottle after his detector alarmed. Tr. 97-98. 

He had also taken bottle samples in the Bottom Split gangway and in the rock tunnel 20 feet 

outby the barricade. Tr. 97, 100. After leaving the mine, Dudash submitted all three bottle 

samples to an MSHA laboratory to be evaluated, and the results confirmed that the air sample 

taken 10 feet south of the barricade contained 19.4% oxygen and 0.52% carbon dioxide. Tr. 99, 

122-23; GX 18. The two samples taken elsewhere revealed normal levels of oxygen (20.48% and 

20.68%). Tr. 130; GX 18. 

At hearing, Neidlinger pointed out that the oxygen level was only one tenth of a 

percentage point out of compliance with the 19.5% threshold and that the area where the low 

oxygen was detected “was only 6ʹ by 8ʹ high” and “[a]pproximately just say 35ʹ to the longest 

point.” Tr. 175. Neidlinger suggested that in such a small area, two people breathing for twenty 

minutes could have lowered the oxygen level by a tenth of a percent. Tr. 175. This argument 

disregards the results of the bottle samples taken elsewhere in the mine, which yielded 20.48% 

and 20.68% oxygen. The oxygen level south of the barricade was more than a full percentage 

point lower than this normal level, a discrepancy that is likely too large to attribute to Neidlinger 

and Inspector Dudash being present in the area and breathing. Moreover, two miners regularly 

worked together on the active working section at this mine, meaning that when Little Buck was 

still developing the cited area before it withdrew from the Middle Split and erected the barricade, 

two men would have been working and breathing in this small enclosed space at any given time. 

If the presence of two men were sufficient to reduce the ambient oxygen below the level of 

compliance, this would have indicated an air quality problem which Little Buck should have 

addressed. 

The evidence shows that the oxygen level was 19.4% and the carbon dioxide level was 

0.52% in the area south of the barricade. Although these numbers were only slightly out of 

compliance, I reject Neidlinger’s suggestion that the violation was negligible. MSHA purposely 

imposed the 19.5% and 0.5% thresholds set forth in § 75.321(a)(1). The 19.5% standard for 

oxygen is above that identified as resulting in impaired judgment, but MSHA, mindful of the 

“insidious nature of oxygen deficient air,” intentionally set the standard high in order to protect 

39 FMSHRC Page 1654
miners from losing consciousness before they can escape an area of low oxygen. Jim Walter 

Res., Inc., 29 FMSHRC 212, 223 (Mar. 2007) (ALJ); see also McElroy Coal Co., 30 FMSHRC 

45, 64-65 (Jan. 2008) (ALJ) (discussing MSHA Program Information Bulletin which states that 

oxygen concentrations below 19.5% can have adverse physiological effects); 61 Fed. Reg. 9764, 

9775-77 (Mar. 11, 1996). In addition, contrary to the stated requirements of § 75.321(a)(1), the 

volume and velocity of the air current in the cited area clearly was not sufficient to dilute and 

render harmless any dangerous gases, as there was no air movement in the area. Tr. 96. 

Accordingly, I uphold the violation of § 75.321(a)(1). 

2. S&S and Gravity 

Inspector Dudash marked this violation as S&S and reasonably likely to cause fatal 

injuries to two miners, again citing the potential for carbon dioxide or oxygen deficient air to 

accumulate behind the barrier and escape to the active working section and cause harm to 

miners. GX 5; Tr. 102-03. 

 The first element of the Mathies test for S&S is satisfied because a violation of a 

mandatory safety standard occurred. 

 The second Mathies element is also satisfied because the violation contributed to the 

discrete safety hazard that, if normal mining operations had continued, the condition could have 

worsened, with oxygen deficient air and high levels of carbon dioxide accumulating in the deadair space south of the barrier and leaking out into areas where miners were actively working and 

traveling. This hazard was likely to occur because the barricaded area was not being regularly 

examined, meaning that Little Buck likely would not have noticed the bad air until the condition 

worsened. 

The miners in the rock tunnel north of the barricade were working in 100 feet of air that 

had passed by the dead-end space where the oxygen deficient air was discovered, and there was 

no alternate travelway or escapeway in which they could have sought refuge from bad air, so 

they were likely to be exposed to the hazard. If so, they could be overcome by oxygen deficient 

air, causing loss of consciousness and inability to escape from the area. For the reasons 

previously discussed, the resulting injuries would likely be serious or even fatal. Thus, the third 

and fourth Mathies elements are satisfied. 

 

Because the four Mathies elements are met, this violation is S&S.10 This was a serious 

violation because it could have caused death or serious injury to the two miners on the active 

working section. 

3. Negligence 

Inspector Dudash charged Little Buck with moderate negligence in connection with this 

violation. GX 5. He testified he saw no reason to mark the negligence as high because he had 

 10 Because I have found all five of the violations to be S&S under the Commission’s 

interpretation of the Mathies test, I decline to address the Secretary’s argument in favor of a 

slightly different interpretation. See Sec’y Br. 24-25. 

39 FMSHRC Page 1655
already issued high negligence violations for the root causes of the problem: failure to conduct a 

proper preshift examination and failure to ventilate the dead-end area beyond the barricade. Tr. 

105-06. 

I have found that this was a serious violation that exposed miners to the risk of serious 

injury. The violation resulted from Little Buck’s failure to adequately ventilate the cited area. 

However, the gas levels were only slightly out of compliance, and this was not immediately 

obvious, as evidenced by Dudash postponing the issuance of the citation until he received the 

results of the laboratory analysis of the bottle sample confirming that a violation had occurred. 

There is no evidence as to how long the violative gas levels existed and no indication that 

Neidlinger or any other member of mine management was aware of them before the citation was 

issued. I find that Little Buck’s negligence was moderate. 

VI. PENALTY 

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

Section 110(i) of the Mine Act grants the Commission the authority to 

assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It 

further directs that the Commission, in determining penalty amounts, shall 

consider: 

The operator’s history of previous violations, the appropriateness of such 

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

operator was negligent, the effect on the operator’s ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 U.S.C. § 820(i). 

 The Commission and its ALJs are not bound by the penalties proposed by the Secretary, 

nor are they governed by MSHA’s Part 100 regulations, although substantial deviations from the 

proposed penalties must be explained using the section 110(i) criteria. See Am. Coal Co., 38 

FMSHRC 1987, 1992-93 (Aug. 2016); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). 

In addition to considering the 110(i) criteria, the judge must provide a sufficient factual basis 

upon which the Commission can perform its review function. See Martin Co. Coal Corp., 28 

FMSHRC 247, 266 (May 2006). 

The Secretary asks me to assess penalties of $2,000.00 for each of the section 104(d)(1) 

violations at issue in this docket, which include Citation No. 8000752 and Order Nos. 8000753, 

8000754, and 8000755. This penalty amount is the statutory minimum for 104(d)(1) violations. 

See 30 U.S.C. § 820(a)(3)(A). The Secretary further asks me to assess a penalty of $308.00 for 

the violation alleged in Citation No. 8000756. 

39 FMSHRC Page 1656
The Secretary has submitted a violation history form showing that Little Buck received 

just twelve violations from MSHA that became final during the fifteen months preceding the 

issuance of these violations. GX 14. As discussed in the body of my decision above, this 

included a citation issued on January 22, 2014 for beginning development of the same rock 

tunnel at issue in this case without obtaining the approval of the District Manager. GX 15. 

The size of Little Buck’s business is small. Just two miners regularly work at the mine in 

question, and the parties stipulated that the mine had produced just 5,117 tons of coal as of the 

inspection date. Joint Ex. 1. However, Little Buck has not argued before me that the proposed 

penalties will affect its ability to remain in business nor presented any evidence to that effect. 

My findings regarding the gravity and negligence associated with the violations are 

discussed at length above in the body of my decision. The evidence indicates that Little Buck 

made good faith efforts to achieve rapid compliance after the inspection by extending ventilation 

tubing into the dead-end area south of the Bottom Split, examining the area, promptly submitting 

new plan addenda, and developing a monkey heading and a second rock tunnel to adequately 

ventilate the Bottom Split workings and provide a secondary escapeway. 

After considering the six statutory penalty criteria, I find that the statutory minimum 

penalty of $2,000.00 is appropriate for each of the four 104(d)(1) violations. I also find that a 

penalty of $308.00 is appropriate for Citation No. 8000756. 

ORDER 

Little Buck is hereby ORDERED to pay a total penalty of $8,308.00 for the five 

violations at issue in this docket within thirty (30) days of the date of this Decision and Order.11 

 /s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Ryan Kooi, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, Suite 

630E, 170 South Independence Mall West, Philadelphia, PA 19106-3306 

Edmund C. Neidlinger, Little Buck Coal Company #2, 33 Pine Lane, Pine Grove, PA 17963 

 11 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. 

39 FMSHRC Page 1657
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 

August 15, 2017 

 

DECISION AND ORDER 

REINSTATING BENJAMIN LEADMON 

REINSTATING FRANKLIN JEREMIAH GIBSON 

Appearances: Kathleen F. Borschow, Esq., Office of the Solicitor, U.S. Department of Labor, 

 Arlington, VA, Representing the Secretary of Labor 

 Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

 Lexington, KY, Representing Respondent 

 Todd C. Meyers, Esq., Blackhawk Mining, LLC, Lexington, KY, Representing 

 Respondent 

Before: Judge Steele 

On July 19, 2017, pursuant to section 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977 (“Act”), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor 

(“Secretary”) filed an Application for Temporary Reinstatement of miner Benjamin Leadmon 

(“Leadmon”) to his former position with Blue Creek Mining, LLC, (“Blue Creek” or 

“Respondent”) at Blue Creek No. 1 Underground Mine (“Blue Creek Number 1”) pending final 

hearing and disposition of the case. On July 19, 2017, the Secretary of Labor also filed an 

Application for Temporary reinstatement of miner Franklin Jeremiah Gibson (“Gibson”) to his 

former position with Blue Creek at Blue Creek No. 1 pending final hearing and disposition of the 

case. 

The applications followed two separate Discrimination Complaints filed by Leadmon and 

Gibson on June 20, 2017, that alleged, in effect, their terminations were motivated by their 

protected activities. The Secretary represents that these Complaints were not frivolously brought 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of BENJAMIN LEADMON, 

 and FRANKLIN JEREMIAH GIBSON, 

 Complainants, 

 v. 

BLUE CREEK MINING, LLC, 

 Respondents. 

 TEMPORARY REINSTATEMENT 

PROCEEDINGS 

Docket No. WEVA 2017-498-D 

MSHA Case No.: HOPE-CD-2017-04 

Docket No. WEVA 2017-499-D 

MSHA Case No.: HOPE-CD-2017-05 

Mine: Blue Creek No. 1 Underground Mine 

Mine ID: 46-09297 

39 FMSHRC Page 1658
and requests an Order directing Respondent to reinstate Leadmon and Gibson to their former 

positions with the same rate of pay and benefits they received prior to their discharge. 

Respondent requested hearings regarding these applications on July 31, 2017. On July 31, 

2017, an Uncontested Motion To Consolidate Docket Nos. WEVA 2017-499-D and WEVA 

2017-498-D was filed by the Secretary. The Motion to Consolidate was granted by the 

undersigned on August 3, 2017. 

A hearing was held in South Charleston, WV on August 8, 2017, where the Secretary and 

Respondent each had the opportunity to present witnesses and documentary evidence in support 

of their positions.1 

For the reasons set forth below, I grant the applications and order Blue Creek to 

temporarily reinstate Benjamin Leadmon and Franklin Jeremiah Gibson. 

I. DISCUSSION OF RELEVANT LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners “to play 

an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and

Health Act of 1977, at 623 (1978). 

Congress created the temporary reinstatement as “an essential protection for complaining 

miners who may not be in the financial position to suffer even a short period of unemployment 

or reduced income pending the resolution of the discrimination complaint.” Id. at 624-25.

 Temporary Reinstatement is a preliminary proceeding and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

substantial evidence standard applies.2 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining “whether the evidence mustered by the miners to date established that

their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.” Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990). 

 1

 Under Commission Rule 45, a Temporary Reinstatement hearing must be held within 

10 calendar days of an operator’s request. 29 C.F.R. §2700.45(c). 

2

 “Substantial evidence” means “such relevant evidence as a reliable mind might accept 

as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

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

39 FMSHRC Page 1659
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress’ “appears to have merit” standard, the Commission and federal circuit 

courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not 

insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that 

establishing ‘reasonable cause to believe’ that a violation of the statute has occurred is a 

‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 

2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 

250 F.3d 962, 969 (6th Cir. 2001). 

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that there 

was an adverse action, which was motivated in any part by that 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 (April 1981). 

In the instant matter, the Secretary need not prove a prima facie case of discrimination 

with all of the elements required at the higher evidentiary standard needed for a decision on the 

merits. Rather, the same analytical framework is followed within the “reasonable cause to 

believe” standard. Thus, there must be “substantial evidence” of both the applicant’s protected 

activity and a nexus between the protected activity and the alleged discrimination. To establish 

the nexus, the Commission has identified these indications of discriminatory intent: (1) hostility 

or animus toward the protected activity; (2) knowledge of the protected activity; and (3) 

coincidence in time between the protected activity and the adverse action. Sec’y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has acknowledged that it is often difficult to establish a “motivational nexus 

between protected activity and the adverse action that is the subject of the complaint.” Sec’y of 

Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The 

Commission has further considered disparate treatment of the miner in analyzing the nexus 

requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

 

39 FMSHRC Page 1660
II. THE PETITIONS FOR TEMPORARY REINSTATEMENT 

Benjamin Leadmon 

 

 On June 6, 2017, Leadmon executed a Summary of Discriminatory Action, which was 

filed with his Discrimination Complaint. In this statement he alleged the following: 

Wrongfully terminated after making safety complaints. I would like to have my 

regular job back with back pay and benefits. 

Application for Temporary Reinstatement at Exhibit B, p. 2. 

The Secretary also submitted with the Application the July 19, 2017, Affidavit of Perry 

Brown, a Special Investigator employed by the Mine Safety and Health Administration 

(“MSHA”). Brown made the following findings and conclusions: 

2. As part of my official responsibilities, I investigate claims of discrimination 

filed by miners pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977 (the "Mine Act"). In this capacity I have investigated the 

discrimination claim filed by Benjamin Leadmon on June 20, 2017. My 

investigation to date has revealed the following facts: 

A. At all relevant times, Blue Creek Mining, LLC, (the "Operator" or 

"Blue Creek") is a "person" as defined in § 3(f) of the Mine Act. 

B. The applicant, Benjamin Leadmon, was employed by the Operator to 

work as a roof bolting machine operator at the Blue Creek No. 1

Underground Mine and was therefore a "miner" within the meaning of § 

3(g) of the Mine Act. 

C. Leadmon was employed at the mine for approximately 6 years until 

May 25, 2017. 

D. Richard "Red" Hensley was Leadmon's partner on the bolting machine 

for a couple of months. Jeremy Gibson worked on the same crew as a 

continuous mining machine operator. Bill Vanover was their section boss. 

E. Leadmon told me of several unsafe incidents he experienced at the 

mine, including that his crew once cut into the intake airway in violation 

of the mine's approved ventilation plan, allowing dust to come back over 

the miner operator; that Vanover told Gibson to cut into unsupported top 

in violation of 30 C.F.R. § 75.203(d); and that the crew was expected to 

bolt down wind of the mining machine in the dust more times than the 

ventilation plan allowed. 

39 FMSHRC Page 1661
F. Leadmon also told me that on one occasion, after telling Vanover his 

Continuous Personal Dust Monitor was at 98% of the allowable limit, 

Vanover instructed him to take it to the intake airway and sent someone 

else to man the bolter in his place. Leadmon believed he would have been 

fired had he not done as he was told. 

G. Leadmon told me that he, Gibson, and Hensley complained to mine 

management about the above events and their safety concerns on May 23, 

2017. Leadmon gave Superintendent Mike Dotson a written list of the 

above events and safety concerns that Gibson had begun recording 

approximately one month prior. Dotson said he was concerned and

informed Assistant General Manager Jamie Wiant of their complaints. 

That same day, the three miners each met individually with Dotson, 

Wiant, Safety Manager Josh Bell, Mine Foreman Nike Nichols, and

Maintenance Manager Jason Dooley. Leadmon told them each about his 

concerns. 

H. Leadmon told me that believes he did the right thing by informing mine 

management of his safety concerns, and felt that mine management would 

no longer force him to work in the dust so much. He believes, however, 

that he was discharged for making these safety complaints. 

3. There is reasonable cause to find that the Complainant was discharged because 

he engaged in protected activity. Leadmon engaged in protected activity when he 

complained to mine management about various safety concerns at the mine. 

Leadmon suffered an adverse action when he was suspended on May 23, 2017 

and ultimately discharged two days later on May 25. 

4. Based on my investigation to this date and based upon the proximity in time 

between the protected activity and the adverse action and the operator's 

knowledge of the protected activity, I have concluded that there is reasonable 

cause to believe that Leadmon was discharged because he engaged in protected 

activities by complaining about unsafe practices at the mine. I have concluded 

that the complaint filed by Leadmon was not frivolous. 

Application for Temporary Reinstatement at Exhibit A, p. 1-3. The Secretary cited this affidavit 

as a basis for the formal request for temporary reinstatement. Application for Temporary 

Reinstatement at 2. 

 

39 FMSHRC Page 1662
Franklin Jeremiah Gibson 

 

 On June 6, 2017, Gibson executed a Summary of Discriminatory Action, which was filed 

with his Discrimination Complaint. In this statement he alleged the following: 

I was wrongfully terminated after making safety complaints. I would like to have 

my regular job back with back pay and benefits. 

Application for Temporary Reinstatement at Exhibit B, p. 2. 

The Secretary also submitted with the Application the July 19, 2017, Affidavit of Perry 

Brown, a Special Investigator employed by MSHA. Brown made the following findings and 

conclusions: 

2. As part of my official responsibilities, I investigate claims of discrimination 

filed by miners pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977 (the "Mine Act"). In this capacity I have investigated the 

discrimination claim filed by Franklin Jeremiah Gibson on June 20, 2017. My 

investigation to date has revealed the following facts: 

A. At all relevant times, Blue Creek Mining, LLC, (the "Operator" or 

"Blue Creek") is a "person" as defined in § 3(f) of the Mine Act.

B. The applicant, Franklin Jeremiah Gibson, was employed by the 

Operator to work as a continuous miner operator at the Blue Creek No. 1 

Underground Mine and was therefore a "miner" within the meaning of § 

3(g) of the Mine Act.

C. Gibson was employed at the mine for approximately ten months until 

May 25, 2017.

D. Richard "Red" Hensley and Benjamin Leadmon worked on the same 

crew as Gibson for a couple of months. Bill Vanover was their section 

boss. 

E. Gibson told me of several unsafe incidents he experienced at the mine, 

including that his crew once cut into the intake airway in violation of the 

mine’s approved ventilation plan, allowing dust to come back over the 

miner operator; that Vanover told him to cut into unsupported top in 

violation of the 30 C.F.R. § 75.203(d); and that the crew was expected to 

bolt down wind of the mining machine in the dust more times than the 

ventilation plan allowed. 

F. Gibson also told me that on one occasion, he questioned Vanover’s 

instruction to take deep cuts into the intake air, and Vanover cursed at him 

39 FMSHRC Page 1663
and told him to do as he was instructed. Gibson believed he would have 

been fired had he not done as he was told. 

G. Gibson told me that he, Leadmon, and Hensley complained to 

Superintendent Mike Dotson about the above events and their safety 

concerns on May 23, 2017. Leadmon gave Superintendent Mike Dotson a 

written list of the above events and safety concerns that Gibson had begun 

recording approximately one month prior. Dotson said he was concerned 

and informed Assistant General Manager Jamie Wiant of their complaints. 

That same day, the three miners each met individually with Dotson, 

Wiant, Safety Manager Josh Bell, Mine Foreman Nike Nichols, and 

Maintenance Manager Jason Dooley. Gibson told them each about his 

concerns.

H. Gibson told me that believes he did the right thing by informing mine 

management of his safety concerns. He believes, however, that he was 

discharged for making these safety complaints. 

3. There is reasonable cause to find that the Complainant was discharged because 

he engaged in protected activity. Gibson engaged in protected activity when he 

complained to mine management about various safety concerns at the mine. 

Gibson suffered an adverse action when he was suspended on May 23, 2917 and 

ultimately discharged two days later on May 25.

4. Based on my investigation to this date and based upon the proximity in time 

between the protected activity and the adverse action and the operator's 

knowledge of the protected activity, I have concluded that there is reasonable 

cause to find that Gibson was discharged because he engaged in protected 

activities by complaining about unsafe practices at the mine. I have concluded 

that the complaint filed by Gibson was not frivolous. 

Application for Temporary Reinstatement at Exhibit A, p. 1-3. The Secretary cited this affidavit 

as a basis for the formal request for temporary reinstatement. Application for Temporary 

Reinstatement at 2. 

III JOINT STIPULATIONS3

1. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to 

Sections 105 and 113 of the Federal Mine Safety and Health Act of 1977 (“the Act”). 

 3 The Joint Stipulations were entered at hearing and admitted into the record as Joint 

Exhibit 1. (Tr. 11-12). Each Joint Stipulation will hereinafter be cited to as J.S. followed by its 

number.

39 FMSHRC Page 1664
2. Blue Creek Mining, LLC (“Blue Creek”) is a wholly owned subsidiary of Blackhawk 

Mining, LLC. 

3. Blue Creek Mining, LLC operates the Blue Creek #1 Mine in Kanawha County, 

West Virginia. 

4. The products or operations of the Blue Creek #1 Mine enter or affect commerce, 

within the meaning and scope of Section 4 of the Act. 

5. The Blue Creek #1 is a mine as that term is defined in 30 U.S.C. 802(h). 

6. Blue Creek is an “operator” as defined in Section 3(d) of the Act at the Blue Creek 

#1 Mine. 

7. Operations of Blue Creek at the Blue Creek #1 Mine are subject to the jurisdiction of 

the Act. 

8. Blue Creek is a “person” within the meaning of § 105(c) and within the definition of 

§ (f) of the Act. 30 U.S.C. 802(f). 

9. Prior to May 25, 2017, Complainant Benjamin Leadmon was employed as a Roof 

Bolting Machine Operator at the Blue Creek #1 Mine, and, therefore, was a “miner” 

within the meaning of § 3(g) of the Act. 30 U.S.C. § 802(g). 

10. Prior to May 25, 2017, Complainant Franklin Jeremiah Gibson was employed as a 

Continuous Mining Machine Operator at the Blue Creek #1 Mine, and, therefore, 

was a “miner” within the meaning of § 3(g) of the Act. 30 U.S.C. § 802(g). 

11. Complainant Gibson was employed by Blue Creek for approximately ten months 

until May 25, 2017. 

12. On May 25, 2017, Blue Creek terminated the employment of Complainants 

Leadmon and Gibson. 

13. Between May 23 and 25, 2017, Richard Hensley was employed by Blue Creek as a 

Roof Bolt Machine Operator in the Blue Creek #1 Mine. 

14. Between May 23 and 25, 2017, Jamie Wiant was employed by Blue Creek as the 

Operations Manager. 

15. Between May 23 and 25, 2017, Josh Bell was employed by Blue Creek as the Safety 

Manager. 

16. Between May 23 and 25, 2017, Charles Childers was employed by Blue Creek as the 

General Manager. 

39 FMSHRC Page 1665
17. Between May 23 and 25, 2017, Jason Dooley was employed by Blue Creek as the 

Maintenance Manager. 

18. Between May 23 and 25, 2017, Bill Simon was employed by Blue Creek as the 

Evening Shift Mine Foreman. 

19. Between May 23 and 25, 2017, Mike Dotson was employed by Blue Creek as the 

Superintendent of the Blue Creek #1 Mine. 

20. Between May 23 and 25, 2017, Mike Nichols was employed by Blue Creek as the 

Mine Foreman at the Blue Creek #1 Mine. 

21. Prior to his discharge on May 23, 2017, Bill Vanover was employed by Blue Creek 

as the Section Boss on the #4 Mains Section of the Blue Creek #1 Mine. 

22. On May 23, 2017, Blue Creek terminated the employment of Mr. Vanover. 

IV. SUMMARY OF TESTIMONY

Franklin Jeremiah Gibson was a continuous miner operator at Blue Creek Number 1 

Underground Mine. (Tr. 28-29). Blue Creek Mining, LLC, a subsidiary of Blackhawk Mining, 

LLC, operates Blue Creek Number 1. (J.S. 2,3). Gibson worked at Blue Creek for approximately 

10 months.4

 (Tr. 28-29). 

At Blue Creek, Gibson worked as a continuous miner first at the eight section, then the 

four main section. (Tr. 34). At the four main section, he worked dayshift at the time of his 

discharge. (Tr. 34). 

Gibson never had any disciplinary action taken against him at previous mining jobs until 

he worked at Blue Creek Number 1. (Tr. 32). At Blue Creek Number 1, Gibson was suspended 

for leaving a dust pump hanging underground. (Tr. 32-33). He was suspended for five days. (Tr. 

33-34). 

Benjamin Leadmon was a roof bolt operator at Blue Creek Number 1 Mine. (Tr. 97). He 

worked at Blue Creek Number 1 for 17 months while Black Hawk owned it and five years before 

that when Patriot owned the mine.5

 (Tr. 97). Leadmon and Richard (“Red”) Hensley were roof 

bolters for the four main section. (Tr. 37, 102). 

Leadmon has had only one previous disciplinary action at Blue Creek of a written 

warning for five excused absences approximately 18 months ago. (Tr. 99). 

 4

 Gibson has worked as a miner for nine and a half years for several mining companies 

including Murray Energy, Speed, Yellow Bush, and Campbell’s Creek Number 7. (Tr. 30-32). 

5

 Leadmon worked at Mammoth Coal for Massey for two years as a roof bolter and 

supply loader before working at Patriot. (Tr. 98). 

39 FMSHRC Page 1666
Gibson and Leadmon’s direct supervisor at the four main section was Bill Vanover, the 

section foreman. (Tr. 34, 85, 100). Gibson testified that Vanover was his supervisor for only 

three or four weeks. (Tr. 35). Gibson testified that Vanover was the worst boss he ever had 

because Vanover would order Gibson to work in unsafe, illegal conditions. (Tr. 35). Leadmon 

also testified that Vanover made miners take illegal actions because Vanover only cared about 

“the numbers.” (Tr. 101). 

On May 4, 2017, Gibson testified that his crew was cutting the four right section, where 

“the scrubber” was down. (Tr. 35). Gibson told Vanover that the airflow needed to be switched 

around because it was moving in the wrong direction. (Tr. 35). Vanover ultimately said that 

nothing could be done about the unsafe air intake situation as the crew was too far behind in 

production. (Tr. 36). When the evening shift foreman Bill Simon arrived, Gibson testified that he 

told Simon that they needed to “flop the air.” (Tr. 36). Simon just looked at Gibson and walked 

away “through the flop air” to speak with Vanover. (Tr. 36). Vanover and Simon spoke, and 

Vanover said again that the crew was too far behind to “shut it down and flop the air.” (Tr. 36). 

On May 11, 2017, Gibson testified that he was supposed to cut the number four heading 

at the start time. (Tr. 36). The roof bolter was in three right, so Gibson was sitting, after 

completing his “dust printers and everything.” (Tr. 36). Vanover came to Gibson and told him to 

begin “loading” because the bolting was almost finished in the three right section.6

 (Tr. 36). 

Gibson replied that he would not start “loading” until the bolting was finished. (Tr. 36). Vanover 

told Gibson to “go ahead,” and Gibson again said no. (Tr. 36). Vanover then went to check how 

much bolting was left, and after he returned, said that the bolters were backing out, so Gibson 

should start loading. (Tr. 37). Gibson then went about 15 feet on one side cut before the bolter 

Richard Hensley came over and said the area in front of Gibson was not bolted. (Tr. 37). Gibson 

then backed up and told Vanover that he was not going to cut into the unsupported area. (Tr. 37). 

Vanover then replied “You F-ing cut into it now.” (Tr. 37). Benjamin Leadmon was standing 

with Hensley at that time, so Gibson looked over at them and cut into the area Vanover 

requested. (Tr. 37). 

Leadmon also testified, in reference to the May 11, 2017, incident, that Vanover had 

Leadmon and Hensley stop bolting the four right section and back out so that Gibson could cut 

into the unsupported top. (Tr. 102). Leadmon testified that he objected to this request but 

Vanover said “you will do it” and “made [Leadmon and Hensley] back out.” (Tr. 102). 

On another occasion in May, Gibson testified that the continuous miner had “nine inserts 

crack that would not hold bits... [f]our bits stuck and one lug tore off.” (Tr. 37-38). Gibson 

testified that more than one insert or lug cannot be missing for more than 24 hours. (Tr. 37). 

Gibson testified that he repeatedly asked Vanover to fix the cracks, and Vanover told Gibson 

“no, you’ll run it” and that “[h]oot owl will fix it.”7

 (Tr. 38). Gibson also asked the evening shift 

 6

 It appears that “loading” refers to cutting into the coal with the continuous miner 

machine. See (Tr. 37). 

7

 It is not clear to this Court from the testimony who or what “hoot owl” was, although 

the term has colloquially been known to refer to the night shift. 

39 FMSHRC Page 1667
electrician to fix the cracks, and was told again that “hoot owl” will fix it. (Tr. 38). Then Gibson 

asked Hensley to request that Vanover fix the issue because Gibson was tired of asking Vanover 

to shut down the continuous miner machine. (Tr. 38). Again, Gibson was told to keep running 

the machine and that “hoot owl” would fix it. (Tr. 38). 

These three occasions of cutting into an unsupported top, cutting into the intake air, and 

running the miner with an improper amount of lugs and bits are the unsafe incidents Gibson 

remembered at hearing. (Tr. 38). Gibson testified that he first said no to Vanover when ordered 

to complete these unsafe actions, but completed them anyway because he was afraid he would 

have been fired if he had not followed orders.8 (Tr. 39). 

Leadmon testified that Jamie Wiant, the operations manager, Tony Sparks, the safety 

director, and Mike Dotson, the superintendent, said on multiple occasions to follow supervisors’ 

orders, implying that disciplinary action would be taken if you did not follow work orders. (Tr. 

102-03). 

Gibson testified that he began taking notes of these unsafe incidents because he heard 

from many miners, including Ernie Butcher, the fill-in boss and Darryl Messer, a continuous 

miner operator, after returning from his first suspension that Wiant was trying to fire Gibson. (Tr. 

39-40). Gibson copied his notes summarizing the unsafe work orders he was given, which were 

admitted as Government Exhibit 1.9

 (Tr. 41). Gibson said the notes summarize that on May 11, 

2017, Vanover ordered Gibson to cut into an unsupported top. (Tr. 41). Also, the notes 

documented that Gibson was ordered to cut into the intake air on May 4, 2017, which Gibson 

believes resulted in his lungs hurting and his bronchitis diagnosis.10 (Tr. 41). On May 5-6, 2017, 

Gibson was not at work but recorded in his notes that Vanover again asked another miner, Josh, 

a “buggy man,” who filled in for Gibson, to cut into the air intake. (Tr. 41). 

Leadmon testified that Vanover would also have the roof bolters bolt more than one cut 

each shift in the dust, which is illegal. (Tr. 101). 

Leadmon further testified that Vanover told Leadmon to take a personal dust monitor, 

(“PDM”), to the air intake. (Tr. 84, 101). Leadmon testified that he told Vanover his PDM 

 8

 Vanover never specifically told Gibson he would be fired for not cutting into the 

unsupported top or intake air. (Tr. 52-53). However, it was Vanover’s insistence that Gibson 

complete unsafe work orders, which led Gibson to believe his job was at risk. (Tr. 37-39). 

9

 Government Exhibits will hereinafter be cited to as GX followed by its number, Joint 

Exhibits will be cited to as JX followed by its number and Respondents Exhibits will be cited to 

as RX followed by its number. 

10 Gibson testified that he was out of work on May 5-6, 2017, because he had to go to the 

doctor for lung pain that resulted from cutting into the air intake, “half through the sand rock.” 

(Tr. 41). He had bronchitis and “something else” that he was certain resulted from breathing in 

dust during the aforementioned incident. (Tr. 41). 

39 FMSHRC Page 1668
monitor was at 98%. (Tr. 104). Vanover then told Leadmon to take his PDM over to the air 

intake. (Tr. 104). Leadmon testified that he did not know it was illegal, but he knew that Vanover 

instructed him to take the PDM to the air intake for a fresh air sample. (Tr. 104). 

Wiant testified at hearing that he first became aware of safety infractions from Levi 

Stevens (“Cody”), a scoop operator, who gave his two weeks’ notice on May 22, 2017. (Tr. 68-

69). Gibson also testified that he heard from Levi Stevens that Stevens was going to inform 

management of the unsafe working conditions in the four main section. (Tr. 55). Stevens told 

Dotson about miners making deep cuts and cutting into unsupported top. (Tr. 69). Wiant testified 

that taking a deep cut in a crosscut that is not bolted puts miners at risk for a cave-in from the 

roof or ribs. (Tr. 74). Wiant testified that Dotson went underground on May 22, 2017, but did not 

observe any safety infractions. (Tr. 71). That evening Dotson called Wiant to inform him of the 

situation, and Wiant told Dotson he would be in the office the next day. (Tr. 71). 

On May 23, 2017, Gibson made a copy of his notes with safety complaints and gave it to 

Leadmon, because they were going to bring the notes to Mike Dotson, the superintendent. (Tr. 

42). Gibson testified that Leadmon brought the notes to Dotson, who took the notes and went 

back into his office.11 (Tr. 42). It did not appear to Gibson that anything was “going on,” so he 

went with Leadmon and Hensley to speak with Dotson about the unsafe working conditions. (Tr. 

43). Leadmon testified that he, Hensley, and Gibson went to give Gibson’s note to Dotson on 

May 23, 2017, because they listed the most serious infractions that they believed could hurt or 

kill someone. (Tr. 108-09). Dotson told them that he was sorry any of these things happened and 

 11 Wiant testified at hearing for Respondent. Wiant is currently employed at Blue Creek 

as the operations manager and was operations manager on May 22-25, 2017. (Tr. 63). As 

operations manager, he oversees the safety, compliance, health, and production in three 

underground deep mines, including Blue Creek Number 1. (Tr. 63). His duties include 

disciplining and terminating miners. (Tr. 64). He has worked at Blue Creek for approximately 

one year. (Tr. 64). He was an Equipment Operator from 2000 to 2003, which included working 

with a continuous miner machine. (Tr. 64). Since 2003 Wiant has worked in management. (Tr. 

65). Wiant received his foreman’s papers in 2003 and his mine foreman’s card in 2005. (Tr. 65). 

He became a mine foreman at that time. (Tr. 65). In 2007, Wiant became a mine superintendent 

until 2012. (Tr. 65). In 2012, Wiant worked for Patriot. (Tr. 65). Prior to working for Patriot, he 

worked for Massey and Alton. (Tr. 65). He has a miner’s red card, foreman card, EMT card, 

shop foreman’s card, and underground instructor card.” (Tr. 65). 

Wiant testified as to the events on May 23, 2017. (Tr. 71-72). As this testimony conflicts 

with that of Leadmon and Gibson, it is noted only for the record, as credibility determinations 

will not be made concerning these Temporary Reinstatement proceedings. Wiant testified that on 

May 23, 2017, Dotson was in his office and saw Leadmon, who Dotson asked to come into the 

office and speak with him. (Tr. 71). Dotson first questioned Leadmon and no safety accusations 

arose. (Tr. 72). However, during a second questioning, where Dotson again approached 

Leadmon, Leadmon stated the same infractions as Levi Stevens for deep cuts, cutting into the 

unsupported top, intake air, and also falsifying a PDM dust sample by taking it down the air 

intake. (Tr. 72). 

39 FMSHRC Page 1669
that they should not have been asked to do the unsafe work. (Tr. 43). Dotson told them that he 

would “take care of it.” (Tr. 43). 

After, there was a safety meeting that morning on May 23, 2017. (Tr. 43). Following the 

meeting, the four main section was asked to remain. (Tr. 43). Each person was taken into the 

office and questioned about any safety concerns in the four main section. (Tr. 43). Wiant testified 

that nine individuals were questioned from the four main section. (Tr. 81). When Gibson was 

called into the office, he told management that his boss had him cut into unsupported top and 

into intake air that wasn’t “flopped.” (Tr. 44). Gibson testified that management said they 

appreciated him telling the truth and that “the truth will set you free.” (Tr. 44). Gibson left the 

meeting with a feeling that management really listened and was going to do the right thing. (Tr. 

44). Gibson believed the right thing was to give section four a different supervisor because he 

believed Vanover, the current supervisor, was going to “get someone killed.”12 (Tr. 44-45). 

Leadmon also testified that he told mine management about the unsafe work orders on 

May 23, 2017, during his individual meeting. (Tr. 107-08). Leadmon testified that he did not say 

anything earlier because he was afraid he would be terminated. (Tr. 108). When Leadmon met 

with management individually, he told Dotson about the deep cut, and cutting into the 

unsupported top, as well as taking a PDM to the air intake for a sample while roof bolting. (Tr. 

110). Leadmon told Dotson about the PDM sample because he thought someone was bolting 

when that occurred, not because he thought it was illegal. (Tr. 110). 

Wiant testified that Ron Bennett, in the four main section made a safety related work 

refusal to haul any of the cuts because a shuttle car was supposed to do that work. (Tr. 87-88). 

Wiant testified that Bennett was not disciplined by Vanover or anyone else in management (Tr. 

87). Wiant also testified that all of the other miners from the four main section raised the same 

safety infractions as Leadmon and Gibson during these individual meetings. (Tr. 87-88). Wiant 

testified that these other miners were not disciplined. (Tr. 88). 

After the individual meetings for the four main section on May 23, 2017, Gibson was told 

to wait with the other miners and not to talk to anybody. (Tr. 45). He stood outside until 

approximately 12:30 p.m. when he was called into the office. (Tr. 45). Wiant, the operations 

manager, Dotson, the superintendent, Mike Nichols, the dayshift mine foreman, Bell, the safety 

director, and Dooley, the chief electrician were in the meeting. (Tr. 114-15). At this meeting, 

management told Gibson he was suspended. (Tr. 46). Gibson testified he was told he could sign 

a document stating that he cut into the air intake and unsupported top, then leave work. (Tr. 46). 

Gibson said at this second individual meeting that Vanover made him do this unsafe work. (Tr. 

46). Management asked if Vanover held a gun to Gibson’s head, to which Gibson replied no. (Tr. 

46). Management said Gibson had the keys to the continuous miner machine and did not have to 

do that work, and it was Gibson’s fault. (Tr. 46). However, Wiant testified that Gibson said he 

questioned Vanover’s work orders when told to cut into the unsupported top and air intake. (Tr. 

 12 Two months prior to this meeting Vanover was removed from his position as a boss 

and Gibson testified that Wiant said Vanover “would never boss again at this mine as long as I’m 

here.” (Tr. 45). 

39 FMSHRC Page 1670
91). Gibson then signed this document and left. (Tr. 46). Gibson believed that management 

would fire Vanover and bring Gibson back to work in two or three days. (Tr. 46-47). 

At approximately 1 p.m. on May 23, 2017, Leadmon was called into the office, where 

management told Leadmon that he would be suspended for five days for falsifying a PDM 

sample. (Tr. 115). Leadmon felt he was not in the wrong because he was following a direct 

order, and he did not know it was illegal at the time. (Tr. 115-16). Leadmon signed a written 

warning for falsifying a PDM sample and then Leadmon left. (Tr. 116). On Friday, May 25, 

2017, two days after the suspension, Wiant, Samantha Owens, from human resources, and Chuck 

Childers, the mine operator called Leadmon on the phone. (Tr. 47, 116). Owens told Leadmon he 

was fired for falsifying a PDM sample. (Tr. 47, 116) 

On May 25, 2017, Gibson testified that he also received a phone call from Samantha 

Owens, who said Chuck Childers, and Jamie Wiant, were on the phone call too.(Tr. 47). During 

this phone call, Owens told Gibson that he was terminated. (Tr. 47-48). 

Owens called Gibson back approximately one hour later and asked if Gibson had 

anything to turn in. (Tr. 48). At that time, Gibson asked why he was being terminated. (Tr. 48). 

Owens said it was because Gibson willingly, knowingly cut into the air intake and unsupported 

top. (Tr. 48). 

 

Wiant testified that Gibson was discharged on May 25, 2017, for putting the safety of 

other miners at risk by cutting into an unsupported top, taking deep cuts, and prior incidents. (Tr. 

66). Gibson’s Termination Form indicates involuntary termination, which Wiant testified was for 

safety infractions May 4-22, 2017. (Tr. 67; RX-1). Wiant further testified that Leadmon was 

terminated that same day for falsify a PDM sample and not notifying management. (Tr. 130). 

Wiant testified that Vanover was also terminated for not making sure the miners under 

his supervision were following safety requirements and for not bringing “accusations” to upper 

management. (Tr. 85-86). 

V. CONTENTIONS OF THE PARTIES 

 

 Gibson and Leadmon argue that they have met their burden of establishing that their 

complaints are non-frivolous, and as a result they should be temporarily reinstated. Gibson 

highlighted his protected activities of making safety complaints and providing a copy of his notes 

with safety complaints on May 23, 2017, to management as well as making safety complaints to 

Vanover when he was given unsafe work orders. Gibson argues that his suspension on May 23, 

2017, and termination on May 25, 2017, are adverse actions under the Act for which Respondent 

is liable. Further, Gibson argues that there was knowledge and a coincidence in time between the 

protected activities and the adverse actions. 

 Leadmon also argued that he made safety complaints by bringing Gibson’s notes with 

safety complaints to management and that Leadmon verbally made safety complaints to 

management in multiple meetings on May 23, 2017. Leadmon argues that his suspension and 

39 FMSHRC Page 1671
termination were adverse actions under the act. Further, Leadmon argues that there was 

knowledge and a coincidence in time between the protected activities and adverse actions. 

 Respondent argues that both Gibson and Leadmon did not make protected work refusals, 

and that the safety complaints made were in response to disciplinary proceedings. Respondent 

argues that Gibson and Leadmon were terminated for violating safety regulations. 

VI. FINDINGS AND CONCLUSIONS 

The scope of this proceeding is narrow. Credibility determinations are not made; conflicts 

in testimony are not resolved. It is well recognized by the Courts that the Secretary’s burden is 

“relatively insubstantial.” For example, beyond the scope of the hearing is testimony and/or 

documentary evidence that the adverse action was justified by unprotected activity alone or was 

also motivated by unprotected activity or other non-discriminatory grounds. For the reasons set 

forth below, I find that the record presents a reasonable cause to believe the instant 

Discrimination Complaints were not frivolously brought. 

 

 Gibson and Leadmon’s discrimination complaints and the adverse actions taken against 

them coincide factually. Thus, this Court will address Gibson’s and Leadmon’s claims together. 

 A. Gibson and Leadmon Engaged in Protected Activity 

 

The record contains several actions that constituted protected activity. First, Gibson 

testified that on May 4, 2017, he told his supervisor, Vanover, when they were cutting with the 

continuous miner machine, that the airflow needed to be “flopped” for safety. (Tr. 35-36). 

Vanover refused to “flop” the airflow because production was running behind. (Tr. 35-36). Next, 

on May 11, 2017, Gibson told Vanover that Gibson did not want to use the continuous miner 

machine in the number four heading because it was unsafe due to the area not being properly 

bolted. (Tr. 36-37). Then, on May 23, 2017, Gibson engaged in protected activity when he 

copied his notes listing unsafe work orders given by Vanover and gave them to Leadmon, who 

brought the notes to Dotson, the superintendent. (Tr. 42). Gibson further engaged in protected 

activity by making safety complaints to Dotson and the other members of management, Wiant, 

the operations manager, Nichols, the dayshift mine foreman, and Bell, the safety director, in the 

two meetings that occurred on May 23, 2017 concerning the four main section, such as cutting 

into the air intake and cutting into an unsupported roof with the continuous miner machine. (Tr. 

43-46). 

 

Leadmon engaged in the same protected activity on May 23, 2017. (Tr. 107-10) Leadmon 

took the note with safety complaints that was copied by Gibson and brought them to Dotson. (Tr. 

107-08) This alone is protected activity. Then, in the following meeting Leadmon had with 

Gibson, Hensley, and Dotson, the three miners made safety complaints involving Vanover. (Tr. 

108-09). These safety complaints included cutting into the air intake and cutting into an 

unsupported top that was not roof bolted. (Tr. 109-10). Leadmon also complained in his 

individual meeting with management, Wiant, Nichols, Dotson, and Bell that Leadmon was given 

a work order to take his PDM, which was supposed to remain with him while roof bolting, to the 

air intake for a sample. (Tr. 110). 

39 FMSHRC Page 1672
 There was some dispute by Respondent as to the motivation for the safety complaints 

made by Gibson and Leadmon. (Tr. 76-77). Respondent argues that the safety complaints were 

made in response to disciplinary proceedings. (Tr. 76-77). However, this Court cannot resolve 

conflicts in testimony in the context of a Temporary Reinstatement. Sec’y of Labor on behalf of 

Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). Therefore, this Court finds 

Gibson and Leadmon presented substantial evidence that they engaged in protected activity. 

 

B. Gibson and Leadmon Suffered Adverse Employment Actions 

 

There is clear adverse employment action for both Gibson and Leadmon who were 

suspended on May 23, 2017, after their individual meetings with management. (Tr. 45-46, 115). 

Gibson and Leadmon were also discharged over the phone on May 25, 2017, by Owens, Wiant, 

and Childers. (Tr. 47-48, 116). These adverse actions are not in dispute by either party. (Tr. 47-

48, 83, 116, 134; RX-1, 3). 

C. A Nexus Existed Between the Protected Activity and the Adverse 

Employment Action 

 

The Commission recognizes that direct proof of discriminatory intent is often not 

available and that the nexus between protected activity and the alleged discrimination must often 

be drawn by inference from circumstantial evidence rather than from direct evidence. Phelps 

Dodge Corp., 3 FMSHRC at 2510. The Commission has identified several circumstantial indicia 

of discriminatory intent, including: (1) hostility or animus toward the protected activity; (2) 

knowledge of the protected activity; (3) coincidence in time between the protected activity and 

the adverse action; and (4) disparate treatment of the complainant. See, e.g., CAM Mining, LLC,

31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 2510.

 

1. Knowledge of the protected activity 

According to the Commission, “the Secretary need not prove that the operator has 

knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there 

is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090, citing

Chicopee Coal Co., 21 FMSHRC at 719. In fact, evidence is sufficient to support a finding of 

knowledge if an operator erroneously suspects a miner made safety complaints, even if no 

complaint was made. See Moses v. Whitley, 4 FMSHRC at 1478. 

Gibson testified that he repeatedly told Vanover, the section foreman, that Gibson did not 

want to engage in unsafe work orders—cutting into the air intake and an unsupported top—

which he ultimately admitted to completing for fear of termination. See (Tr. 39). Leadmon also 

testified that he told Vanover that he did not want to back out of the four right section when it 

was not sufficiently roof bolted for the continuous miner machine to run. (Tr. 102). 

Gibson and Leadmon further testified that Gibson wrote up safety complaints, which he 

copied on May 23, 2017, and Leadmon brought the notes to Superintendent Dotson. (Tr. 42, 108-

09). Additionally, Gibson and Leadmon testified that they went with Hensley on May 23, 2017, 

into Dotson’s office to make safety complaints concerning work orders from Vanover to cut into 

39 FMSHRC Page 1673
the air intake and an unsupported top. (Tr. 43, 108-09). As Leadmon and Gibson were both part 

of the conversation on May 23, 2017, where they made safety complaints to Dotson, this shows 

sufficient evidence that Dotson, the superintendent, knew of their safety complaints. (Tr. 43, 

108-09). 

Wiant admitted that Dotson told him prior to Leadmon and Gibson being suspended that 

“an issue” was brought forward. (Tr. 81). Dotson told Wiant this right after Wiant saw Leadmon, 

Gibson, and Hensley meet with Dotson. (Tr. 81). 

Nonetheless, a credibility determination cannot be made at this time, and the allegations 

by Gibson and Leadmon that they spoke with Vanover, the section foreman, and Dotson, the 

superintendent, about their safety complaints is sufficient to demonstrate knowledge by 

Respondent. 

2. Coincidence in time between the protected activity and adverse action 

The Commission has accepted substantial gaps between the last protected activity and the 

adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) and 

Sec’y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 16-

month gap existed between the miners’ contact with MSHA and the operator’s failure to recall 

miners from a lay-off; however, only one month separated MSHA’s issuance of a penalty 

resulting from the miners’ notification of a violation and that recall failure). The Commission has 

stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive. Surrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.’” All 

American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 

523, 531 (Apr. 1991). 

 

In the instant cases, there was an extremely close proximity in time between the protected 

activities and adverse actions. Gibson and Leadmon both brought safety complaints to 

management on May 23, 2017, engaging in protected activity. (Tr. 42-43, 108-09). The same 

day, on May 23, 2017, Gibson and Leadmon were suspended. (Tr. 45-46, 115). Two days later, 

on May 25, 2017, Gibson and Leadmon were discharged. (Tr. 46-47, 116). As a result, I find that 

the time span between the protected activities and adverse actions is sufficient to establish a 

nexus. 

 

3. Hostility or animus toward the protected activity 

The Commission has held, “[h]ostility towards protected activity—sometimes referred to 

as ‘animus'—is another circumstantial factor pointing to discriminatory motivation. The more 

such animus is specifically directed towards the alleged discriminatee's protected activity, the 

more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). 

Gibson experienced multiple occasions of hostility to the safety complaints he made to 

Vanover, the section foreman, and Dotson, the superintendent. (Tr. 36-37). When Gibson asked 

39 FMSHRC Page 1674
Vanover to switch the airflow while the continuous miner machine was cutting in to the air 

intake on May 4, 2017, Vanover and Smith, an evening shift foreman, just ignored Gibson’s 

complaints and told Gibson to keep working in the dangerous condition. (Tr. 36). Moreover, on 

May 11, 2017, Gibson testified that Vanover cursed at him, yelling that Gibson needed to “F-ing 

cut into it now” when Gibson objected to cutting into an unsupported roof. (Tr. 37). Gibson also 

was suspended on May 23, 2017, after written and verbal safety complaints were presented to 

management. (Tr. 42-43). 

Leadmon also experienced hostility when he told Vanover that he did not want to back 

out of the number four right section without completing bolting for the continuous miner. (Tr. 

101). Vanover told Leadmon “you will do it” and “made [the roof bolters] back out.” (Tr. 102). 

Additionally, Leadmon was suspended on May 23, 2017, after he brought Gibson’s list of safety 

complaints to Dotson and made verbal safety complaints to management. (Tr. 108-09, 115). 

As a result, Gibson and Leadmon both received hostility, which was directed towards 

their safety complaints when Vanover ignored their safety complaints and continued to demand 

they complete unsafe work orders. (Tr. 36-37). Moreover, the fact that they were suspended the 

same day that they made safety complaints to management demonstrates animus. (Tr. 45-46, 

115). 

 

4. Disparate treatment 

“Typical forms of disparate treatment are encountered where employees guilty of the 

same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which 

befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate 

treatment is not necessary to prove a prima facie claim of discrimination when the other indicia 

of discriminatory intent are present. Id. at 2510-2513. 

There was some testimony brought forward by Respondent indicating that Ron Bennett 

and the other miners working in the four main section made safety complaints without being 

terminated. (Tr. 87-88). Evidence was not brought forth by the Secretary to indicate whether 

there was disparate treatment in the instant matter. However, this factor is not necessary for a 

prima facie claim of discrimination and does not outweigh the other factors indicating a nexus 

between protected activity and adverse action. 

 D. Defenses 

 

 Respondent argued at hearing that Leadmon and Gibson’s safety complaints were only 

made in response to disciplinary action taken by Respondent. (Tr. 76). This defense requires a 

credibility determination, and is therefore outside of the scope of these temporary reinstatement 

cases. Further, Respondent argues that Complainants were terminated for taking unsafe actions 

in the mine. (Tr. 66, 130). Specifically, Respondent contends that Gibson was terminated for 

cutting into the air intake and an unsupported roof, while Leadmon was terminated for falsifying 

a PDM sample. (Tr. 66-67, 130; RX-1, 3). These defenses are not appropriate for a temporary 

reinstatement proceeding as they do not challenge the Secretary’s burden of bringing a claim that 

39 FMSHRC Page 1675
is not frivolous. These defenses do not challenge that there is reasonable cause to believe by 

substantial evidence that a violation of section 105(c) has occurred. 

VII. CONCLUSION 

In concluding that Gibson’s and Leadmon’s complaints were not frivolously brought, I 

find that there is reason to believe Gibson and Leadmon engaged in protected activities and that 

there was a nexus between the protected activities and their terminations. 

ORDER 

 

For the reasons set forth above, it is ORDERED that Complainant Benjamin Leadmon 

be immediately reinstated by Respondent to his former position, or the equivalent, at the same 

rate of pay, hours worked, and with all other benefits he was receiving at the time of his 

discharge, effective the date of this decision. 

 Further, it is ORDERED that Complainant Franklin Jeremiah Gibson be immediately 

reinstated by Respondent to his former position, or the equivalent, at the same rate of pay, hours 

worked, and with all other benefits he was receiving at the time of his discharge, effective the 

date of this decision. 

 The court retains jurisdiction over these temporary reinstatement proceedings. 29 C.F.R. 

§ 2700.45(e)(4). The Secretary shall complete the investigation of the underlying discrimination 

complaints as soon as possible. Immediately upon completion of the investigations, the 

Secretary shall notify counsel for Respondent and this court, in writing, whether violations of 

Section 105(c) of the Mine Act have occurred. Id. 

 /s/ William S. Steele 

William S. Steele 

 Administrative Law Judge 

 

39 FMSHRC Page 1676
Distribution (Via E-mail and Certified Mail): 

Kathleen F. Borschow, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th Street 

South, Suite 401, Arlington, VA 22202-5450; borschow.kathleen@dol.gov 

Todd C. Myers, Esq., Associate General Counsel, Blackhawk Mining, LLC, 3228 Summit 

Square Place, Suite 180, Lexington, KY 40509; tmyers@blackhawkmining.com 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513; kilpatrick@rwktlaw.com 

Benjamin Leadmon, 93 Fullmoon Drive, Charleston, WV 25306 

Franklin Jeremiah Gibson, 4622 Foster Ridge Road, Given, WV 25245 

39 FMSHRC Page 1677
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 

August 30, 2017 

 

ORDER OF DISMISSAL 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge McCarthy 

 This proceeding is before me on an Amended Complaint of Discrimination filed by the 

Secretary of Labor (Secretary) on April 2, 2015, on behalf of Complainant, Pedro Iglesias 

(Iglesias), pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the 

Act), as amended. See 30 U.S.C. § 815(c)(2). The Amended Complaint alleges that on November 

11, 2014, the Respondent, Titan Florida, LLC (Titan), terminated the employment of Iglesias in 

violation of section 105(c) because he exercised his statutory rights to make safety complaints to 

the Mine Safety and Health Administration (MSHA) and to Titan. Currently pending before the 

Court are the Respondent’s Motion to Modify Order of Temporary Economic Reinstatement, 

filed on July 3, 2017 in Docket No. SE 2015-0105,1

 and the parties’ Joint Motion to Approve 

Settlement and Dismiss filed on August 25, 2017 in Docket No. SE 2015-0234.

 1

 On December 23, 2014, the Secretary filed an Application for Temporary Reinstatement 

on behalf of Iglesias, which was docketed before the Commission as Docket No. SE 2015-0105. 

Respondent did not request a hearing on the Application. Instead, the parties negotiated a 

settlement of the issues raised by the Application. On February 19, 2015, the Secretary, 

Respondent, and Complainant filed a Joint Motion to Approve Agreement for Economic 

Reinstatement. On February 27, 2015, the undersigned issued an Order of Temporary Economic 

Reinstatement, retroactive to the date of the Secretary’s December 23, 2014 Application. 

Respondent was ordered to economically reinstate Iglesias, as specified in the Joint Motion to 

Approve Agreement for Economic Reinstatement, under the same terms as if Iglesias’s 

employment had not been terminated on November 11, 2014. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) on behalf 

of PEDRO IGLESIAS, 

 Petitioner 

 v. 

TITAN FLORIDA, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2015-0105 

A.C. No. 08-00051 

DISCRIMINATION PROCEEDING 

Docket No. SE 2015-0234-DM 

A.C. No. 08-00051 

MSHA Case No. SE-MD-15-04 

Mine: Pennsuco Cement Plant 

39 FMSHRC Page 1678
The Secretary’s Amended Complaint alleges that on June 25, 2013, Iglesias filed a 

hazard complaint with MSHA under section 103(g) of the Act; that on October 17, 2014, Iglesias 

informed his supervisors of safety concerns about damaged energized cables; and that on 

November 1, 2014, Iglesias informed supervisor Cesar Soriano of safety concerns regarding 

lockout/tagout. Complaint at ¶ 8. The Amended Complaint further alleges that on or about 

November 11, 2014, with the agreement of Titan’s upper management, Human Resources (HR) 

manager, Yvette Rodriguez [Hernandez, Tr. 12], and Titan’s former production manager, Jeff 

Harris, fired Iglesias. The Amended Complaint alleges that Hernandez and Soriano knew that 

Iglesias participated in MSHA’s investigation of the hazard complaint, which resulted in an 

MSHA inspection and five citations for Titan, and that Hernandez and Soriano also knew or 

suspected that Iglesias filed the hazard complaint. Id. at ¶ 10 and 11. Based on the foregoing, the 

Amended Complaint alleges that Respondent discharged Iglesias because he made a Complaint 

under the Act and/or caused to be instituted a proceeding under the Act and/or exercised his 

rights under the Act. Id. at ¶ 12. 

The parties have filed a Joint Motion to Approve Settlement and Dismiss to resolve both 

the Motion to Modify Order of Temporary Economic Reinstatement pending in Docket No. SE 

2015-0105 and the underlying discrimination claims in Docket No. SE 2015-0234. The parties 

represented in their Joint Motion that Complainant Iglesias and Respondent have entered into a 

Confidential Settlement Agreement resolving all issues. The Secretary is not a signatory to the 

Confidential Settlement Agreement. Jt. Mot. at ¶ 6. The Joint Motion also proposes a reduction 

in the penalties from $13,100 to $3,000. I have reviewed the Joint Motion to Approve 

Settlement and Dismiss. I have reviewed the Confidential Settlement Agreement in camera. 

Following such review, I conclude that the proposed settlement is appropriate under the criteria 

set forth in section 110(i) of the Act, is in the public interest, and will further the intent and 

purpose of the Federal Mine Safety and Health Act, as amended. 

Accordingly, the parties’ Joint Motion is GRANTED, and the parties are ORDERED to 

comply with the terms and conditions of both the Joint Motion and the Confidential Settlement 

Agreement within 30 days of the date of this Order, except as otherwise provided in the Joint 

Motion and/or the Confidential Settlement Agreement. My Order of Temporary Economic 

Reinstatement is dissolved as of the date of Iglesias’s full reinstatement, per the terms of the 

Joint Motion approved herein. Upon completion of the terms and conditions of the Joint Motion 

and the Confidential Settlement Agreement, the above-captioned proceedings are DISMISSED. 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

39 FMSHRC Page 1679
Distribution: 

 

Uche N. Egemonye, U.S Department of Labor, Office of the Solicitor, 61 Forsyth Street SW, 

Suite 7T-10, Atlanta, GA 30303 

Margret Lopez, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street NW, Suite 

1000, Washington, DC 20006 

Pedro Iglesias, 1521 SW 124 Place Concourse, Miami, FL 33184-2392 

/ccc 

39 FMSHRC Page 1680
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

August 31, 2017 

 

DECISION

Appearances: Paige I. Bernick, Esq. (Eric Johnson, Esq., on brief), U.S. Department of Labor, 

 Office of the Solicitor, Nashville, Tennessee, for Petitioner; 

 James F. Bowman, Safety Consultant, Midway, West Virginia, for Respondent. 

Before: Judge Paez 

 This case is before me upon a petition for the assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d).1

 In dispute are three section 104(d)(2) 

orders issued by the Mine Safety and Health Administration (“MSHA”) to Raw Coal Mining 

Company, Inc. (“Respondent” or “Raw Coal”), as owner and operator of the Sewell Mine B 

(“Sewell mine”) in Asco, West Virginia. To prevail, the Secretary must prove any cited violation 

“by a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. Sec’y of Labor v. Keystone Coal 

Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). 

 

I. STATEMENT OF THE CASE 

These three section 104(d)(2) orders were issued at Raw Coal’s Sewell mine. Although 

none of them were designated as significant and substantial (“S&S”), the Secretary characterizes 

Raw Coal’s negligence as “high” for all three orders and alleges that the violations were a result 

 1

 In this decision, the hearing transcript, the joint exhibit, the Secretary’s exhibits, and 

Raw Coal’s exhibits are abbreviated as “Tr.,” “Joint Ex. #,” “Ex. S–#,”and “Ex. R–#,” 

respectively. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

RAW COAL MINING COMPANY, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2015-996 

A.C. No. 46–06265–383951 

Mine: Sewell Mine B 

39 FMSHRC Page 1681
of the company’s unwarrantable failure to comply with mandatory safety standards.2

 The 

Secretary proposes a penalty of $4,000.00 for each violation for a total penalty of $12,000.00. 

 

This matter was initially the subject of a default judgement. The Commission, in an order 

encompassing several consolidated dockets and operators, granted Respondent’s request to 

reopen this case. Allstate Materials, LLC, 38 FMSHRC 645 (Apr. 2016) (reopening unrelated 

matters involving eight different operators in a single order). Thereafter, Chief Administrative 

Law Judge Robert J. Lesnick assigned me Docket No. WEVA 2015-996, and I held a hearing on 

March 9, 2017, in Beckley, West Virginia. The Secretary presented testimony from MSHA 

Inspector Nicholas Christian and Inspector Trainee Donald LeMarr. Raw Coal presented 

testimony from general mine foreman Fred Ciampanella, mine superintendent Randy Campbell, 

and third shift section foreman Burb Blankenship. The parties each filed post-hearing briefs and 

reply briefs, whereby the record closed on June 7, 2017. 

II. ISSUES 

Raw Coal, through its lay representative, challenges the fact of the violation, the 

negligence and unwarrantable designations, and the proposed penalty for each order. 

Order No. 9020987 charges Raw Coal with a violation of 30 C.F.R. § 75.364(b)(2) for 

failing to perform the required weekly examination of the Left Return Aircourse and Seals. Raw 

Coal, however, contends it conducted the exam but simply failed to record it. 

 

Order No. 9064481 charges Respondent with a violation of 30 C.F.R. § 75.333(b)(1), 

which requires Raw Coal to construct a line of stoppings (solid physical barriers) in the crosscuts 

between the working section’s intake and return entries, so as to separate the fresh air in the 

intake entry from the contaminated air in the return entry. Although the standard permits the two 

connecting crosscuts closest to the working face (where coal is actively being mined) to remain 

open for travel between the two entries, the Secretary alleges Raw Coal impermissibly allowed 

 

 2

 The S&S and unwarrantable failure 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” and establishes more severe sanctions for any violation caused by “an unwarrantable 

failure of [an] operator to comply with . . . mandatory health or safety standards.” A violation 

that is both S&S and an unwarrantable failure shall result in a 104(d)(1) citation. Id. The 

occurrence of another unwarrantable failure violation within the next 90 days, even if not S&S, 

shall result in the issuance of a 104(d)(1) order withdrawing miners from the affected area. Id. 

Any subsequent unwarrantable failure withdrawal orders are issued under section 104(d)(2) until 

such time that an inspection of the mine discloses no further unwarrantable failure violations. Id.; 

Greenwich Collieries, 12 FMSHRC 940, 945 (May 1990). The 104(d)(1) predicate for the three 

orders in this case was Order No. 9061670, which was issued on January 21, 2015, and became a 

final order on November 23, 2015. (Tr. 43:9–21; Ex. S–18.) 

39 FMSHRC Page 1682
an additional two crosscuts between those entries to remain open.3

 Raw Coal, in turn, argues that 

the third connecting crosscut was permitted to remain open when the order was issued, and that 

the ventilation control for the fourth connecting crosscut was adequately maintained. 

Lastly, Order No. 9064486 charges Respondent with violating its approved ventilation 

plan in a number of ways, including moving an entire line of stoppings to a series of crosscuts 

where they were not permitted to be, altering the direction of air flow in a return entry, and 

creating a dead air space. Raw Coal denies it moved a line of stoppings or altered the direction of 

air flow, and argues that the arrangement of its ventilation controls constituted a permissible 

variation of the MSHA-approved ventilation plan. 

Alternatively, if any violations were to be found, Raw Coal disputes the unwarrantable 

failure designations due to the alleged limited duration and extent of the violation in Order No. 

9020987, inadequate notice that greater efforts were needed for compliance in Order No. 

9064481, and complexity of the ventilation map at issue in Order No. 9064486. 

Accordingly, the following issues are before me: (1) whether Respondent violated 

30 C.F.R. § 75.364(b)(2) as alleged in Order No. 9020987; (2) whether Respondent violated 

30 C.F.R. § 75.333(b)(1) as alleged in Order No. 9064481; (3) whether Respondent violated 

30 C.F.R. § 75.370(a)(1) as alleged in Order No. 9064486; (4) whether the Secretary’s gravity 

determinations are properly designated for these three section 104(d)(2) orders; (5) whether 

Respondent’s negligence is properly designated as “high” and constitutes an unwarrantable 

failure; and (6) whether the proposed penalties are appropriate. 

 For the reasons set forth below, Order Nos. 9020987, 9064481, and 9064486, are 

AFFIRMED. 

III. FINDINGS OF FACT 

The parties stipulated to the following: 

1. Raw Coal Mining Company, LLC (“Respondent”) is subject to the Federal 

Mine Safety and Health Act of 1977 and to the jurisdiction of the Federal 

Mine Safety and Health Review Commission. 

2. The presiding Administrative Law Judge has the authority to hear this case 

and issue a decision. 

3. Respondent has an effect upon commerce within the meaning of Section 4 

of the Federal Mine Safety and Health Act of 1977. 

 3

 If one were to proceed away from the face where coal was actively being mined at the 

time of the inspection, the two crosscuts that do not require permanent ventilation controls would 

be the first and second crosscuts encountered. Hence, they are referred to in this decision as the 

first and second crosscuts outby the working face. The crosscuts with allegedly missing or 

incomplete stoppings would be the third and fourth crosscuts encountered and are accordingly 

referred to as the third and fourth crosscuts outby the working face. 

39 FMSHRC Page 1683
4. Respondent operates Sewell Mine B, Mine Identification Number 46-

06265. 

5. Sewell Mine B mined 97,208 tons of coal in 2016. 

6. Respondent abated the citations involved herein in a timely manner and in 

good faith. 

7. Secretary’s Exhibits 1 through 22 are admissible. 

8. Respondent’s Exhibits 1 through 7 are admissible. 

(Joint Ex. 1.) 

Raw Coal’s Sewell Mine B is an underground coal mine in McDowell County, West 

Virginia. (Ex. R–6.) The Sewell mine consists of a series of entries and perpendicular crosscuts 

that together form a grid if viewed from above. (See Exs. S–14, S–15.) Its low ceilings measure 

approximately 42 to 44 inches in height and generally require miners to crawl through 

travelways or ride in a vehicle to get around. (Tr. 25:17–26:4.) The company mines coal on three 

daily eight-hour shifts at the Sewell mine. (Tr. 33:1–14.) As the operator advances through a 

section in the course of normal mining operations, it leaves pillars of coal between entries and 

crosscuts that help support the roof. After a section is completely mined, the operator then 

engages in a process commonly referred to as “retreat mining.” In other words, to collect 

additional coal from the remaining pillars, Raw Coal removes those pillars and allows the roof to 

collapse. (Tr. 67:14–68:6.) 

Raw Coal also utilizes a system of ventilation controls at the mine (including stoppings 

and curtains positioned in various crosscuts between entries) to direct fresh air to the active 

production sections through “intake” entries, and to direct harmful gases and dust from the 

working faces out of the mine through “return” entries. (Tr. 27:11–30:23.) MSHA views the 

liberation of methane gas, in particular, as a problem at any underground coal mine due to its 

explosive potential. However, the Sewell mine produced significantly less than the 200,000 

cubic feet of methane necessary to warrant a spot inspection (close and frequent monitoring for 

issues related to methane buildup), a fact that is reflected in MSHA’s gravity determinations for 

the subject orders. (Tr. 34:16–20, 35:10–23, 36:16–37:4; Ex. S–5.) 

 

A. Order No. 9020987 – The Weekly Exam Violation 

Inspector Christian arrived at the Sewell mine at 7:25 a.m. on April 7, 2015, to conduct a 

regular inspection with MSHA Inspector Trainee Trent LeMarr.4

 (Tr. 15:3–11, 16:12–22.) They 

were accompanied by Raw Coal agents Fred Ciampanella and Randy Campbell. (Id.) Christian 

 4

 While Christian had only been an MSHA inspector since 2014, he had an additional 13 

years of experience in the mining industry, which included jobs as a section foreman, general 

mine foreman, and mine superintendent. (Tr. 9:22–13:6.) As a mine superintendent, Christian 

was responsible for developing, reviewing, and ensuring compliance with mine ventilation plans. 

(Tr. 12:15–24.) Likewise, LeMarr joined MSHA in 2014 and had approximately 20 years of 

prior experience in the mining industry. (Tr. 274:2–12.) 

39 FMSHRC Page 1684
proceeded to the mine office and began checking Raw Coal’s record books. He immediately 

noticed the company had not recorded in its logbook a weekly exam of the left return aircourse 

and seals since March 30. (Tr. 15:13–17:5; Ex. S–2.) Raw Coal was required to conduct and 

record another weekly exam of the area by April 6 (the prior day). (Tr. 17:13–14.) Christian 

knew Ciampanella had accompanied him for most of the April 6 inspection (which lasted until 

the early afternoon) and could not have conducted the weekly exam during that time. (Tr. 24: 

15–18, 110:18–24.) But, to be certain, Christian asked Ciampanella, “Did you make the exam 

yesterday?” and, according to the inspector, Ciampanella responded, “No, I did not make the 

exam yesterday.” (Tr. 17:17–24; Ex. S–4 at 5.) Inspector Trainee LeMarr fully corroborated 

Christian’s account of the conversation. (Tr. 276:3–7.) At hearing, however, Ciampanella denied 

making that statement or even being asked the question, and insisted he had in fact conducted the 

exam over the course of multiple days, including April 6, but simply failed to record that he had 

examined the entire left return. (Tr. 245:12–19, 247:20–249:13, 259:3–7.) 

Christian next checked the tracking logbook in the dispatcher’s office for any evidence 

that Raw Coal had conducted the weekly exam.5

 (Tr. 18:8–17.) When entering a return, miners 

are required to phone the dispatcher above ground to record their presence in the return and how 

long they expect to remain there, so the company knows to look for them if they remain longer 

than intended. (Tr. 18:8–14.) The company is also required to keep written logs of these calls. 

(Tr. 21:23–22:2.) The logbook did not display any record of miners entering either the left or 

right return since April 2. (Tr. 22:1–8; Ex. S–3.) Christian also asked individuals in the 

dispatcher’s office if they had any other notes or records indicating that Ciampanella had been in 

the return recently. The answer he received was once again, “No.” (Tr. 19:5–8.) At this point 

Christian informed Ciampanella and Campbell “that they were to withdraw the men from the 

mine until the aircourse [examination] could be made,” and the company immediately complied 

with the withdrawal order. (Tr. 19:8–10, 24:19–22.) 

Christian told Ciampanella that he was already planning to travel through the left return 

airway in the course of his regular inspection that day, so he intended to accompany Ciampanella 

when he conducted the exam to abate the order. (Tr. 24:23–25:3.) However, while the inspector 

was checking a coal truck on the surface, Ciampanella hopped onto a vehicle and hurried 

underground without slowing down to allow Christian an opportunity to accompany him. (Tr. 

25:4–9.) Because Ciampanella had left him without a permissible ride, Christian could not travel 

to the return and observe the examination himself. (Tr. 25:17–26:24.) Instead, Christian waited at 

the surface.6

 The order was terminated when Ciampanella returned to the surface and presented a 

record of the exam he had just conducted. (Tr. 25:14–16.) 

 

 5

 Although Christian had already confirmed that Ciampanella had not conducted the 

exam, there were at least four other certified foremen who could have done so. (See Tr. 44:21–

45:19.) 

6

 Being 6’5”, Christian would have needed to crawl through the travelways (which 

averaged 42 to 44 inches in height) to adequately inspect the return, a process he speculated 

would take him eight or nine hours. (Tr. 25:17–26:24.) 

39 FMSHRC Page 1685
B. Order No. 9064481 – The Missing and Incomplete Stoppings Violation 

At the start of a subsequent inspection on the morning of April 21, a section foreman at 

the mine asked Inspector Christian if the company was permitted to continue cutting, loading, 

and cleaning a working section while constructing a stopping. (Tr. 46:4–47:7.) Christian recalled 

that just three weeks prior he had cited the company for a violation of section 75.333(b)(1), 

which requires stoppings to be installed up to and including the third crosscut outby the working 

face, so he believed the company was concerned that it was again in violation of the same 

standard. (Tr. 47:5–22; Exs. S–9, S–10, S–11.) Christian told the section foreman he would 

assess the situation when he arrived at the section, and then proceeded with his inspection, 

accompanied by LeMarr and Raw Coal agents. (Tr. 47:19–48:3.) 

 

When Christian arrived at the working section, he observed no stoppings in the three 

open crosscuts outby the working section (i.e., the three crosscuts closest to the working face). 

(Tr. 52:12–53:16; see Ex. S–7 at 15.) These crosscuts provided access to the left return entry, 

where air that has ventilated the face directs dust and gas out to the surface. (Id.) While the first 

two crosscuts closest to the face are permitted to remain open in order to allow miners to access 

the return entry if necessary, the third crosscut (and each one after that) requires a permanent 

stopping once the first two crosscuts are fully cut through, bolted, and safe for travel.7 (Tr. 

228:13–21.) The ventilation controls are designed to separate fresh air blowing through the 

intake entry toward the working face from the contaminated or dirty outgoing air in the return 

entry that has already passed through the working sections, ensuring that a sufficient flow of 

fresh oxygen reaches the working face without being diverted (or short circuited) into the return 

entry. See 61 Fed. Reg. 9764, 9782 (Mar. 11, 1996) (explaining the rationale for the ventilation 

control requirements in 30 C.F.R. § 75.333). 

The first crosscut outby the working face did not contain any ventilation controls, 

temporary or permanent, while the second and third crosscuts had temporary curtains installed to 

control ventilation. (Tr. 53:1–11.) Temporary ventilation controls do not satisfy the standard’s 

requirements. See 30 C.F.R. § 75.333(b)(1). Christian observed that the stopping for the fourth 

crosscut outby the working section was only partially completed, as it contained exposed unplastered wood and a hole (or opening) at the top spanning 8 to 10 feet — half the width of the 

crosscut — without even a curtain to fill the gap. (Tr. 48:8–12, 53:11–17, 54:10–15, 61:6–

62:17.) Therefore, Christian found Raw Coal to be in violation of the standard at both the third 

and fourth crosscuts outby the working section. (Tr. 78:19–79:2.) He proceeded to take an air 

reading at the open crosscut closest to the section face and recorded an airflow rate of only 7,000 

cubic feet per minute (“CFM”), well below the mine’s ventilation plan requirement of an airflow 

of 12,000 CFM. (Tr. 53:17–54:1, 57:1–13; Ex. S–8.) Christian explained that by not having 

stoppings installed, the company was short-circuiting intake air through the crosscuts into the 

return entry instead of forcing it toward the section face. (Tr. 54:1–12.) 

According to Christian, when he told Ciampanella that he would be issuing a section 

104(d)(2) order for failing to install the required stoppings and asked for any mitigating 

 7

 Crosscuts must have adequate roof support to remain safe for travel, so miners can pass 

through them without subjecting themselves to the risk of a roof fall. Roof bolting is an essential 

part of the mining process and integral to a mine’s roof control plan. 

39 FMSHRC Page 1686
circumstances, Ciampanella responded, “Why should I install those stoppings, when I’m going 

to tear them back out tonight when I begin pillaring?” (Tr. 67:7–13.) Since Raw Coal would 

eventually be “retreat mining” in the section, the company would possibly begin “pillaring later 

that night” after mining out the area. (Tr. 67:14–68:6.) In other words, the operator would begin 

to remove the pillars of coal to let the roof collapse and bury the section, thereby eliminating the 

need for any stoppings in the soon-to-be non-existent crosscuts. (Id.) Ciampanella’s statement 

convinced Christian that Raw Coal was aware of the violative condition but allowed it to persist 

for the sake of expediency. (Tr. 73:12–20.) 

At hearing, Raw Coal’s witnesses, Blankenship and Ciampanella, disputed Christian’s 

testimony regarding the hole in the stopping for the fourth crosscut. (Tr. 200:15–24, 254:6–20.) 

Ciampanella also claimed that the stopping was fully plastered on one side. (Tr. 254:6–16.) 

However, the biggest point of contention at hearing was the timing for when the first crosscut 

had been fully cut through and bolted such that it was safe for travel, thereby triggering the 

requirement for a completed stopping at the third crosscut. 

Christian testified that he was initially informed the company had finished cutting 

through the first crosscut earlier that morning, during the previous shift, but was later told Raw 

Coal had completed this process the prior evening. (Tr. 58:23–59:22, 60:1–6, 60:19–61:4.) 

Nevertheless, Christian observed that the crosscut was fully cut through, bolted, and safe for 

travel when he arrived at the section at 8:30 a.m. on April 21. (Tr. 59:20–24, 60:8–10, 79:8–19.) 

The record for the preshift examination of the section conducted between 5:00 a.m. and 

7:42 a.m. on April 21 indicates that the first crosscut outby the working face had not yet been 

bolted at the time of the preshift examination. (Ex. R–1 at 5; Tr. 75:15–76:8.) In addition, Raw 

Coal introduced a record of an onshift examination—conducted after the issuance of Inspector 

Christian’s citation—that indicates this same crosscut had not yet been bolted. (Ex. R–1 at 6.) All 

of Raw Coal’s witnesses testified at the hearing that the first crosscut had not been fully cut and 

bolted when Christian observed it, and that it was not until later that day that the company 

completed this process. (Tr. 204:7–205:18, 227:13–228:4, 250:10–254:5.) However, Inspector 

LeMarr, who accompanied Christian, corroborated Christian’s observation that the first crosscut 

was fully cut through and bolted when they initially observed it at 8:30 a.m. (Tr. 277:16–24.) 

Also, LeMarr witnessed the hole Christian had observed in the stopping for the fourth connecting 

crosscut. (Tr. 278:9–19.) 

C. Order No. 9064486 – The Ventilation Plan Violation 

The following day, April 22, Inspector Christian returned to the mine to continue his 

regular inspection, again accompanied by LeMarr. (Tr. 80:21–23, 81:4–5.) At the working 

section, Christian noticed a number of problems with the ventilation controls in the area which 

convinced him that Raw Coal was not following its MSHA-approved ventilation plan. (Tr. 

81:16–83:16.) Most significantly, he testified that an entire line of stoppings was missing from a 

series of crosscuts where the ventilation plan indicated they were supposed to be; instead, it 

appeared that all of those stoppings had been moved exactly one series of crosscuts over, where, 

according to Christian, they were not permitted. (Tr. 82:2–9, 87:17–88:16.) Christian testified 

that he saw leftover materials where the stoppings had once been, including blocks and plaster 

39 FMSHRC Page 1687
still stuck to the mine roof and ribs, suggesting that these stoppings had indeed been moved. (Tr. 

95:10–24.) LeMarr’s testimony at hearing corroborated Christian’s observations of missing 

stoppings and leftover materials in the crosscuts where the approved ventilation plan indicated 

they were supposed to be. (Tr. 279:15–280:6.) However, at the hearing, Mine Superintendent 

Randy Campbell not only testified that no stoppings had been moved but denied that stoppings 

had ever been in the area where Christian believed they should have been. (Tr. 230:15–231:24.) 

Campbell testified the stoppings were not required to be in the area where Christian believed the 

ventilation plan required them and denied there were any leftover materials stuck to the roof and 

ribs in those crosscuts. (Id.) 

Inspector Christian testified that he initially believed Raw Coal had removed the 

permanent ventilation controls in order to develop an area beyond those stoppings, and that 

MSHA had permitted the company to do this. (Tr. 94:4–96:20.) But, once that area had been 

worked out and Raw Coal retreated from there, MSHA expected the company to reinstall the 

removed stoppings in the same location where they had originally been, as required by the 

mine’s MSHA-approved ventilation plan. (Id.) According to Christian, Raw Coal failed to do 

this and had not obtained any revision to its approved site-specific plan that would allow a 

deviation from that strategy. (Tr. 97:2–98:4.) The most recently approved revisions to the mine’s 

ventilation plan had been submitted by Raw Coal on March 25 and approved by MSHA on April 

17, five days before Order No. 9064486 was issued. (Tr. 185:1–24.) Campbell testified that he 

did not think Raw Coal had received the revised ventilation plan by the time of the April 22 

inspection. (Tr. 234:6–16.) Yet, Ciampanella testified that he presumed the mine received the 

approved revisions on April 17 (Tr. 257:15–23), and Christian stated the revised ventilation plan 

was posted on the mine bulletin board at the time of the inspection. (Tr. 186:3–5.) 

More importantly, Christian believed Raw Coal had rearranged its permanent and 

temporary ventilation controls (i.e., both the stoppings and curtains) to shift from a “split air” 

plan to a “sweep air” plan. In a split air arrangement, the intake air that reaches the section splits 

in two different directions down both the left and right return entries. But in the sweep air 

arrangement Raw Coal had created on April 22, the intake air was sweeping across the face in a 

single direction, down the left return entry only. (Tr. 82:10–23, 85:12–87:12, 90:19–91:21.) 

Mine Superintendent Campbell testified that Raw Coal had permissibly maintained a split air 

arrangement by allowing room for air to travel down the right side through the section they were 

developing at the time. (Tr. 236:18–237:11.) However, Christian maintained that on April 22 the 

entries had not yet been cut through in those locations to allow passage for that air. (Tr. 192:15–

193:13.) 

As a result of the above conditions, Inspector Christian observed that Raw Coal had 

altered the direction of the air in one of the entries from a return entry to an intake entry, thereby 

ensuring there was no available entry on that side of the section for return air to travel. (Tr. 

82:23–83:3, 90:8–92:14, 182:12–19.) A regulator (i.e., a hole in a stopping) in that entry had 

previously redirected return (dirty) air to the bleeder entry (thus carrying harmful air-methane 

mixtures away from working sections to worked-out areas and finally to the surface). However, 

 

39 FMSHRC Page 1688
the company was now directing intake (clean) air through the regulator.8

 (Tr. 83:5–12.) There 

was now the potential that this regulator could direct harmful air from the worked out sections to 

the working section through what was now, impermissibly, an intake entry. (Tr. 103:1–105:7.) 

Additionally, this new arrangement of stoppings blocked all access by foot to a bleeder entry 

where a mine examiner would be expected to travel, according to Raw Coal’s approved 

ventilation plan. (Tr. 92:16–24.) 

Finally, this arrangement created a “dead air space” off to the side of the section where 

“there was no air movement whatsoever.” (Tr. 88:18–24, 102:15–16.) Christian and LeMarr 

confirmed this by testing the flow of the air with chemical smoke. (Tr. 88:21–22, 280:7–11.) 

Although a dead air space might be especially dangerous for miners in the area, Christian saw no 

reason for anyone to enter the area where this lack of air movement was observed. (Tr. 102:15–

19.) 

Christian informed Raw Coal that he was issuing a section 104(d)(2) withdrawal order 

for a failure to follow the mine’s approved ventilation plan, and that Raw Coal would have to 

shut down operations until it reinstalled its stoppings in accordance with the approved plan. (Tr. 

107:10–13.) Correcting the cited condition required 33 miners working approximately 27 hours 

over the course of three shifts, after which point Christian terminated the order. (Tr. 107:14–20.) 

IV. PRINCIPLES OF LAW 

The Commission has determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 

1987). It is characterized by “indifference,” a “serious lack of reasonable care,” “reckless 

disregard,” or “intentional misconduct.” Id. at 2003–04; see also Buck Creek Coal, Inc. v. 

MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving the Commission’s unwarrantable failure 

test). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of a case to see if aggravating or mitigating factors 

exist. See IO Coal Co., 31 FMSHRC 1346, 1350–51 (Dec. 2009). The Commission has 

identified several such factors, including: the length of time a violation has existed, the extent of 

the violative condition, whether the operator has been placed on notice that greater efforts are 

necessary for compliance, the operator’s efforts in abating the violative condition, whether the 

violation was obvious, whether the violation posed a high degree of danger, and the operator’s 

knowledge of the existence of the violation. See id. “Because supervisors are held to a high 

standard of care, another important factor supporting an unwarrantable failure determination is 

the involvement of a supervisor in the violation.” Lopke Quarries, Inc., 23 FMSHRC 705, 711 

(July 2001) (citing REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998)). These factors are 

viewed in the context of the factual circumstances of each case. Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000). All relevant facts and circumstances of each case must be 

 8

 Christian noted that whenever a regulator is used for this purpose, a mine operator must 

then conduct regular preshift examinations in the areas where intake air is being directed from 

worked-out areas; but Raw Coal was not conducting these exams. (Tr. 83:5–12.) Its failure to do 

so would be the subject of a separate citation. (Ex. S–16 at 13.) 

39 FMSHRC Page 1689
examined to determine whether an actor’s conduct is aggravated or if mitigating circumstances 

exist. Id. 

The Commission has noted that “[s]ome of the same evidence that the Judge will 

examine with respect to the unwarrantable failure factors will be relevant to the question of the 

degree of the operator's negligence,” especially since both unwarrantable failure and high 

negligence suggest an aggravated lack of care that is more than ordinary negligence. Brody 

Mining, LLC, 37 FMSHRC 1687, 1691, 1703–04 (Aug. 2015) (citations omitted). 

V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, 

AND CONCLUSIONS OF LAW 

As a preliminary matter, I note that I found Inspector Christian and Inspector Trainee 

LeMarr to be credible witnesses. Respondent attacked Christian and LeMarr for their relative 

inexperience as MSHA agents, pointing out that the inspectors’ accounts often diverged from 

those of Raw Coal’s agents. Nevertheless, I find that Christian’s 13 years of experience in the 

mining industry, including as a section foreman, general mine foreman, and mine superintendent, 

and LeMarr’s 20 years of experience in the mining industry more than compensate for their short 

time as MSHA officials. (Tr. 12:15–24, 274:2–12.) 

Additionally, I do not find any reason to doubt the veracity of the inspectors’ accounts. In 

a prehearing statement, the Respondent’s lay representative initially alluded to a “heated 

argument” following the issuance of Order No. 9020987 wherein Christian refused 

Ciampanella’s invitation to travel to the return entry and check the DTI’s9

 on site to confirm that 

Ciampanella had performed a weekly examination of the air course. According to Respondent, 

Christian instead insinuated that Ciampanella was a liar and the argument “got so bad that the 

inspector . . . called his supervisor . . . [and] ask[ed] his supervisor to send a federal marshall to 

the mine and arrest” Ciampanella. (Resp’t Prehearing Statement at 1–2.) By presenting the 

narrative this way, Respondent implied that Christian’s subsequent enforcement actions were 

colored by personal animosity toward Ciampanella. Yet, at hearing, it was revealed this incident 

occurred on May 6, well after all of the orders in this matter were issued, and no witness testified 

about Christian threatening to call a federal marshal. (Tr. 131:14–24, 133:17–134:24, 226:6–

227:3.) I find these arguments do not undermine Christian’s credibility, especially as his 

observations were recorded contemporaneously in his notes during the April inspection. 

 

Respondent also asks me to discount Christian’s testimony due to what it alleges are 

“numerous discrepancies” between his testimony and the facts in the record. (Resp’t Br. at 3.) 

For example, Christian noted that he did not observe Ciampanella examine the left return 

aircourse on April 6 while the two were together “for the most part of the day,” even though the 

inspector was only at the mine between 6:20 a.m. and 12:48 p.m. (Tr. 24:15–17; Ex. R–5.) 

According to Respondent’s lay representative, Christian’s testimony is inconsistent with the facts 

because this timeline establishes that Christian technically “wasn’t with Mr. Ciampanella all day 

 9

 “DTI’s” is short for “Date, Time, and Initials.” The term refers to markings at the site of 

an examination documenting the date and time of a weekly examination, and the initials of the 

individual examining the area. (Tr. 129:12–17.) 

39 FMSHRC Page 1690
long” (a phrase that Christian himself never used). (Resp’t Br. at 3; Tr. 112:2–113:1.) I do not 

find that this alleged discrepancy (if it can even be called that) undermines Christian’s 

credibility. If I have chosen not to address any of the other numerous alleged discrepancies raised 

by Respondent’s lay representative in his post-hearing brief, it is because I have found them to 

be equally insubstantial (for reasons ably demonstrated by the Secretary in his reply brief). (See

Sec’y Reply Br. at 1–6.) 

A. Order No. 9020987 – The Weekly Exam Violation 

1. Additional Findings of Facts 

I find that Raw Coal failed to conduct a complete exam of the left return aircourse and 

seals within a week of its prior examination of the area on March 30. I credit Christian’s and 

LeMarr’s testimony that during the inspection on April 7 Ciampanella admitted he had not 

conducted the exam on April 6, the prior day, which is bolstered by Christian’s undisputed 

testimony that Ciampanella did not conduct the exam during the time he accompanied Christian 

on the prior day’s inspection. (Tr. 17:17–24, 24:15–18, 276:3–7.) I further credit Christian’s 

testimony that Ciampanella immediately, and without objection, complied with the withdrawal 

order and did not argue that he had in fact completed the exam. (Tr. 17:17–18:7, 24:19–22.) I 

also give significant weight to the fact that Raw Coal could not produce records demonstrating it 

had completed the exam.10 (Tr. 19:5–8.) Yet, Respondent now offers an explanation for this 

omission: Ciampanella purportedly conducted the exam in segments over the course of multiple 

days, including on April 6, but simply forgot to record his completion of the entire exam. (Tr. 

247:20–249:13, 259: 3–8.) When it was pointed out that the mine’s tracking logbook also did not 

contain any record of Ciampanella’s entry into the left return aircourse during that entire week, 

Respondent’s lay representative provided an unconvincing explanation: “Tracking of Mr. 

Ciampanella is done manually by the outside person. . . . [H]uman error was possible when 

manually logging tracking.” (Tr. 22:1–11; Resp’t Br. at 16.) Perhaps this was a case of the 

operator repeatedly failing to do what was expected of it, except of course for the one thing that 

it was actually cited for. Regardless, I do not find this explanation credible. 

Raw Coal also claims that had Christian accompanied Ciampanella for the order’s 

abatement, he would have found Ciampanella’s DTI’s in the return aircourse confirming that 

 10 At hearing, the company did submit evidence documenting Ciampanella’s examination 

between April 1–4 of what he claimed were segments of the left return. (Tr. 247:2–249:5; Ex. R–

4.) However, the referenced areas were not displayed in the exhibits relied on at hearing, because 

none of the maps introduced into evidence showed the entire mine. Without reference to a full 

mine map, Christian understandably could not point out the precise location of those areas at 

hearing, nearly two years after the inspection. (Tr. 122:19–124:12.) But, Christian credibly 

testified that he consulted a mine map at the time of the inspection to confirm the referenced 

areas were not located in the left return; instead, they were located in the right return. (Tr. 122:4–

128:8.) Notably, of the referenced segments purportedly located in the right return, only one is 

clearly visible on the truncated maps actually introduced into evidence (the segment labelled 

“EP-5”), and that segment is located in the right return aircourse, not the left, on those maps. (Tr. 

124:8–23; Exs. R–4, S–15.) Therefore, I fully credit Christian’s testimony on this point. 

39 FMSHRC Page 1691
Raw Coal had in fact examined the area. (Tr. 24:23–25:3, 25:4–9; Resp’t Br. at 14–15.) If that 

were true, one might expect Ciampanella to have seized on the opportunity to show Christian 

those DTI’s himself. Instead, Ciampanella did not allow Christian an opportunity to accompany 

him on his examination to abate the order, even though Christian asked to do so. (Tr. 24:23–25:3, 

25:4–9.) This behavior further supports my finding that Raw Coal had not examined the left 

return. 

Moreover, I find it irrelevant that a month later, in May, Raw Coal conducted but failed 

to record a different weekly examination of the left return aircourse, or that Christian was able to 

confirm this by accompanying Ciampanella and checking the DTI’s in the area. (See Resp’t Br. 

at 14.) As the Secretary notes, “the May inspection shows Inspector Christian’s willingness to 

evaluate all facts provided by the mine.” (Sec’y Reply Br. at 1–2.) But on April 7, even without 

consulting the DTI’s, Christian had ample reason to conclude that Raw Coal had not conducted a 

weekly exam of the left return air course. Thus, I reject Respondent’s contention that Christian 

“did not conduct even a slightest examination to sustain the burden of proving” a violation and 

that “[i]n the absence of DTI evidence there is no evidence to support a charge that the 

examination was not conducted.” (Resp’t Reply Br. at 3.) Rather, the evidence as a whole, 

including the exam records, the tracking logs, Ciampanella’s admission, and Raw Coal’s 

behavior upon being cited, leads me to find that Raw Coal failed to conduct the weekly exam. 

2. Analysis and Conclusions of Law 

a. Violation 

The Secretary alleges that Raw Coal violated section 75.364(b)(2), which requires a 

certified person to examine at least one entry of each return air course, in its entirety, for 

hazardous conditions at least every seven days. (Ex. S–1.) I have found that Raw Coal failed to 

examine at least one entry of the left return air course in its entirety within seven days of its last 

examination of the area on March 30, 2015. Therefore, the Secretary has established a violation 

of the cited standard. 

b. Gravity 

Inspector Christian determined the violation was unlikely to result in injury or illness, but 

that if an injury or illness occurred, it could reasonably be expected to result in lost workdays or 

restricted duty. (Ex. S–1.) Christian also determined that ten persons would be affected by the 

violation, those being the miners working on the section and along the belts. (Id.; Tr. 33:17–22, 

40:7–20.) Respondent did not challenge these designations. I agree with Christian’s findings. At 

hearing, Christian explained that not examining the left return could lead the operator to fail to 

identify missing or incomplete stoppings or flooding in the return aircourse, which could in turn 

lead to contaminated air being redirected to the working section rather than out of the mine. (Tr. 

34:1–40:20.) This scenario, however unlikely, could lead the ten miners working on the section 

to inhale harmful dust, smoke, or methane. (Id.) I agree with and adopt Christian’s gravity 

determinations. 

 

39 FMSHRC Page 1692
c. Unwarrantable Failure and Negligence 

The Secretary asserts that Raw Coal’s conduct amounted to high negligence and was an 

unwarrantable failure. (Ex. S–1.) In support, the Secretary argues that Ciampanella admitted to 

not conducting the examination and therefore knew of the violative condition, and that the 

violation was extensive, long-lasting, obvious, and highly dangerous. (Sec’y Br. at 14–15.) In 

contrast, Raw Coal asserts that the negligence and unwarrantable designations are inappropriate 

because of the violation’s limited duration, extent, and prior history. (Resp’t Br. at 17.) 

In analyzing an unwarrantable failure, I must consider the Commission’s factors for 

determining aggravated conduct. See IO Coal Co., 31 FMSHRC at 1350–51. Although the 

danger posed by a violation “may be so severe that, by itself, it warrants a finding of 

unwarrantable failure[,] . . . the converse of this proposition – that the absence of significant 

danger precludes a finding of unwarrantable failure – is not true.” Manalapan Mining Co., 35 

FMSHRC 289, 294 (Feb. 2013). Instead, this factor must be “weighed . . . against the other 

relevant factors to determine whether the operator’s conduct under the circumstances amounted 

to an unwarrantable failure.” Id. In this case, the danger was neither a mitigating nor aggravating 

factor. The failure to conduct an exam of a return aircourse may expose miners to unknown 

hazards, but the eventual exam to abate this order did not uncover serious hazards and the 

violation was deemed unlikely to lead to serious injuries. Consistent with Commission case law, 

I must weigh this factor against the other relevant unwarrantable failure factors. The facts and 

circumstances surrounding this violation unveil multiple other aggravating factors. 

Most significantly, with regard to Raw Coal’s knowledge of the violation, Ciampanella 

admitted to Inspector Christian on April 7 that he had not conducted an exam the prior day, he 

lacked any record showing he or anyone else had been in the left return aircourse that week, and 

he did not protest to Christian that he had conducted (but failed to record) any part of the exam 

during the prior week (as he later did at hearing). (Tr. 17:17–18:7, 19:5–8, 22:1–8, 24:15–18, 

110:18–24, 276:3–7.) Strangely, when asked to accompany Christian down to the return 

aircourse, Ciampanella left Christian behind and hurried into the mine by himself. (Tr. 24:23–25: 

9.) Together, these facts indicate to me that Ciampanella not only knew he had not conducted a 

weekly exam of the left return aircourse, but also knew no one else in the mine had either. 

Ciampanella was a supervisor with the authority and responsibility to make the required 

examination. His knowledge of the violation and culpability, therefore, establish an aggravated 

lack of care on the part of the company. See Lopke Quarries, Inc., 23 FMSHRC at 711. 

Two other factors strongly point toward an unwarrantable failure determination: 

extensiveness and obviousness. Any official at the mine who checked either the examination 

book or tracking log entries that week would have immediately concluded, as Christian did, that 

no one had been in the left return. The fact that this failure constitutes a violation of MSHA’s 

weekly examination requirements would have also been obvious. This is a basic mandatory 

standard. Additionally, the violation was extensive in two respects. First, the left return aircourse, 

by itself, is undeniably extensive – so extensive, in fact, that according to Ciampanella’s own 

description, it could not typically be examined in a single day. (Tr. 249:3–10.) Second, the 

failure to examine a return aircourse also affects the entire mine, since return entry hazards can 

spill over into intake entries absent vigilant care and attention. (Tr. 39:6–24.) 

39 FMSHRC Page 1693
The other unwarrantable failure factors (duration, notice, and abatement) appear to be 

neither mitigating nor aggravating. The violation existed for slightly more than one shift, a 

duration which I do not find short enough to be mitigating, nor long enough to be particularly 

aggravating in the context of a weekly examination requirement. (Tr. 32:17–33:8.) Additionally, 

I do not find the evidence of a lack of notice from MSHA to be mitigating, when dealing with an 

obvious and known violation such as this one. (Tr. 118:1–12.) In considering the abatement 

factor, the Commission focuses on compliance efforts made prior to the issuance of the citation 

or order. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). The record does not support a 

finding of any abatement efforts made prior to the order’s issuance. Accordingly, I afford these 

factors no weight in my unwarrantable failure analysis. 

After considering and weighing all the factors, particularly the violation's obviousness 

and extensiveness, and the operator’s knowledge, I conclude that the violation was the result of 

the operator’s unwarrantable failure. For these same reasons, I also conclude that Raw Coal was 

highly negligent for failing to conduct the weekly exam. 

B. Order No. 9064481 – The Missing and Incomplete Stoppings Violation

1. Additional Findings of Facts 

The parties do not dispute that the second and third connecting crosscuts were safe for 

travel and did not contain permanent stoppings on the morning of April 21, 2015. The only 

factual disputes concern the first and fourth connecting crosscuts. Specifically, Respondent 

claims that the fourth crosscut was adequately plastered on one side and contained the type of 

holes common to stoppings, but not eight to ten feet wide as the Secretary has alleged. (Resp’t 

Br. at 18.) Respondent also claims that, contrary to the inspectors’ observations, the first crosscut 

was unsupported and not safe for travel at the time Raw Coal was cited. (Resp’t Br. at 20.) After 

weighing all the evidence, I find that all four connecting crosscuts outby the working face were 

in the conditions that Christian and LeMarr observed. 

 

Christian’s observations of an 8-to-10-foot hole, exposed wood, and missing plaster in 

the stopping for the fourth crosscut are supported not only by LeMarr’s testimony but also by 

Christian’s contemporaneous notes and drawings. (Tr. 48:8–12, 53:11, 54:10–15, 61:6–62:17, 

278:9–19; Exs. S–6, S–7.) Respondent’s lay representative labels the Secretary’s description of 

this stopping as “disgusting” and an “[e]mbellishment . . . contradicted by” all available 

evidence. (Resp’t Reply Br. at 5–6.) Respondent argues that Christian initially relied only on the 

missing stopping in the third connecting crosscut to establish a violation, allegedly not realizing 

that the crosscut was legally permitted to remain open at the time, but then, “[i]n an attempt to 

save the order [from being vacated after realizing his mistake], . . . included the 4th connecting 

crosscut” in his charge and made “an additional charge that the crosscut had a 8 to 10 foot 

opening.” (Resp’t Br. at 7; Resp’t Reply Br. at 6.) In support of this allegation, Respondent 

claims that the inspection notes did not contain any reference to the incomplete stopping’s holes, 

no document specified the size of these holes, and in a deposition Inspector Christian disclaimed 

reliance on the holes to sustain the order. (Resp’t Br. at 7, 18.) 

39 FMSHRC Page 1694
Respondent’s attempt to paint a conspiratorial picture falls flat, as this alleged conspiracy 

rests on several factual inaccuracies. First, Respondent’s argument that Order No. 9064481 relies 

only on the missing stopping in the third connecting crosscut to establish a violation appears 

premised on the phrase “three open crosscuts” in the order. (Resp’t Br. at 7.) In context, 

however, Order No. 9064481 is intended to convey that three crosscuts were fully open, while 

the fourth was only partially open. (See Ex. S–6 (“When observed there were three open 

crosscuts on the left return stopping line. Also, the fourth crosscut outby had not been 

completed.”).) 

Respondent’s lay representative is also mistaken in arguing that Christian’s deposition 

testimony did not mention relying on the problems with the fourth crosscut’s stopping in citing 

the operator. (Resp’t Br. at 18.) The specific portion of Christian’s deposition testimony cited by 

Respondent was ambiguous on this point, because Christian was cut off before he could fully 

answer the question posed. But, Christian later provided clarifying testimony fully consistent 

with the description in the order, noting the problems with both the third and fourth crosscut.11

(See Ex. R–8 at 33, 37; Tr. 154:21–155:3.) Thus, I conclude that Christian’s deposition 

testimony does not alter the order’s meaning. By including the issues with the fourth connecting 

crosscut in the body of Order No. 9064481, the Secretary provided clear notice to Raw Coal that 

those issues formed part of the basis for the order. And, contrary to Respondent’s claims, the 

body of Order No. 9064481 is not the only contemporaneous document that mentions these 

issues. The inspector’s contemporaneous notes and diagram also make reference to holes in the 

fourth stopping. (Ex. S–7 at 15.) In contrast, no such contemporaneous corroborating evidence 

exists for Raw Coal’s competing claims. (See, e.g., Ex. R–2 (documenting Ciampanella’s 

objections to Order No. 9064481 on the back of the order but not addressing the issues alleged in 

the order with the fourth connecting crosscut’s incomplete stopping.) While Christian’s notes 

and the order itself do not specify the exact size of the holes, Christian’s and LeMarr’s testimony 

were clear and consistent on this point: the hole (or opening) was 8-10 feet long, about half the 

width of the crosscut. Therefore, I credit Christian’s testimony regarding the fourth connecting 

crosscut and reject Respondent’s unsubstantiated conspiratorial allegations.12 

 11 During the deposition, Respondent’s lay representative asked Christian “Does the 

stopping that doesn’t have plaster on it . . . contribute to this order in any way?” Christian 

responded, “No. I mean, the stopping wasn’t finished. There [were] still holes in it, wasn’t --” 

but he was interrupted by the lay representative with an entirely different question before he 

could finish his answer. (Ex. R–8 at 33.) Later, Christian clarified that the violative condition 

was “excessive because of . . . the excessive amount of open crosscuts,” i.e., one stopping was 

missing “[a]nd the other one [was] not completed.” (Id. at 37.) 

 

12 In his post-hearing brief, Respondent’s lay representative attempts to put new 

information before me regarding the construction of stoppings in order to argue that the fourth 

connecting crosscut did not contain any holes. (See Resp’t Br. at 6.) As Respondent’s brief does 

not cite to any evidence in the record or to any other authority to support its highly technical 

description of the construction process, I agree with the Secretary’s characterization of this 

“testimony” as improper and give no weight to this description. (Sec’y Reply Br. at 2.) 

39 FMSHRC Page 1695
Regarding the first connecting crosscut, both parties introduced into evidence 

contemporaneous documents supporting their respective positions. To support its argument that 

the first crosscut was not fully cleaned, bolted, or safe for travel when the order was issued, Raw 

Coal first cites to a note that Ciampanella wrote on the evening after the exam denying the fact of 

the violation. (Ex. R–2.) Next, Raw Coal cites to contemporaneous preshift and onshift 

examination reports indicating the crosscut closest to the working face had not been bolted until 

well after the order was issued. (Ex. R–1.) The Secretary, in turn, cites to Christian’s 

contemporaneous notes and diagrams in support of his testimony that the first crosscut was 

available for travel when he arrived. (Ex. S–7 at 6–15.) 

I ultimately credit the testimony of Christian and LeMarr, which is supported by 

Christian’s contemporaneous notes and diagram. I recognize their testimony conflicts with at 

least the onshift exam report for the area from later that day and possibly the preshift report from 

the time of the inspection.13 However, based on Christian’s substantial expertise and experience 

with ventilation plans, and based on LeMarr’s clear and consistent corroborating testimony, I 

find Christian’s description of the first connecting crosscut more reliable and less susceptible to 

the risk of confusion, especially since irregularities in multiple preshift exam reports undercut 

Raw Coal’s argument about timing.14 (Tr. 9:22–13:6, 277:9–278:8.) Thus, I find that the first 

connecting crosscut was cut, bolted, and safe for travel when Christian issued Order No. 

9064481. I also credit Christian’s testimony that when asked for mitigating circumstances, 

Ciampanella responded, “Why should I install those stoppings, when I’m going to tear them back 

out tonight,” which I find indicative of Ciampanella’s knowledge of the violation. (Tr. 67:7–13.) 

 

 13 Respondent’s lay representative calls attention to this conflict and suggests the 

possibility of criminal penalties against his client if I resolve this credibility dispute in the 

Secretary’s favor: “If the preshift and on-shift reports are not true then two certified foremen 

have committed a felony,” which “may result in [] criminal charges against the offender[s].” 

(Resp’t Br. at 18–20.) MSHA now has all of the information it needs to pursue a criminal 

investigation. However, as the Secretary points out, Respondent’s lay representative has 

presented a “false dichotomy,” because judges routinely make credibility determinations 

“without resorting to accusations of criminal activity.” (Sec’y Reply Br. at 3.) 

 

14 The Secretary called into question the reliability of Raw Coal’s examination reports by 

pointing out irregularities with the preshift reports submitted into evidence by Respondent for 

Order No. 9020987. One preshift exam report for the Main area, signed and reported by Burb 

Blankenship on the morning of April 6, 2015, indicates that a preshift exam was conducted 

between 5:00 and 7:56 a.m. (Ex. R–3 at 1.) However, Raw Coal also introduced into evidence 

another preshift exam report for the same Main area conducted the very same morning, also 

signed and reported by Burb Blankenship, but indicating the exam was conducted between 4:30 

and 5:30 a.m. (Ex. R–3 at 2.) Ciampanella conceded that there was a “problem” with these 

reports, because conducting “two preshift examinations for the same morning” is “not the way 

business is done.” (Tr. 264:19–265:9.) While Raw Coal later presented a possible theory to 

explain this irregularity and the Secretary did not draw further attention to these discrepancies in 

his post-hearing briefs, Blankenship’s and Ciampanella’s clear discomfort with the information 

contained in these reports gives me pause in relying on Raw Coal’s examination reports to 

establish an accurate timeline of events. (Id.; Tr. 214:15–217:11.) 

39 FMSHRC Page 1696
2. Analysis and Conclusions of Law 

a. Violation 

 The Secretary alleges a violation of section 75.333(b)(1), which requires that ventilation 

control devices be built between intake and return air courses and maintained up to and including 

the third connecting crosscut outby the working face. (Ex. S–6.) Although this requirement does 

not apply to rooms that are 600 feet or less in length or to sections specifically exempted by an 

approved ventilation plan, Christian explained the latter exception did not apply to the cited area, 

and Raw Coal has not argued that either exception applies. (Tr. 63:3–66:24.) The standard does 

not specify the exact timing for when the stopping for the third connecting crosscut must be 

completed, but MSHA has issued guidance in a Procedure Instruction Letter (“PIL”) clarifying 

that “permanent stoppings installed to separate intake and return aircourses must be completed in 

the third crosscut outby the face by the time the face crosscut [i.e., the first crosscut] is cleaned, 

bolted, and ready for travel,” and both parties agree that this interpretation governs in this 

proceeding. (Exs. S–19, S–20; Sec’y Br. at 22; Resp’t Br. at 18.) 

I conclude that Raw Coal violated the standard by failing to build a stopping in the third 

connecting crosscut upon cutting, cleaning, and bolting the first connecting crosscut prior to the 

inspection, and by failing to maintain the fourth connecting crosscut in a condition that complied 

with the standard’s requirements. The Secretary proved that this stopping was improperly 

maintained in that it lacked necessary plaster, contained an opening of 8–10 feet, and short 

circuited enough intake air into the return entry to result in legally insufficient airflow (7,000 

CFM vs. 12,000 CFM) to the working face. The missing stopping in the third connecting 

crosscut and the improperly maintained stopping in the fourth connecting crosscut lead me to 

conclude that Raw Coal only maintained its stopping line up to the fifth crosscut outby the 

working face. 

Therefore, I find that the Secretary has satisfied his burden for proving a violation. 

b. Gravity 

 Christian determined that the violation was unlikely to result in injury or illness, but that 

in the event of an injury, lost workdays or restricted duty injuries could reasonably be expected. 

(Ex. S–6.) He determined that missing or incomplete stoppings could redirect harmful return air 

to a working section, leading the nine miners working in the section to inhale harmful dust, 

smoke, or methane. (Tr. 71:17–72:7.) I agree with this analysis and affirm Christian’s gravity 

determinations, which were undisputed by Raw Coal. 

 c. Unwarrantable Failure and Negligence 

 The Secretary designated this violation as an unwarrantable failure and characterized 

Raw Coal’s negligence as high. (Ex. S–6.) In support, the Secretary alleges that Raw Coal knew 

of and permitted the violation, was on notice that greater efforts were necessary for compliance, 

and that the violation was highly dangerous, obvious, extensive, and existed for an extended 

period of time. (Sec’y Br. at 30–33.) Respondent’s lay representative largely passes on his 

opportunity to contest the negligence or unwarrantable nature of the violation, stating, “Since the 

39 FMSHRC Page 1697
Responde[nt] believed there was no violation[,] any question regarding mitigating circumstances 

would be [a] mockery of the Respondent’s good faith belief.” (Resp’t Reply Br. at 6.) His reply 

brief does, however, address the Secretary’s notice argument briefly, labeling the use of a recent 

prior citation to establish notice as “preposterous.” (Id.) 

While the IO Coal and Consolidation Coal factors are useful for determining whether an 

operator’s culpability rises to the level of “indifference,” “serious lack of reasonable care,” or 

“reckless disregard” that generally characterize an unwarrantable failure, it is important to note, 

before addressing any of those factors, that this violation involves intentional misconduct. 

“Intentional misconduct, whether by commission or omission, is similar in terms of culpability to 

. . . indifferent, willful, or knowing behavior . . . [and therefore] is a form of unwarrantable 

failure for purposes of the Mine Act.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 

(Feb. 1991). I have reached the conclusion that this misconduct was intentional based on 

Ciampanella’s statement to Christian, “Why should I install those stoppings, when I’m going to 

tear them back out tonight when I begin pillaring?” (Tr. 67:7–13.) Like Christian, I interpret this 

statement to mean that Raw Coal knowingly and deliberately failed to construct and finish 

necessary stoppings near the working face because it knew it would be retreat mining 

imminently and therefore did not view these safety measures as being worth the effort. This, 

however, was not the company’s call to make. An operator cannot pick and choose which 

standards to comply with based upon its own determination that the hazards addressed by those 

standards may be tolerated for a limited amount of time. 

Placing these facts in the context of the Commission’s unwarrantable factors, I conclude 

that not only does Ciampanella’s statement establish the operator’s knowledge of an obvious 

violation, but it also suggests that the company had taken no steps to abate the violation prior to 

being cited. In addition, as a supervisor, Ciampanella’s involvement in the creation of the 

violative condition is an independent factor which establishes an aggravated lack of care. 

Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016). 

In assessing several of the other unwarrantable factors, I find it useful to distinguish 

between the two violative conditions cited in the order. As noted previously, it is unclear whether 

the first connecting crosscut was made available for travel during the previous night’s shift, or 

only immediately prior to the inspection. (Tr. 59:3–61:4.) Thus, the third connecting crosscut 

may have impermissibly lacked a permanent stopping for only a brief period of time and the 

omission may not have been obvious during that period. However, I conclude that the incomplete 

stopping in the fourth connecting crosscut would have been obvious to examiners for a much 

longer period of time. The hole (or opening) was half the width of the stopping, and Christian 

credibly explained that the stopping for this crosscut remained incomplete for at least 10, and 

possibly up to 24, hours. (Tr. 48:8–12, 61:6–62:17, 180:13–181:1.) Therefore, taken together, the 

violative conditions were obvious and existed for an extended period of time. I also conclude that 

the violation was extensive, given that Raw Coal violated the standard in two separate crosscuts 

and that the lack of permanent ventilation controls led to insufficient airflow to the section face. 

(Tr. 53:17–54:12.) Although this lack of airflow was not reasonably likely to lead to serious 

injury, and thus the degree of danger is not an aggravating factor, the duration, obviousness, and 

extensiveness of the violation are. 

39 FMSHRC Page 1698
Raw Coal was also on notice that greater efforts were necessary for compliance. Christian 

had issued citations for missing stoppings and inadequate ventilation roughly two weeks prior 

and had discussed the same issues with some, but not all, of the foremen involved in the subject 

order. (Tr. 54:16–56:23, 73:20–23; Ex. R–8 at 14–15.) Raw Coal now disputes whether one of 

those prior citations was in fact justified. (Resp’t Rep. Br. at 6.) However, it does not dispute that 

the citations were issued, that Raw Coal paid penalties for them, or that the resulting 

conversations with MSHA occurred. (See id.) Those are the more relevant considerations when 

analyzing the extent to which the operator was placed on notice that greater efforts were 

necessary for compliance. See Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 3080 n.5 

(“[I]t is well settled that we examine the operator’s history of violations, warnings from 

inspectors, and other forms of specific warnings to determine if the operator has been placed on 

notice of a persistent unsafe condition or practice at its mine.”). Notice which the operator finds 

unwarranted is notice nonetheless. 

Raw Coal’s lay representative also argues, “An admonishment from MSHA to the 

Respondent that greater effort is needed from a one time issuance of a non-significant and 

substantial violation is preposterous.” (Resp’t Reply Br. at 6.) However, in rejecting a related 

argument, the Commission recently clarified that “it is not pertinent to the analysis of the notice 

factor in unwarrantable failure determinations that the prior violations were not designated as 

S&S.” Manalapan Mining Co., 35 FMSHRC at 295–96. Similarly, in this matter, the non-S&S 

nature of the prior citation does not invalidate the notice it provided. 

After examining the facts of this violation and the relevant factors, I conclude that the 

Secretary met his burden of proving that the violation was properly designated as an 

unwarrantable failure and that Raw Coal’s negligence was properly characterized as high. 

C. Order No. 9064486 – The Ventilation Plan Violation 

1. Additional Findings of Facts 

Christian detailed a number of discrepancies between the ventilation controls at the mine 

as he observed them on April 22, and the ventilation controls displayed on the mine’s most 

recently revised ventilation plan map. (See generally Tr. 81:16–96:6.) Raw Coal, for the most 

part, does not deny these discrepancies existed, but instead disputes their cause and effect. 

(Resp’t Br. at 20–21.) Raw Coal does not deny that an entire line of stoppings was found exactly 

one entry over from where the ventilation plan indicated they should be. But, whereas Christian 

testified that the stoppings had been physically moved from their approved location and 

remnants of those stoppings were still stuck to the ribs and walls of the crosscuts, indicating 

where they had once been (Tr. 95:10–24), Mine Superintendent Campbell denied the stoppings 

had ever been moved or that there were any visible remnants to support Christian’s belief. (Tr. 

230:15–231:24.) In addition, Raw Coal denies that the ventilation controls created a sweep air 

arrangement or blocked the passage of return air down the right side. (See Resp’t Br. at 20.) This 

denial reflects significant disagreement about whether the working section at the time of the 

inspection had been sufficiently developed to provide a path for return air to flow down the right 

side. (Compare Tr. 192:15–193:13 (Christian’s testimony that a right return entry had not been 

39 FMSHRC Page 1699
developed yet), with Tr. 236:18–237:11 (Campbell’s testimony that air was split down the left 

return and right bleeder entry); see also Tr. 290:1–17 (LeMarr’s testimony that he was not sure).) 

 On each of these points, I credit Christian’s observations. Once again, the MSHA 

inspector had significant experience developing and complying with mine ventilation plans 

going back to his time as a mine superintendent, which lends credibility to his testimony. (Tr. 

9:22–13:6.) In addition, LeMarr fully and credibly corroborated Christian’s observations of 

leftover materials where the stoppings had once been, including blocks and plaster still stuck to 

the mine roof and ribs. (Tr. 279:15–280:6.) Having examined the map of the section, I determine 

that this change eliminated the entire right return entry by altering the direction of air in that 

entry to intake air. (See Exs. S–14, S–15.) 

Further, I credit Christian’s testimony that the working section had not been developed 

sufficiently to allow for return air to proceed down a different entry on the right side, and that the 

ventilation controls created a sweep air arrangement while Raw Coal developed that entry.15 (Tr. 

192:15–194:13.) Lastly, neither party disputes that the altered arrangement created a dead air 

space near the section, and I thus find that to be the case as well. (See Resp’t Br. at 12.) 

 

2. Analysis and Conclusions of Law 

a. Violation 

 Order No. 9064486 alleges a violation of section 75.370(a)(1), which requires operators 

to (1) develop and follow an approved ventilation plan; (2) that is designed to control methane 

and respirable dust and shall be suitable to the mine’s conditions and mining system; and (3) 

consists of the plan content prescribed in section 75.371 and a map as prescribed in section 

75.372. 30 C.F.R. § 75.370(a)(1). Portions of the map containing information required under 

section 75.371 are subject to the district manager’s approval. Id. Section 75.371’s plan content 

provisions include “section and face ventilation systems used . . . [and] drawings illustrating how 

each system is used.” Id. § 75.371(f). In addition, “any intentional change to the ventilation 

system that alters the main air current or any split of the main air current in a manner that could 

materially affect the safety and health of the miners” must be approved by a district manager in a 

proposed ventilation plan before implementation. Id. § 75.370(d). In a Program Information 

Bulletin, MSHA lists examples of intentional changes that would materially affect the safety or 

health of miners, including “changing the direction of air in an air course.” (Ex. S–21.) 

 15 Respondent’s lay representative argues in his post-hearing brief that air readings taken 

a day before the inspection confirm that air was split in the section and cites to one of Raw 

Coal’s own exhibits for this proposition. (Resp’t Br. at 11, 20; Ex. R–7.) However, the record 

lacks any testimony to support this claim, and fails to provide the necessary context for the 

information contained in the cited exhibit. I agree with the Secretary that “Respondent had ample 

opportunity to ask questions regarding this claim on direct and cross examination but failed to do 

so.” (Sec’y Reply Br. at 3–4.) Such testimony might have helped clarify exactly where these 

readings were taken in relation to the missing and moved ventilation controls and how relevant 

or significant the measurements listed are. 

39 FMSHRC Page 1700
The mine’s ventilation plan was approved in 2012 but was regularly amended in 

subsequent years following requests for revision from the operator. (Ex. S–12.) Prior to the 

order, MSHA had approved a revision to the mine’s ventilation map and incorporated it into the 

approved ventilation plan on April 17, 2015, where it was then enforceable as part of the 

requirements of section 75.370(a)(1). (Ex. S–22.) At the time of the inspection, the ventilation 

map for the most recently approved revisions displayed a line of stoppings between two entries 

separating intake air from return air. (Ex. S–14.) I conclude that Raw Coal failed to follow its 

ventilation plan by both removing this line of stoppings and reversing the direction of air in what 

had been a return entry. The company also violated the ventilation plan by adding unapproved 

temporary and permanent ventilation controls that blocked access to the right return air course, 

created a dead air space, and ensured that intake air was now sweeping across the face in one 

direction rather than splitting in multiple directions.16 Because these changes materially affected 

the safety or health of miners by increasing the risk of methane and contaminated air reaching 

the working section, Raw Coal was required to stick to the ventilation system diagrammed in its 

approved ventilation map until it sought and received approval for any desired changes. (Tr. 

102:1–105:11.) 

 

Respondent offers two arguments for why it believes it complied with its ventilation plan. 

It first argues that “[t]he ventilation base plan explicitly allows the operator to vary stopping 

lines and number of entries.” (Resp’t Br. at 21 (citing Ex. S–12 at 18).) In other words, Raw Coal 

argues it is not required to strictly follow the layout of the ventilation controls in its approved 

ventilation map; rather, it may vary the placement of its stopping lines and the location of return 

and intake entries as it sees fit. In support of this contention, Respondent cites to an illustrative 

diagram contained in the ventilation base plan. (Id.) The diagram is titled “Typical Face 

Ventilation” and displays a generic layout of entries, crosscuts, and ventilation controls that 

might be found in any mine, with notes and symbols indicating how ventilation controls should 

normally operate in such conditions. In order to alert the reader that this diagram is merely 

illustrative, the page notes that “Stopping lines and number of entries shown are typical and may 

vary.” (Ex. S–12 at 18.) But, Raw Coal zeroes in on this language under the mistaken belief that 

it exempts the operator from the site-specific map’s requirements. (Resp’t Br. at 21.) 

 I conclude that the diagram and accompanying notes for the “typical” ventilation map 

included in the base plan do not modify the actual requirements in the mine’s revised sitespecific ventilation plan, from which language about varying stoppings or entries is entirely 

absent. (Ex. S–22.) The ventilation base plan’s cited language does not affect Raw Coal’s 

obligations to comply with the requirements of the most recently approved ventilation map. 

Simply put, Raw Coal requested changes to its ventilation plan and documented those changes 

on a revised map; it must now abide by those approved changes. No variations are allowed. 

 16 Although the body of Order No. 9064481 detailed many of these problems, 

Respondent notes that the order did not explicitly mention that the operator had switched to a 

sweep air plan. (Resp’t Br. at 11.) Yet, by noting that the operator had removed a line of 

stoppings (that had previously regulated the flow of air in the right return aircourse) and added 

an unapproved stopping in an “area that the section was using for a split of the return,” the order 

documented the conditions that created the sweep air arrangement. (Ex. S–13.) Considering how 

many problems there were with the ventilation system at the time, I find that this description 

adequately alleged the overall violative condition that formed the basis of the order. 

39 FMSHRC Page 1701
Even if some variation were permitted, I conclude that moving a line of stoppings such 

that it completely eliminates a return air course, changes the direction of air in the return entry, 

switches to a sweep air plan, and creates a dead air space (thereby materially affecting the safety 

and health of miners) does not constitute an acceptable “variation” of the ventilation map’s 

requirements. This is especially true, as even the base plan map that the company references 

applies only to “split ventilation” by its own explicit terms. (See Ex. S–12 at 18-20.) 

 

Raw Coal also argues that the most recent revised plan “was not specifically related to 

ventilation controls” but instead was merely intended “to change the bleeder block travel ways to 

monitoring points.” (Resp’t Br. at 20–21.) According to the operator’s stated understanding of 

the plan, the ventilation controls did not have to be installed in the areas designated on the map 

until after Raw Coal had finished cutting through the section and connecting it to the bleeder 

entry, and since the operator was cited only five days after the revised plan was approved, it was 

not given enough time to accomplish this set of tasks. (Id.) 

I agree that the revised plan relates to Raw Coal’s attempt to change the bleeders to 

monitoring points; but, consistent with Christian’s understanding of the plan, I do not accept 

Raw Coal’s argument that the revised ventilation plan’s specific ventilation control requirements 

were effectively irrelevant until it had finished completing that other task. (Tr. 183:3–185:6.) The 

revised plan did not set forth any such conditions as to the order in which those tasks should be 

completed, and the operator has not cited to any other evidence or authority supporting its 

understanding of the plan. (See Ex. S–22.) Indeed, Raw Coal’s positon—that it may mine first 

and worry about ventilation later—undermines the entire purpose of having a ventilation system 

in place and amounts to a complete reversal of the appropriate process. Raw Coal’s failure to 

comply with the plan created hazards independent of whether or not the bleeder travel ways had 

been developed yet. (Tr. 103:1–105:7.) Thus, I determine that Raw Coal should have brought its 

ventilation controls into compliance with the plan as soon as the revisions were approved by 

MSHA and received, i.e., five days earlier. (Tr. 257:15–23.) Its failure to do so establishes a 

violation of the standard. 

b. Gravity 

 Raw Coal did not dispute the gravity of the violation. Christian designated the violation 

as unlikely to lead to an injury, but found that lost workdays or restricted duty injuries to nine 

miners could be reasonably expected were an injury to occur. (Ex. S–13.) This was mainly due to 

the remote possibility that dust, smoke, or methane could travel from worked-out areas through a 

regulator and into the entry that had once been a return entry but now carried common intake air 

to the working section, thereby leading the nine miners working in that section to breathe in the 

harmful air. (Tr. 103:1–105:7.) Once again, I affirm these undisputed gravity designations. 

 c. Unwarrantable Failure and Negligence 

In addressing the unwarrantable failure factors for Order No. 9064481, the Respondent’s 

lay representative explains that Raw Coal offered no mitigating circumstances to Christian 

because they would have fallen on deaf ears and may have only helped to support an 

unwarrantable designation. (Resp’t Br. at 22.) The purpose of asking for mitigating 

39 FMSHRC Page 1702
circumstances of course is not entrapment. It is meant to provide the inspector, and any 

reviewing body, with all the factual background necessary to make an informed decision about 

the negligence and unwarrantability of an alleged violation. Accordingly, I will consider such 

factors below, based on the record I have before me. 

The Secretary designated this violation as an unwarrantable failure, characterizing Raw 

Coal’s negligence as high. (Ex. S–13.) In support, the Secretary points to “the knowledge of the 

operator that the plan had been violated, as well as the violation’s extensiveness, obviousness, 

duration, and high degree of danger.” (Sec'y Br. at 40.) In response, Raw Coal asserts that it had 

a good faith belief it was following its approved ventilation plan, and that the plan was confusing 

at the stage of the mining process in which the company was engaged. (Resp’t Br. at 22.) As 

these arguments go to the operator’s knowledge and the obviousness of the violation, it seems 

appropriate to begin the unwarrantable failure analysis there. 

I conclude that Respondent had knowledge of the violation. In arguing to the contrary, 

and echoing the beliefs of Mine Superintendent Campbell, the operator’s lay representative 

states, “The revised plan used by the inspector was approved by the district manager on April 17, 

2015 [and] may not have been received by the respondent prior to the order being issued.” 

(Resp’t Br. at 23; see also Tr. 234:6–15.) Yet, Christian testified that the revised plan was posted 

on the mine’s bulletin board at the time of the inspection. (Tr. 186:3–5.) This testimony also 

corroborates foreman Ciampanella’s belief that the mine received the approved revisions on the 

very same day they were approved, and thus I credit Ciampanella’s understanding. (Tr. 257:15–

23.) 

 

Curiously, Raw Coal now claims, “The approved map[s] provided by the Secretary and 

the [inspector] are confusing even for reasonable persons with knowledge of ventilation plans.” 

(Resp’t Br. at 22.) This argument obscures the fact that the revised map was drafted and 

submitted for approval by Raw Coal itself. (Tr. 97:2–22, 106:5–9; Ex. S–22.) It is difficult to 

believe Raw Coal had trouble comprehending its own plan, as it now claims, or to understand 

how this fact would mitigate against an unwarrantable failure finding. The Secretary correctly 

notes that an operator’s good faith belief that it was in compliance with a cited standard must be 

objectively reasonable, see IO Coal, 31 FMSHRC at 1356–60, and the obviousness of this 

violation renders Raw Coal’s beliefs anything but that. (Sec’y Reply Br. at 4.) The company’s 

purported misreading of its base ventilation plan and assumption that the revised map’s 

ventilation control requirements did not go into effect until after the company had finished 

developing a bleeder travelway do not make its beliefs any more reasonable. Further, my 

findings—that Raw Coal physically removed the required stoppings from locations where they 

had been approved and relocated them to different locations (a process that would have taken at 

least the same 27 hours required for the violation’s abatement)—lead me to conclude that Raw 

Coal had plenty of time to consider the safety ramifications and legal consequences of its new 

arrangement. 

Most of the remaining unwarrantable failure factors support the conclusion that Raw 

Coal’s conduct exhibited an aggravated lack of care. Notably, the extent of the violation was 

significant, with missing or improperly placed ventilation controls in approximately two dozen 

different crosscuts, impacting the entire working section. (Compare Ex. S–14, with Ex. S–15.) 

39 FMSHRC Page 1703
Consequently, correcting the cited condition required 33 miners working approximately 27 hours 

over the course of three shifts. (Tr. 107:14–20.) As noted, a violation that extensive would be 

hard to miss, and thus its extensiveness and obviousness are both aggravating factors. Because 

Ciampanella believed the mine received the approved revisions the day they were approved, five 

days before the issued order, and because the operator works three shifts per day, the violation 

likely existed for approximately fifteen shifts, a duration that also supports an unwarrantable 

failure designation. (Tr. 32:1, 185:7–24, 257:15–23.) All of these facts lead me to the additional 

conclusion that the operator made no effort to abate the condition prior to being cited. 

 

 While I do not find the danger of the violation or prior notice that greater efforts were 

necessary for compliance to be mitigating or aggravating factors, every other factor points to the 

conclusion that Raw Coal’s violation was the result of its high negligence and its unwarrantable 

failure to comply with the standard. I therefore conclude that Raw Coal exhibited high 

negligence and that the violation was an unwarrantable failure.

D. Civil Penalties

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil 

penalty: (1) the operator's history of previous violations; (2) the appropriateness of the penalty 

relative to the size of the operator's business; (3) the operator's negligence; (4) the penalty's effect 

on the operator's ability to continue in business; (5) the violation's gravity; and (6) the 

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

notification of a violation. 30 U.S.C. § 820(i). 

The parties have stipulated that the operator abated the cited conditions in good faith. 

(Joint Ex. 1.) Raw Coal has not alleged that the proposed penalties would adversely affect its 

ability to continue in business. The Commission has held that “[i]n the absence of proof that the 

imposition of authorized penalties would adversely affect [an operator's] ability to continue in 

business, it is presumed that no such adverse [e]ffect would occur.” Sellersburg, 5 FMSHRC at 

294 (citing Buffalo Mining Co., 2 IBMA 226, 247–48 (Sept. 1973)); accord Spurlock Mining 

Co., 16 FMSHRC 697, 700 (Apr. 1994). I further note that Sewell Mine B was a moderately 

sized mine, producing 97,208 tons of coal in 2016. (Joint Ex. 1.) In the 15 months preceding the 

issuance of each violation, Raw Coal was issued 78 violations, and, during that period, it had 

zero previous violations of the cited standard in Order No. 9020987, one other violation of the 

cited standard in Order No. 9064481, and eight other violations of the cited standard in Order 

No. 9064486. (Exs. S–9, S–17, R–6.) I have determined that the gravity of the violations was 

non-S&S, but that the violations were unwarrantable failures and the result of the operator’s high 

negligence. After considering these factors and the evidence as a whole, I determine that the 

 

39 FMSHRC Page 1704
minimum statutory penalty of $4,000.00 is appropriate for each of the three section 104(d)(2) 

orders. See 30 U.S.C. § 845(d). 

VI. ORDER 

 

 Respondent Raw Coal Company, Inc. is hereby ORDERED to PAY a penalty of 

$12,000.00 within 40 days of the date of this decision. 

 /s/ Alan G. Paez 

 Alan G. Paez 

 Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Mail – Return Receipt Requested) 

 

Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue 

North, Suite 420, Nashville, TN 37219-1823 

(johnson.eric@dol.gov) 

James F. Bowman, Safety Consultant, P.O. Box 99, Midway, WV 25878-0099 

(jimbowman61@hotmail.com) 

/rd 

39 FMSHRC Page 1705

ADMINISTRATIVE LAW JUDGE ORDERS
39 FMSHRC Page 1706
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 2, 2017 

 

AMENDMENT OF ORDER OF TEMPORARY REINSTATEMENT

Before: Judge Feldman 

 A summary decision was issued on July 12, 2017, granting the application for temporary 

reinstatement filed by the Secretary, pursuant to section 105(c)(2) of the Federal Mine Safety and 

Health Act of 1977 (the Mine Act or Act), 30 U.S.C. § 815(c)(2), on behalf of Stacey Wayne 

Puckett against Panther Creek Mining, LLC (Panther Creek). 38 FMSHRC __ (July 12, 2017) 

(ALJ). The reinstatement order required Panther Creek to immediately reinstate Puckett to his 

former position as a fireboss, or to an equivalent position, at the same rate of pay and benefits he 

received immediately prior to his discharge, and with the same or equivalent assigned duties. 

 On July 27, 2017, the parties advised the Commission that, effective July 12, 2017, they 

have agreed to economically reinstate Puckett in lieu of his temporary reemployment. Letter 

from Melanie J. Kilpatrick to Judge Feldman (July 27, 2017). Pursuant to their agreement, during 

the economic reinstatement period, “Puckett will be paid his full rate of pay . . . [including] 

entitle[ment] to all benefits he would otherwise normally receive.” The parties reserve the right 

to request actual reinstatement at any time after a reasonable notice period. 

ORDER 

In view of the above, consistent with the terms of the parties’ agreement, IT IS

ORDERED THAT Panther Creek shall economically reinstate Stacey Wayne Puckett, with 

payment of backpay and benefits as of July 12, 2017. 

Puckett’s economic reinstatement shall not prejudice Panther Creek’s right to contest 

Puckett’s discrimination complaint that currently is being investigated by the Secretary. The 

Secretary should endeavor to complete, as soon as practicable, his investigation so that this 

matter may proceed to an evidentiary hearing on the merits. If the Secretary, upon investigation, 

finds that the provisions of section 105(c) have not been violated, he shall file a motion to vacate 

SECRETARY OF LABOR, 

U.S. DEPARTMENT OF LABOR on 

behalf of, STACEY WAYNE PUCKETT, 

 Complainant 

 v. 

PANTHER CREEK MINING, LLC 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEVA 2017-426 

Mine: American Eagle Mine 

Mine ID: 46-05437 

39 FMSHRC Page 1707
the underlying Order of Temporary Reinstatement. Commission Rule 45(g), 29 C.F.R. § 

2700.45(g). Alternatively, Panther Creek may move to vacate this temporary reinstatement order 

if the Secretary declines to prosecute Puckett’s complaint pursuant to section 105(c)(2) of the 

Mine Act. Id. An order dissolving the underlying order of reinstatement shall not bar the filing 

by Puckett of a discrimination complaint on his own behalf pursuant to section 105(c)(3) of the 

Act. 30 U.S.C. § 815(c)(3). 

If the Secretary elects to file a discrimination complaint on behalf of Puckett pursuant to 

section 105(c)(2) of the Mine Act, economic reinstatement/temporary reinstatement shall remain 

in effect until the merits of the Secretary’s 105(c)(2) complaint become final. 30 U.S.C. § 

815(c)(2) 

 /s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Stacy Wayne Puckett, 1016 Hopkins Road, Danville, WV 25053 

Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the Regional Solicitor, U.S. 

Department of Labor, 201 12th Street South, Arlington, VA 22202-5450 

Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 

39 FMSHRC Page 1708
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 

August 28, 2017 

 

ORDER DENYING MOTION TO REMAND FOR REASSESSMENT

Before: Judge McCarthy 

 This case is before me on a Petition for the Assessment of Civil Penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (1994). Currently 

pending are Respondent’s Motion to Remand for Reassessment, the Secretary’s Response 

(Opposition), and Respondent’s Reply. For the reasons set forth below, Respondent’s Motion to 

Remand for Reassessment is denied. 

I. Background 

 This matter arises from three violations issued under section 104(d)(1) of the Mine Act. 

Citation No. 9044780 alleges a significant and substantial (“S&S”) violation of 

30 C.F.R. § 75.400.1 Ex. A, Petition for the Assessment of Civil Penalties, Docket No. KENT 

2017-0183. Order No. 9044781 alleges that the mine examiner performed an inadequate on-shift 

examination of a head drive and tailpiece in violation of 30 C.F.R. § 75.362(b).2

 The Secretary 

designated the alleged violation as S&S, reasonably likely to result in injuries resulting in lost 

 1

 Section 75.400 provides 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.” 30 C.F.R. § 75.400. 

2

 Section 75.362(b) requires, in relevant part, that, “[a] person designated by the operator 

shall conduct an examination and record the results and the corrective actions taken to assure 

compliance with the respirable dust control parameters specified in the approved mine 

ventilation plan.” 30 C.F.R. § 75.362(b). 

R. ALEXANDER ACOSTA, 

SECRETARY OF LABOR, MINE 

SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

KENAMERICAN RESOURCES, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2017-0183 

A.C. No. 15-17741-433281 

Mine: Paradise #9 

39 FMSHRC Page 1709
workdays or restricted duty for one person, and the result of Respondent’s high negligence. The 

Secretary also designated the violation in Order No. 9044781 as an unwarrantable failure to 

comply with section 75.362(b). Id.; see also Narrative Findings for a Special Assessment, Order 

No. 9044781, Petition for the Assessment of Civil Penalties, Docket No. KENT 2017-0183. 

Order No. 9049726 alleges that the pre-shift examinations of the No. 9 entry were not accurately 

recorded for two days in violation of 30 C.F.R. § 75.360(g).3 The Secretary designated the 

alleged violation as S&S, reasonably likely to result in injuries resulting in lost workdays or 

restricted duty for two miners, and the result of Respondent’s high negligence. The Secretary 

designated the violation in Order No. 9049726 as an unwarrantable failure to comply with 

section 75.360(g). Ex. A; see also Narrative Findings for a Special Assessment, Order No. 

9049726, Petition for the Assessment of Civil Penalties, Docket No. KENT 2017-0183. 

The Secretary proposed the following civil penalties: $4,623 for Citation No. 9044780; 

$12,300 for Order No. 9044781; and $55,200 for Order No. 9049726. The proposed civil penalty 

for Citation No. 9444780 was calculated according to the Secretary’s Criteria and Procedures for 

Proposed Assessment of Civil Penalties. See 30 C.F.R. Part 100. Pursuant to section 100.5, 

however, the Secretary elected to waive the regular penalty assessments in favor of special 

assessments for Order Nos. 9044781 and 9049726.4 Id. Both orders were specially assessed 

using the Secretary’s General Procedures for Special Assessments (“General Procedures”), 

which have not been published in the Code of Federal Regulations. Secy’s Response at 2; see

U.S. Dep’t of Labor, Mine Safety and Health Administration, General Procedures, 

https://arlweb.msha.gov/PROGRAMS/assess/SpecialAssess/assessment%20procedures.PDF

(last accessed Aug. 29, 2017). 

KenAmerican filed its Motion to Remand for Reassessment contesting the special 

assessment process and seeking an Order remanding the two proposed special assessments for 

reassessment without reference to or reliance upon the Secretary’s General Procedures. Motion 

to Remand for Reassessment at 1. Respondent argues that the General Procedures remove all 

meaningful discretion, and as a result, the General Procedures are substantive or legislative rules 

under the Administrative Procedure Act’s (“APA”) formal notice and comment rulemaking 

requirements. See 5 U.S.C. §§ 551-584; Mot. at 2. KenAmerican is not, however, challenging the 

Secretary’s discretion under section 100.5 to decide whether to regularly assess or specially 

assess a particular violation. Mot. at 2. 

 3

 Section 75.360(g) provides, in relevant part: 

A record of the results of each preshift examination, including a record of 

hazardous conditions and violations of the nine mandatory health or safety 

standards and their locations found by the examiner during each examination, and 

of the results and locations of air and methane measurements, shall be made on 

the surface before any persons, other than certified persons conducting 

examinations required by this subpart, enter any underground area of the mine. 

30 C.F.R. § 75.360(g). 

4

 Section 100.5 deals with determinations of penalty amounts and special assessments. 

30 C.F.R. § 100.5 

39 FMSHRC Page 1710
 In his Response, the Secretary asserts that the General Procedures are a general statement 

of policy exempt from notice and comment. See 5 U.S.C. § 553(b)(3)(A); Resp. at 4-7. In 

particular, the Secretary contends that he maintains significant discretion in determining penalty 

assessments because the General Procedures account for varying facts and circumstances. Resp. 

at 5-7. 

II. Jurisdiction 

The Commission possesses jurisdiction to rule on the validity of the General Procedures. 

The Commission has previously concluded that it had jurisdiction to “require the Secretary to repropose his penalties” in limited circumstances. Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673, 679 (April 1987). When the “Secretary's proceeding under Part 100 is a legitimate concern 

to a mine operator, and the Secretary's departure from his regulations can be proven by the 

operator, then intercession by the Commission at an early stage of the litigation could seek to 

secure Secretarial fidelity to his regulations and possible avoidance of full adversarial 

proceedings.” Id. at 680. 

The Commission held in Drummond that while section 101(d) of the Mine Act vests 

exclusive jurisdiction over challenges to the validity of promulgated “mandatory safety and 

health standards” to the Courts of Appeal, section 101(d) does not state or imply that this 

exclusive jurisdiction extends to non-binding agency pronouncements. 30 U.S.C. § 811(d); 

Drummond Company, Inc., 14 FMSHRC 661, 673-74 Fn.14 (May 1992) (the Commission 

examined both the language of the statute and Congressional intent). In addition, the 

Commission emphasized that section 101(d) confers exclusive jurisdiction only when a 

mandatory standard is promulgated under section 101 of the Act. See Brody Mining, 36 

FMSHRC 2027, 2035 (Aug. 2014). 

In cases where the operator contests the Secretary’s proposed civil penalty under section 

105(d), the Commission has held that “where the statute creates Commission jurisdiction, it 

endows the Commission with a plenary range of adjudicatory powers to consider issues . . . to 

dispose fully of cases committed to Commission jurisdiction.” Drummond, 14 FMSHRC at 674. 

Section 105(d) of the Mine Act also authorizes the Commission to direct “other appropriate 

relief,” which includes declaratory relief in contest proceedings. Id.

As the General Procedures are not mandatory safety and health standards promulgated 

under section 101 of the Mine Act, they are outside the exclusive jurisdiction of the Courts of 

Appeal. Further, it is appropriate for the Commission to determine whether the General 

Procedures conform to section 100.5 in order to fully dispose of this matter. As a result, the 

Commission has jurisdiction over the Respondent’s Motion to Remand for Reassessment. 

III. Procedure 

 While the Commission and its judges have jurisdiction over challenges to informal 

procedures, the Commissions has limited the timeframe in which such challenges may 

appropriately be considered. In Youghiogheny & Ohio Coal Co., the Commission deemed it 

appropriate for an operator, prior to a hearing, to have an opportunity to “establish that in 

39 FMSHRC Page 1711
proposing a penalty the Secretary failed to comply with his Part 100 penalty regulations.” 9 

FMSHRC 673, 679-80 (1987). The Commission in Drummond further clarified that it would be 

inappropriate to require the Secretary to re-propose a penalty “where a hearing on the merits of 

the penalty had already been held before a Commission judge.” 14 FMSHRC at 677. Thus, the 

most suitable time to seek an order remanding for reassessment is before a hearing on the merits 

of any alleged violation and the appropriateness of the proposed penalty. 

 The Respondent filed its Motion to Remand for Reassessment on June 20, 2017, the same 

day it filed its Answer to the Secretary’s Petition for the Assessment of Civil Penalty. Since the 

Motion to Remand for Reassessment was included within its initial filings and this matter has not 

yet been set for hearing, I conclude that the Commission may appropriately address 

Respondent’s Motion. 

IV. Legal Principles and Analysis 

Legislative rules or substantive rules are subject to a notice and comment process before 

promulgation, modification, amendment, or repeal. 5 U.S.C. § 553. As defined in the 

Administrative Procedure Act (APA), 

“[r]ule” means the whole or a part of an agency statement of general or particular 

applicability and future effect designed to implement, interpret, or prescribe law 

or policy or describing the organization, procedure, or practice requirements of an 

agency and includes the approval or prescription for the future of rates, wages, 

corporate or financial structures or reorganizations thereof, prices, facilities, 

appliances, services or allowances therefor or of valuations, costs, or accounting, 

or practices bearing on any of the foregoing. 

5 U.S.C. § 551(4). While the definition of “rule” appears expansive, there are several exceptions 

to the notice and comment requirements: 

Except when notice or hearing is required by statute, this subsection does not 

apply—(A) to interpretative rules, general statements of policy, or rules of agency 

organization, procedure, or practice; or (B) when the agency for good cause finds 

(and incorporates the finding and a brief statement of reasons therefore in the 

rules issued) that notice and public procedure thereon are impracticable, 

unnecessary, or contrary to the public interest. 

5 U.S.C § 553(b)(3). 

 Courts commonly consider the distinction between a legislative rule and a general 

statement of policy to be “enshrouded in considerable smog.” Noel v. Chapman, 508 F.2d 1023, 

1030 (2d Cir. 1975); see also Friedrich v. Sec'y of Health & Human Servs., 894 F.2d 829 (6th 

Cir. 1990); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (D.C. Cir. 1984). An agency’s 

expressed intentions may help distinguish between a legislative rule and a general statement of 

policy. This analysis entails the “consideration of three factors: (1) the agency's own 

characterization of the action; (2) whether the action was published in the Federal Register or the 

39 FMSHRC Page 1712
Code of Federal Regulations; and (3) whether the action has binding effects on private parties or 

on the agency.” Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 

806-07 (D.C. Cir. 2006). While agency labels are indicative, it is the substance of what the 

agency has “purported to do and has done which is decisive.” Drummond, 14 FMSHRC 661, 683 

(May 1992). 

Another consideration that helps clarify the difference between a legislative rule and a 

general statement of policy is whether agency action creates a binding norm. Courts consider the 

effects of agency actions, and determine whether the agency pronouncement (1) imposes any 

rights and obligations or (2) genuinely leaves the agency and its decision makers free to exercise 

discretion. Center for Auto Safety, 452 F.3d at 806; Drummond, 14 FMSHRC at 684 (legislative 

rules “foreclose alternative courses of action or conclusively affect rights of private parties”). A 

statement will likely “be considered binding if it narrowly circumscribes administrative 

discretion in all future cases, and if it finally and conclusively determines the issues to which it 

relates.” Dyer v. Sec'y of Health & Human Servs., 889 F.2d 682, 685 (6th Cir. 1989). Thus, the 

distinction between legislative rules and general statements of policy “turns on an agency’s 

intention to bind itself to a particular legal policy position.” U.S. Tel. Ass’n v. F.C.C., 28 F.3d 

1232, 1234 (D.C. Cir. 1994). 

An agency creates no binding norm when it is free to consider individual facts. National 

Mining Ass’n v. Sec’y of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009). Similarly, when the 

whole context of a general statement of policy “is in a subject area controlled by individual caseby-case discretion, the [statement] is by its very nature not a binding rule.” Id. at 1372-73. A 

court should pay particular attention to the language used in the agency’s pronouncement in 

determining whether the agency action is mere discretionary policy or a binding legislative rule. 

See Brody Mining, LLC, 36 FMSHRC 2027, 2049 (Aug. 2014); Center for Auto Safety, 452 F.3d 

at 806. 

In the instant matter, the Secretary characterizes the General Procedures as a general 

statement of policy that is discretionary in nature and exempt from notice and comment under 

the APA. See 5 U.S.C. § 553(b)(3)(A); Resp. at 4-7. Further, the General Procedures are not 

published in either the Federal Register or the Code of Federal Regulations. 

The General Procedures also fashion no binding norms. No additional obligations or 

rights are created, and target penalties, which can fluctuate significantly (±25% or more), 

preserve prosecutorial discretion. Gen. Proc. at 2. Because they are the exception to the norm, 

special assessments are inherently discretionary. See 30 C.F.R. § 100.5. As a result, the decision 

to apply a special assessment, rather than a regular assessment, is based upon individual case-bycase discretion that extends into the determination of the penalty amount. While the General 

Procedures provide guiding charts and tables, the General Procedures also state that MSHA is 

free to adjust the special assessment based on “unique facts and circumstances.” Gen. Proc. at 2. 

The Secretary is not bound to a specific norm or rule. There are many courses of action 

available. 

KenAmerica argues that U.S. Telephone Association provides guiding precedent. I 

disagree. While the penalty schedule at issue in U.S. Telephone Association has some similarities 

39 FMSHRC Page 1713
to the General Procedures, the FCC abandoned its traditional case-by-case approach for 

assessing forfeitures and adopted a base forfeiture schedule as a percentage of maximum fines 

for each category of licensee that violated the Communications Act. 28 F.3d 1232, 1233 (D.C. 

Cir. 1994). The instant case, by contrast, involves special assessments, which are inherently 

discretionary and assessed on a case-by-case basis. Further, the court in U.S. Tel. Ass’n went to 

great lengths to show that the FCC had rigidly applied their allegedly discretionary penalty 

schedule in 299 out of 300 instances. Id. at 1235. There is no such evidence here.5

Similarly, the Respondent’s reliance on Drummond is misplaced. In that case, Drummond 

asserted that the Secretary unlawfully enforced a substantive program policy letter (“PPL”), 

which outlined an interim excessive history program, without following the necessary APA 

notice and comment process. The Secretary claimed that the penalty proposals under the PPL fell 

within section 100.5 special assessments. The Commission rejected the Secretary’s argument, 

but emphasized that “[s]pecial assessments are based on the condition surrounding the violation 

and ‘neither the nature nor the seriousness of a particular violation will automatically result in a 

special assessment.’” 14 FMSHRC at 690, citing 47 Fed. Reg. 22292 (1982). The Commission 

went on to state that “[a]lthough Secretarial discretion is a cornerstone of the section 100.5 

special assessment program, the PPl creates a rigid formula for the proposed assessment of all 

excessive history cases.” 14 FMSHRC at 690. The Drummond PPL outlined a mathematical 

formula that “allowed no room for maneuver either with respect to the existence or consequences 

of an excessive history.” 14 FMSHRC at 687, 690. Conversely, the General Procedures not only 

maintain the discretion to apply a regular or special assessment, but they also provide substantial 

flexibility in the proposed penalty. Unlike the Drummond PPL, the General Procedures are not 

determinative in nature. 

 On the surface, the General Procedures may appear mechanical, but in reality, they are 

non-binding pronouncements that do not create obligations or bestow benefits. Because the 

Secretary retains significant discretion in proposing special assessment penalties, I conclude that 

the General Procedures are not legislative or substantive rules subject to notice and comment 

under the APA. 

V. Order 

 WHEREFORE, Respondent’s Motion to Remand for Reassessment is DENIED. 

 

/s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

 5 It is unreasonable to infer any broad conclusions based only on the two special 

assessments at issue.

39 FMSHRC Page 1714
Distribution: 

 

Christopher M. Smith, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Jason W. Hardin, Esq., Fabian VanCott, 215 S. State Street, Suite 1200, Salt Lake City, UT 

84111 

/dtm 

39 FMSHRC Page 1715
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 

August 30, 2017 

ORDER LIFTING STAY 

ORDER OF DEFAULT 

ORDER TO PAY 

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

section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue are five dockets with 

a total assessed penalty of $321,753.00. These dockets were consolidated and stayed pursuant to 

an April 6, 2015 Order of the Court. 

 On August 7, 2017, the court scheduled a conference call with the parties for Monday, 

August 14, 2017 at 2:00pm MT to discuss lifting the stay and scheduling a hearing date. August 

7, 2017 Court Email. The email allowed Respondent’s representative one week to contact the 

court if he was unavailable and needed to reschedule the call. Respondent’s representative made 

no such request. On August 14, 2017, Respondent’s representative failed to appear for the 

2:00pm conference call. The parties held the call open until 2:24pm MT, during which the court 

and the Secretary attempted to contact Respondent’s representative via email and phone, 

respectively. Neither party received a response. 

 On August 16, 2017, the court issued a formal written Order to Show Cause ordering the 

Respondent to file a response by August 28, 2017 explaining why it failed to maintain contact 

with the court and why a default order in favor of the Secretary should not be entered pursuant to 

Commission Rule 2700.66. The court received confirmation that the show cause order was 

 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

 

A&G COAL CORPORATION, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. VA 2014-243 

A.C. No. 44-04534-346270 

Docket No. VA 2014-244 

A.C. No. 44-04534-346286 

Docket No. VA 2014-364 

A.C. No. 44-04534-352768 

Docket No. VA 2014-365 

A.C. No. 44-04534-353549 

Docket No VA 2014-383 

A.C. No. 44-04534-353996 

Mine: Prep Plant #2 

39 FMSHRC Page 1716
processed and signed for on August 21, 2017. However, Respondent failed to file a response as 

of August 30, 2017. 

 Under Commission Rules, a Judge may issue an order of default or dismissal after issuing 

an order to show cause for a party’s failure to comply with a Judge’s orders. 29 C.F.R. § 

2700.66. 

 Accordingly, I find Respondent to be IN DEFAULT. The stay is hereby LIFTED and 

Respondent’s notice of contest and request for hearing are DISMISSED. Respondent is hereby 

ORDERED to pay a total penalty of $321,753.00 as originally assessed within thirty (30) days 

of the date of this Order.1

 

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Karen M. Barefield, Attorney, U.S. Department of Labor, 211 7th Avenue North, Suite 420, 

Nashville, TN 37219 

Hagel Campbell, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

P.O. Box 560, Norton, VA 24273 

Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South, 

Arlington, VA 22202 

Patrick Graham, Southern Coal Corporation, 302 South Jefferson Street, Roanoke, VA 24011 

 1

 Checks or money orders should be sent to: Mine Safety & Health Administration, U.S. 

Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.

39 FMSHRC Page 1717